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In Re Marriage of Carlson



APPEAL from the Circuit Court of Cook County; the Hon. MARION E. BURKS, Judge, presiding.


Petitioner John H. Carlson appeals from a judgment partially vacating a judgment of dissolution of marriage pursuant to section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) The judgment of dissolution incorporated a written separation agreement which provided for division of the parties' property and award of custody of the parties' two minor children to petitioner. The court modified the prior judgment by declaring null and void the marital settlement and entering a temporary order allowing for joint custody of the minor children and transferring physical custody of the children to respondent Janis L. Carlson.

On appeal, petitioner contends that (1) respondent was estopped to attack the validity of the separation agreement; (2) the trial court erred in determining that petitioner coerced, compelled and induced respondent to enter into the separation agreement because (a) the trial court's finding of inducement and coercion was not supported by clear and convincing evidence, and (b) the separation agreement was not unconscionable; (3) petitioner's counsel was improperly examined as a witness under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60); and (4) the trial court erred in ordering the transfer of the physical custody of the parties' two minor children to respondent.

Petitioner and respondent were married on August 3, 1974. The parties' first child was born on December 30, 1975; the second, on June 21, 1977. For some time prior to May of 1979, the parties began experiencing a considerable amount of difficulty with their marriage. They ceased sleeping together as husband and wife on March 1, 1979. In May of 1979, petitioner sought marriage counseling, in which respondent refused to take part.

Shortly thereafter petitioner employed a private detective firm. During the Memorial Day weekend, respondent left the marital residence located in South Holland, Illinois, and went to Bureau, Illinois. During that weekend, respondent engaged in sexual relations with the man she later married.

Upon respondent's return to the marital home, she consulted an attorney. On June 12, 1979, respondent executed a petition for dissolution of marriage. On or about June 15, 1979, respondent informed petitioner of her meeting with the attorney. After being so informed, petitioner asked respondent not to file for marital dissolution.

On June 18, 1979, petitioner received a telephone call from respondent's foster father, Reverend Ronald Brown. The Reverend Brown had been informed by Debbie Brown, his daughter, that respondent was having an affair with another man. During the telephone conversation petitioner revealed that he had employed detectives and had been advised that respondent was involved with another man.

On July 3, 1979, respondent's attorney filed on behalf of respondent an action for marital dissolution. Petitioner was served with summons on July 10, 1979. Respondent had discharged her attorney sometime in the early part of July, unaware that a case had been filed on her behalf. The case was subsequently dismissed on July 24, 1979.

On July 14, 1979, the parties met at the marital home with the Reverend and Mrs. Brown, and with petitioner's father and brother. Reverend Brown testified that during that meeting both petitioner and petitioner's father stated that, based upon the evidence they had against respondent, they could take the children from her and leave her with nothing. Respondent testified that at the meeting on July 14, 1979, petitioner told her that she did not deserve the children, that she was a tramp, that she had sinned against him, that she was a "lousy" mother, that he would take the children away from her no matter what he had to do, leave her with nothing and put her in the streets where she belonged. She testified that petitioner made continuous threats that he would take the children away from her and either put them in a foster home or take them to Sweden. She was told by her husband that his father's relatives would be more than happy to raise the children in Sweden.

The following day, July 15, 1979, respondent stated that she was leaving to be with the man she subsequently married. Shortly thereafter petitioner retained attorney Jerome DePalma. On July 27, 1979, petitioner and respondent went to DePalma's office. Petitioner testified that he introduced respondent to DePalma and stated that the parties had come to an agreement and that they wanted to dissolve their marriage. He testified that respondent did not say very much and that she said nothing specific. Petitioner testified that DePalma inquired as to the nature of the property settlement they agreed upon. Petitioner testified that respondent had nothing to say relative to the agreement. Petitioner explained to DePalma that the parties had reached an agreement as to specifics with regard to their marital property. Respondent testified that prior to going to DePalma's office the first time she did not have any settlement discussions with petitioner. She also stated that when she went to DePalma's office for the first time she had no recollection of any discussions which occurred in that office.

The parties returned to DePalma's office on August 2, 1979. DePalma presented to the parties a property settlement, a petition for dissolution, an answer and a quit-claim deed transferring respondent's interest in the marital home to petitioner. As respondent read these documents, DePalma read aloud. After stating that she understood the terms of the pro se appearance, answer, property settlement and quit-claim deed, respondent signed each document. Respondent also executed a letter stating that DePalma was not her attorney, that she understood the importance of having counsel to protect her interest, but that she did not desire to retain her own attorney. Respondent was requested to and did read this letter, stating that she understood its contents. DePalma testified that he did not advise respondent that the division of marital property was not related to marital misconduct. Under the terms of the agreement, petitioner was to be awarded custody of the parties' two children, the marital home and the parties' 1975 Ford Torino automobile. Respondent was to be awarded certain household items and $55 per week for 16 weeks.

Respondent testified that while she was in DePalma's office papers were handed to her and she was asked to read them. She stated that she was given only two minutes to look them over and handed them back. She was not aware that she was being charged with adultery. She testified that she had no recollection of signing a deed to the property at the time of the meeting. She stated that the total length of time in the office was not more than 20 minutes. She was not given nor did she take any documents with her when she left. She never received any mail from DePalma thereafter. Respondent also testified that in the summer of 1979 petitioner stated that the custody of the children would be returned to her after she set up housekeeping and obtained a job.

DePalma testified that he mailed a copy of the judgment of dissolution of marriage to respondent at the address in South Holland, Illinois. Respondent testified that she first saw a copy of the judgment of dissolution of marriage when it was given to her by petitioner in November of 1979.

Mildred Dugan testified that she had known respondent since birth. She had an opportunity to observe respondent in relation to the parties' two children for a period of two years prior to the separation of the parties and stated she observed that the children always seemed to be well taken care of and were always well-dressed. They looked as though they were well nourished. When respondent came to visit her, she always brought well-prepared food for the children. When the children were small, she would bring juice and baby food and prepare the food in Dugan's home. Dugan stated that in her opinion respondent was a good mother who was always thoughtful of her children, over-protective of them, and ...

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