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In Re Marriage of Olsher



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.


The petitioner, Harvey J. Olsher, *fn1 appeals from a judgment of the circuit court of Cook County apportioning the parties marital property, awarding maintenance and child support to the respondent, Gail P. Olsher, and awarding attorneys fees. On appeal, the petitioner urges that the trial court: (1) erroneously vacated the property settlement entered into by the parties in that there was an absence of fraud, coercion, or violation of public policy; (2) failed to value certain marital property in disregard of the requirements of section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)); (3) awarded excessive amounts of child support, maintenance, and attorneys fees; (4) erred in establishing a trust for each of the parties' minor children which transferred the corpus of the trust to each child upon their majority; and (5) erroneously required the parties to repay an alleged debt to respondent's father from the house proceeds in contravention of an order of court restricting the parties from incurring debts during the separation period. We reverse in part and affirm in part.

Petitioner filed a complaint for divorce on November 1, 1976, on the grounds of mental cruelty. On that same day, upon petitioner's motion, the trial court entered a temporary restraining order prohibiting the parties from disposing of any assets in their possession or over which they exercised control and from "incurring any debt for which the other party would or could become legally obligated for payment." This was continued throughout the course of these proceedings. The respondent generally denied the petitioner's allegations and filed a counterclaim for divorce, also alleging mental cruelty. This counterclaim was subsequently amended to allege desertion as an additional ground.

On June 15, 1977, during the pretrial conference of this matter, the parties reached a property settlement. Thereafter, the petitioner dismissed his complaint and a proveup was held that same day on the respondent's amended counterclaim. After the proveup, the trial court orally granted the parties a judgment for divorce and stated that the parties' oral agreement would be incorporated into the final judgment for divorce. The court then ordered counsel to prepare the final judgment order and to have the parties approve the property settlement agreement before submitting the judgment order to the court for its approval. Before a copy of the final judgment order had been prepared or approved by counsel, however, the respondent filed a petition to set aside the proceedings. Pursuant to that motion, the trial court, on September 21, 1977, reinstated the complaint and counterclaim and returned the case to the contested trial call. An attorney was subsequently appointed by the court to represent the interests of the minor children. (Ill. Rev. Stat. 1977, ch. 40, par. 506.) Pursuant to section 403(e) of the Illinois Marriage and Dissolution of Marriage Act, a judgment of dissolution of marriage *fn2 was entered on November 10, 1977.

The following facts are pertinent to the issues raised by the parties on appeal. The parties were married on June 18, 1961, and separated on October 13, 1976. During the marriage three children were born: Cindy, Scott, and Steven. Until their separation, the parties lived with their children at the marital home located at 9223 North Hamlin, Skokie, Illinois. This marital property was held in joint tenancy by the parties and was estimated to have a fair market value of between $128,000 to $140,000, with a current indebtedness of $45,000. Other marital property included four shares of stock in Foremost Sales Promotion, Inc. (hereinafter Foremost), held by the parties in joint tenancy, the house furnishings valued at from zero to $20,000, several insurance policies, and a profit-sharing plan at Foremost valued at near $20,000 and payable upon the petitioner's permanent disability or upon his reaching age 65.

The record also discloses that the 13-year-old son, Scott, suffers from childhood schizophrenia. Scott is currently enrolled at the Menninger Foundation (hereinafter Menninger) in Topeka, Kansas, where he is receiving treatment in a long-term treatment program. The nature of Scott's illness requires that he receive residential treatment geographically separated from his family. It is of the opinion of the Menninger staff that Scott will require two to three years of such treatment at the average yearly cost of approximately $66,000. The extent of the parties' insurance coverage for this hospitalization and for Scott's earlier hospitalization at Forest and Old Orchard Hospitals is uncertain.

After hearing the evidence on the property and support issues, the trial court entered an order on May 5, 1978, providing in pertinent part that: (1) the respondent was to receive custody of the children; (2) the marital home was to be sold and the proceeds used to pay, among other debts, money allegedly owed to Irving Robins, respondent's father; (3) attorneys' fees were to be paid from the proceeds in the amount of $7,000 for Thomas T. Stern, petitioner's attorney, $7,000 for Edelman and Rappaport, respondent's attorney, and $2,500 to Michael Weininger, the court-appointed guardian ad litem; (4) $5,000 trusts for Cindy and Steven were to be established from the proceeds with the balance of the proceeds placed in trust for Scott; (5) petitioner's contribution to the profit-sharing plan should be divided between Cindy and Steven and placed in their respective trust accounts with any contributions made to the plan from Foremost to be placed into Scott's trust; (6) petitioner was to pay 32% of his net income as child support and 5% as maintenance; (7) petitioner was to be responsible for all extraordinary medical expenses; and (8) each party was to receive $12,000 from the sale of the home.

