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In Re Marriage of Beck

OPINION FILED MAY 5, 1980.

IN RE MARRIAGE OF PATRICK LAWRENCE BECK, PETITIONER-APPELLEE, AND JANICE MARY BECK, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Lake County; the Hon. ALPHONSE WITT, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Janice Mary Beck (wife) appeals from an order dismissing her petition to vacate a judgment of dissolution of her marriage with Patrick Lawrence Beck (husband), and from an order denying post-decretal relief.

The judgment of dissolution, which included a disposition of property rights based upon an alleged oral agreement which the wife disputes, was entered on August 29, 1978. The wife filed a petition to vacate the judgment on November 9, 1978, pursuant to section 72 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). She has, essentially, alleged two grounds for granting her petition to vacate the judgment of dissolution: (1) that a fraud was committed upon the court resulting in the entry of the judgment; and (2) that it was manifestly unfair and inequitable.

For several months prior to July 1978, the husband and wife had not been getting along and had generally discussed divorce. The wife testified on cross-examination that she had discussed the disposition of the car, the house and the custody of the child with her husband but that they "never came up with an agreement." She said the discussion as to the type of settlement she might agree to was "[s]ort of" that she would take the car and he would keep the van providing he made payments on it and he would make mortgage payments on the house which he was going to keep. She also said that she "in a way" agreed to the husband having custody of the child.

On July 1, 1978, the husband told the wife that he had an appointment with an attorney whom the wife had never met. At the meeting the attorney (who is not the attorney representing the husband on the appeal) told them that before he started any papers "he wanted to make sure that this is what [they] both wanted." The wife testified that the husband said, "yes it was." She said "the next thing I knew papers were being thrown at me to be signed." She signed them because she "didn't know what was going on."

The attorney prepared a handwritten document while the parties were in his office. The document admitted into evidence was addressed to an attorney whom the wife did not know, and contained the following:

"Dear Mr. [Attorney]:

Please represent me in the divorce filed by my husband in Lake County, Illinois. I do not wish to contest the divorce, however, I want the following items in the decree. They are:

Number 1, we both waive maintenance (alimony).

2, I retain my 1972 Oldsmobile.

3, my husband keeps his 1978 Chevy van and pays the loan on it.

Number 4, my husband will retain as his sole property his home and furnishings at 1505 Leslie, Round Lake Beach, and be responsible for the mortgage on it.

Number 5, each party will retain their personal effects and clothing.

Number 6, my husband shall have custody of our minor child, Jennifer Marie, and I shall have ...


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