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In Re Marriage of De Frates

OPINION FILED DECEMBER 8, 1980.

IN RE MARRIAGE OF LORRAINE J. DE FRATES, PETITIONER-APPELLEE, AND WALTER DE FRATES, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. MONICA D. REYNOLDS, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 12, 1981.

Petitioner, Lorraine J. De Frates, brought an action for dissolution of marriage against respondent, Walter De Frates, in the circuit court of Cook County. This controversy arises from the incorporation of an oral settlement agreement into the final judgment. The trial court conducted a "prove-up" of both the grounds for dissolution and the oral agreement. Respondent orally objected to the entry of the judgment and asked to have the prove-up hearing vacated. He later filed a written post-trial motion to vacate the judgment. Respondent contended that the agreement was not valid. In both instances, the trial court denied his motion. Respondent appealed (case No. 79-1829) and subsequently, pursuant to motion, was ordered to pay petitioner temporary appellate attorney's fees of $2,000. Respondent also appealed from this order (case No. 80-0929) and we have consolidated the appeals.

Respondent asserts that the parties had not agreed to all the terms of the oral settlement agreement prior to the prove-up. He submits that the trial court decided some important issues and essentially completed an agreement for the parties.

The parties were married on November 14, 1969, divorced on April 10, 1974, and remarried on May 29, 1976. One child, John Jeffery De Frates, was born on November 30, 1970. On May 25, 1978, Lorraine J. De Frates filed a petition for dissolution of marriage. On May 22, 1979, the parties and their attorneys appeared in the circuit court and represented that they had reached an oral property settlement agreement.

The record reveals that the following material terms of the oral agreement were reached without discord or discussion in open court by the parties: (1) Petitioner was to have custody of the parties' eight-year-old son. (2) Based on respondent's net take-home pay of $187 per week and petitioner's gross earnings of $125 per week, respondent would pay $40 per week child support. (3) Both parties waived maintenance. (4) All non-marital property would go to the appropriate spouse. The parties owned the marital home in joint tenancy. Respondent agreed to transfer his interest to petitioner for $5,000. (5) Debts were clarified and assigned with the assistance of the court. (6) Respondent was to contribute $750 towards petitioner's trial attorney's fees.

The prove-up of the other items in the settlement agreement entailed some colloquy between the parties, their attorneys and the court. Agreement on details was reached with the court's assistance and guidance.

Lorraine J. De Frates testified that her husband was to have rights of reasonable visitation. Respondent was to see his son one day during the week: from 5 p.m. until 8 p.m. during the school year, and from 5 p.m. until 9 p.m. when school was not in session. There was a colloquy between the parties, their attorneys and the court as to the details of this arrangement. With the court's assistance, the parties agreed that visitation would be on Tuesday or, upon 24-hour notice to petitioner, on Thursday. Respondent would pick up the child at home and not at school.

Petitioner further testified that the parties agreed that respondent would have visitation rights on alternate weekends. The parties expressed confusion over whether Friday night or Saturday would be the start of the weekend and, with the court's assistance, the parties agreed that during June through September respondent's weekend visitation would be from 5 p.m. Friday through Sunday at 9 p.m. His visitation during the remaining months would be from Saturday at 11 a.m. until Sunday at 8 p.m.

During petitioner's testimony, there was also a discussion about group counseling. Petitioner initially testified that both parties would continue group counseling. However, she then remarked, "I am not going to counseling with Mr. De Frates," and asked, "What am I going to counseling for?" At this point, the court interjected:

"THE COURT: Whenever we go through a change in our life, it is sort of important, and you are really going for the benefit of your child. Nobody is pointing any finger, but there is no one in this room that could not profit by counseling, starting with me."

This explanation apparently convinced the parties that counseling would be appropriate. Thereafter, neither party objected to group counseling sessions.

Further discussion concerned a life insurance policy for the parties' son. Respondent owned the policy and petitioner wanted to own the policy and pay the premiums. Respondent interjected, "Well, I want to keep it for Jay, and I will pay the premium." In offering to pay the premium, respondent was apparently concerned only with assuring coverage for the son, Jay. This objective was attained when petitioner agreed to provide respondent proof of premium payments and respondent made no further objections.

The next item covered at the hearing was a bank account in the names of the parties, allegedly as trustees. This item was submitted to the court's discretion by agreement of the parties. The final discussion concerned the parties' insurance claim on a restaurant they had owned in Indiana which had been destroyed by fire. The trial court decided that they should split evenly any proceeds from the claim. Neither party disagreed with this resolution.

Petitioner testified that she fully understood the agreement as propounded to the court by her attorney. She stated that she was not forced or coerced into entering the agreement. At the end of the hearing, upon questioning by the court, respondent stated that he had ...


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