• 1 The petitioner has challenged the applicability of the new Illinois Marriage and Dissolution of Marriage Act to this action. The new act took effect on October 1, 1977, and provides that it shall apply to all actions in which a judgment had not been entered. (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) Neither the judgment for dissolution of the marriage entered on November 10, 1977, nor the property disposition order of May 5, 1978, was entered prior to the October 1, 1977, effective date, consequently, this matter is governed by the new act. Schuppe v. Schuppe (1979), 69 Ill. App.3d 200, 387 N.E.2d 346.

• 2-4 Before going on to consider the petitioner's arguments on appeal, we must answer respondent's contention that this court does not have jurisdiction to hear this appeal. The respondent contends that neither the May 5, 1978, order, nor the September 21, 1977, order, may be considered on appeal because the former order is a consent decree and consequently not appealable while the latter order was not recited by the petitioner in his notice of appeal as required by statute. (Ill. Rev. Stat. 1977, ch. 110A, par. 303(c), (2).) We reject both contentions. It is well established that in a contested trial, the mere approval of the form of a decree by counsel does not convert the decree into a consent decree or otherwise act to show a party's acquiescence in an order. (Sampson v. Village of Stickney (1962), 24 Ill.2d 134, 180 N.E.2d 457; James C. Wilborn & Sons, Inc. v. Heniff (1965), 56 Ill. App.2d 217, 205 N.E.2d 771.) The record reveals that, although the issue of the divorce was not contested, the disposition of property was hotly contested. We, therefore, find that under Sampson, this order was not a consent decree but a final and appealable order. As the petitioner filed a timely notice of appeal we have jurisdiction. The September 21, 1977, order setting aside the settlement agreement was interlocutory in nature (Wessel v. Gleich (1975), 33 Ill. App.3d 204, 337 N.E.2d 743); consequently, it may now be reviewed as part of the record brought upon appeal. Conover v. Smith (1974), 20 Ill. App.3d 258, 314 N.E.2d 638; Downey v. Industrial Com. (1969), 44 Ill.2d 28, 253 N.E.2d 371.

We next consider the petitioner's contention that the trial court's order of September 21, 1977, setting aside the property settlement reached by the parties on June 15, 1977, and returning the case to the contested trial call was improper. As a general rule, courts> look favorably upon property settlements (Guyton v. Guyton (1959), 17 Ill.2d 439, 161 N.E.2d 832; Walters v. Walters (1951), 409 Ill. 298, 99 N.E.2d 342) because they represent an attempt by the parties to settle their property interests amicably. As such, courts> will uphold this type of an agreement once approved by the court absent a finding that it is unfair or unequitable, tainted with fraud, the product of coercion or against public policy or morals. (James v. James (1958), 14 Ill.2d 295, 152 N.E.2d 582; Gaddis v. Gaddis (1974), 20 Ill. App. 267, 314 N.E.2d 627.) Such a determination may be made upon a party's motion to set aside the proceedings (James v. James; Crawford v. Crawford) or by the court upon its own initiative (Mayeur v. Mayeur (1976), 42 Ill. App.3d 7, 355 N.E.2d 358). The decision to set aside a property settlement "must be determined in light of the positions and needs of the individuals concerned * * *." Horwich v. Horwich (1979), 68 Ill. App.3d 518, 386 N.E.2d 620.

• 5, 6 The record in the present case reveals that the trial court personally stated its doubts concerning the equity of the parties' settlement agreement and conditioned acceptance of the agreement upon the parties' approval of the agreement once it was reduced to writing. Neither respondent nor her counsel approved the agreement subsequent to the first prove-up on June 15, 1977, nor has a written order been approved by counsel and submitted to the court for entry of the decree as requested by the trial court. Furthermore, the respondent's petition to set aside the June 15, 1977, proceeding informed the court that the parties' son, Scott, suffered from a severe psychological problem which was not totally taken into consideration in the property agreement of June 15, 1977. Under this set of circumstances, the trial court's determination that the parties were not bound by the proposed agreement was proper. Moreover, as it was necessary to conduct a hearing as to an equitable distribution of the property (Mayeur v. Mayeur), it was proper to return the cause to the contested trial call.

The petitioner next contends that the trial court's disposition of the four shares of stock in Foremost was improper because the court failed to place a value upon the stock before disposing of it as an item of marital property, as required by the new Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)(2).) *fn3 The respondent contends that as the stock had no market value, it was unnecessary for the court to consider the value of the stock in settling upon an equitable division of the parties' property.

• 7 Under the new act, the property of the parties to a marriage is classified as either marital or non-marital property. In classifying the parties' property there is a presumption that all property obtained during the marriage is marital property despite the form of the title in which the property is held. (Ill. Rev. Stat. 1977, ch. 40, par. 503(b).) Although the respondent alleged in her counterclaim that she had special equities in the stock which under the new act might justify classifying the property as non-marital, no proof was offered to substantiate these allegations and therefore, the presumption of marital property is not rebutted. Marital property, the act states, should be divided without regard for the fault of the parties in "just proportions" taking into consideration all relevant factors including:

"(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution ...

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