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In Re Marriage of Spomer

OPINION FILED MARCH 27, 1984.

IN RE MARRIAGE OF JOHN A. SPOMER, PETITIONER-APPELLEE, AND KATHLEEN F. SPOMER, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Williamson County; the Hon. Brocton D. Lockwood, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The marriage of petitioner John A. Spomer and respondent Kathleen F. Spomer was dissolved by the circuit court of Williamson County on September 9, 1982. The judgment of the circuit court incorporated a marital settlement agreement signed by the parties. On January 17, 1983, respondent's motion to vacate the judgment of dissolution filed pursuant to section 2-1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1203) was denied. She appeals.

Respondent raised five arguments in her brief. She asserted that: (1) the trial court erred in failing to ascertain whether the visitation privileges of the separation agreement were reasonable and in the best interests of the child; (2) the trial court erred in denying respondent's motion to vacate where the manifest weight of the evidence demonstrated that respondent executed the agreement under duress; (3) the trial court erred in failing to apply the unconscionability standard to determine whether the separation agreement should be vacated; (4) the trial court erred in not finding the separation agreement unconscionable; and (5) the trial court erred in denying respondent's motion for a change of venue.

Oral arguments were heard on October 18, 1983. Then, on November 21, 1983, respondent filed a "Motion for Modification of Appeal," informing this court that she was married on November 17, 1983. Accordingly, she modified her request that the judgment of dissolution be vacated and now requests that this court "* * * vacate only that portion of the trial court's judgment concerning child custody, support and visitation * * *." Respondent's motion for modification of her prayer for relief was granted on December 1, 1983.

• 1 Parties may expressly withdraw or eliminate an argument on appeal even after briefs are filed or the case has been argued. (See O'Hare International Bank v. Feddeler (1973), 16 Ill. App.3d 35, 305 N.E.2d 325; Cole v. Glasgow (1946), 329 Ill. App. 176, 67 N.E.2d 312 (abstract).) It is a necessary corollary to that rule that any arguments which depend on the withdrawn issues must also be deemed waived. Here, the respondent has expressly requested this court not to set aside that portion of the judgment of the trial court which dissolved the marriage of the parties, as opposed to the visitation and support provisions of that judgment. Accordingly, we need not address respondent's initial arguments concerning the alleged duress and unconscionability of the marital settlement agreement and concerning allegedly improper venue. After these arguments are eliminated, respondent's sole remaining contention on appeal is that the trial court erred in failing to ascertain whether the visitation privileges and child-support provisions of the agreement were reasonable and in the best interests of the child. We now turn to this argument.

The child, John Waldemar Spomer, was 11 months old when the petition for dissolution of marriage was filed on June 7, 1982. Under the settlement agreement signed by the parties, respondent received custody of the child, petitioner received six weeks of summer visitation, one week at Christmas and one week at Easter, plus alternate legal holidays and birthdays and the paternal grandparents, W.C. Spomer and Dorothy W. Spomer, received one week visitation every two months which shall continue until the child attends school at which time the visitation should not interfere with the child's attendance at school. Petitioner was ordered to pay $250 monthly child support. On appeal, respondent asserts that the trial court erred in awarding visitation privileges to the grandparents and by failing to ascertain the reasonableness of visitation privileges granted to the petitioner and the child support awarded to respondent. Petitioner replies that courts> favor written agreements between the parties concerning custody and visitation of a child and that the award of visitation rights to the grandparents was proper.

In her petition to vacate, respondent alleged that she signed the marital settlement agreement under duress and overreaching and that the judgment of dissolution which incorporated this agreement was unconscionable. At the hearing on the motion to vacate, it was asserted that because of Kathleen's physical and mental condition at the time she signed the agreement, the assent to the terms was the result of compulsion exerted on her by her husband and the Spomer family.

The parties' child was born in Hawaii, where both parents were serving as first lieutenants in the United States Air Force. Kathleen held two master's degrees and was a graduate from the Air Force Intelligence School. Prior to her marriage she had been employed as a speech writer for the Governor of Illinois.

She had suffered complications from a bladder injury incurred in the delivery of her son by caesarean operation. It resulted in her leaving the Air Force and returning to her home in Decatur for surgery. At the date of the hearing she considered herself "a bit disabled" and she was still under the care of several physicians, including a psychiatrist. She testified that she felt at the time she signed the marriage settlement agreement that she could not get a fair hearing in court in Cairo or in the first judicial circuit because of the influence of the Spomer family, her mother-in-law being a retired circuit judge of that circuit and her husband's brother then serving as the resident circuit judge of Alexander County.

Kathleen's motion for change of venue from the First Judicial Circuit was abandoned after the marriage settlement agreement was concluded and the matter was heard in the circuit court of Williamson County by agreement.

The trial court concluded that Kathleen's consent to the marriage settlement agreement was a reasoned one, arrived at over several months of negotiations between her attorney and the attorney for her husband and that she was an active, informed participant in these negotiations. This conclusion finds abundant support in the record, and we conclude that Kathleen's belated assertions of confusion and compulsion are simply not supported by anything appearing in the record of the hearing on her motion to vacate. The terms of the settlement agreement were finally concluded after a lengthy conference at her attorney's office in Decatur, and the final agreement was prepared by her attorney.

• 2 It appears to us that an award of $250 monthly is not unreasonable support for a 15-month-old child, considering that support awards may be changed from time to time as circumstances dictate. We need say nothing more about the award of child support.

• 3 This agreement was not the product of duress but of compromise after lengthy negotiations. Measured by any standard, we agree with the trial court that the terms of the agreement are not unconscionable. See Ill. Ann. Stat., ch. 40, par. 502(b), Historical & Practice Notes, at 400-01 (Smith-Hurd 1980); In re Marriage of Carlson (1981), 101 Ill. App.3d 924, 428 N.E.2d 1005.

During these negotiations, Kathleen advised her attorney that she had no objection to grandparental visitation one weekend every month provided the child would be ...


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