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In Re Marriage of Lorenzi

OPINION FILED MAY 30, 1980.

IN RE MARRIAGE OF CHARLES EDWARD LORENZI, PETITIONER-APPELLEE, AND JOYCE B. LORENZI, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of La Salle County; the Hon. JAMES WARING, Judge, presiding.

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

Mrs. Joyce Lorenzi appeals from a denial, without hearing, of her post-judgment petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72), subsequent to the dissolution of her marriage to Charles Edward Lorenzi.

In contemplation of divorce, Charles and Joyce Lorenzi met with Attorney Max Gulo, Mr. Lorenzi's attorney, at Attorney Gulo's office on October 4, 1978. At this meeting, three documents were executed. The first was a petition for dissolution of marriage signed by Charles Lorenzi. His prayer for relief included, inter alia, "[t]hat petitioner be awarded all non-marital property owned by the petitioner and petitioner's just portion of the marital property of the parties." The petition recited that "[t]he parties to this cause * * * own real estate located at 1404 North Otter Creek Street, Streator, subject to a lien at Streator Home Building and Loan. They own household goods and furnishings, and a 1977 Dodge Van, subject to lien at Union National Bank, Streator. They also are indebted for a Penney's charge account and a loan at Union National Bank." No indication was made in the petition as to how the petitioner wished this property to be divided.

The second document executed at that time and place was a response by Joyce B. Lorenzi, which "admits the marriage and the separation of the parties hereto, but denies all other allegations contained in the petition filed herein, and demands that the petitioner be required to give strict proof thereof."

The third document signed on October 4 in Attorney Gulo's office is a "Consent and Appearance," whereby Joyce B. Lorenzi waived "all manner of summons, process or notice" and entered her "appearance in this cause in writing, as fully as if [she] had been served with summons issued out of this Court," consenting that judgment might be entered therein at the discretion of the court. No other documents bearing this date are included in the record. At this meeting with her husband's attorney, Mrs. Lorenzi was without counsel.

Trial on the cause was held two days later, on October 6, 1978. Mrs. Lorenzi was not summoned and did not appear. At trial, the only witness was Charles Lorenzi, who testified as to the grounds for divorce and further testified that the parties had entered into an oral property settlement, whereby Joyce Lorenzi would receive her hope chest, lamps, plants, stereo, tapes, records, a bean bag chair, and her personal belongings. Charles Lorenzi was to receive all the rest of the household goods and furnishings, the 1977 Dodge van, and the real estate owned by the parties. He was to pay all outstanding debts of the parties, these primarily being purchase money liens against the property he was to receive as per the "oral settlement." The same day, the court entered an order dissolving the marriage of the parties, and awarding the property in accordance with the "oral settlement" testified to by Charles Lorenzi, except that the bean bag chair and her personal belongings were not included in Mrs. Lorenzi's award. Mrs. Lorenzi was ordered to execute and deliver to Charles Lorenzi her quitclaim deed conveying her interest in the real estate.

Some six months later, in April of 1979, Joyce Lorenzi filed with the Circuit Court a petition for post-judgment relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) and an accompanying affidavit. In her petition she claimed that a "property settlement was represented to the court as agreed by the parties, but that, in fact, no such agreement was made by" her, that the terms of the settlement were unjust in that Charles Lorenzi received an equity in the couple's property valued at $23,800, whereas she, Joyce Lorenzi, received only $925 worth of property, and furthermore, that the agreement referred to in said judgment was effectuated by fraud practiced upon her in that the terms of the purported agreement were never explained to her by her then husband or by anyone representing her, and her then husband tricked her in the proceeding that followed and culminated in the judgment entered on October 6, 1978. Both parties submitted affidavits and briefs, and Attorney Gulo also submitted an affidavit. On June 6, 1979, the petition was denied without hearing.

Mrs. Lorenzi contends in her petition, and again on appeal, that the trial court erred in failing to identify the marital and non-marital property of the respective parties, and in failing to justly apportion the parties' marital property. Section 503(c) of our Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par 503(c)) states that "[i]n a proceeding for dissolution of marriage or declaration of the invalidity of marriage, * * * the court shall assign each spouse's non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors * * *." However, section 502 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 502) states:

"(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral separation agreement containing provision for disposition of any property owned by either of them * * *

(b) The terms of the separation agreement * * * are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

(c) If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or upon hearing, may make orders for the disposition of property, maintenance, child support, and other matters."

Section 405 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 405) states:

"If the respondent is in default, the court shall proceed to hear the cause upon testimony of petitioner taken in open court, and in no case of default shall the court grant a dissolution of marriage or legal separation or declaration of invalidity of marriage, unless the judge is satisfied that all proper means have been taken to notify the respondent of the pendency of the suit. Whenever the judge is satisfied that the interests of the respondent require it, the court may order such additional notice as may be required."

• 1, 2 A reading of section 405 indicates that, to the extent confessions of judgment are valid in civil proceedings in this State, they are valid in proceedings to dissolve marriages. (See Ill. Rev. Stat. 1977, ch. 40, par. 410: "The process, practice and proceedings under this Act shall be the same as in other civil cases * * *.") It is clear from section 502(b) that the terms of a separation agreement are binding upon the court so long as the agreement is not unconscionable. In order to give effect to both sections 502 and 503, we must read 503 as mandating the court to denominate property as marital and non-marital and to justly apportion the marital property of the parties, considering the factors therein enumerated, only in the absence of a conscionable settlement agreement entered into by the parties, as discussed in section 502. Therefore, the trial court did not err in ...


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