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In Re Marriage of Black

OPINION FILED MAY 1, 1985.

IN RE MARRIAGE OF DENISE M. BLACK, PETITIONER-APPELLANT, AND JEFFREY L. BLACK, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Du Page County; the Hon. Kevin Connelly, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

Petitioner, Denise M. Black, filed a petition for dissolution of her marriage to respondent, Jeffrey L. Black, in November 1981. In September 1982, Denise filed a petition for temporary custody and child support for the parties' minor child. On the same date, the maternal grandmother and paternal grandparents of the child filed petitions to intervene and for custody. The court granted leave to intervene to all the grandparents. Following a hearing on the petition for temporary custody, the court found that neither of the parents was then able to provide for the best interests of the child, then age 3 1/2, and ordered temporary custody awarded to the paternal grandparents, with both parents to pay weekly child support. The cause was set for trial on November 28, 1983, at which time Denise's counsel sought a continuance or, in the alternative, a bifurcation of the trial to reserve the issue of the psychological evaluation of Denise. Both motions were denied. Denise's counsel then sought a voluntary dismissal of the petition for dissolution and the petition for custody. All other counsel objected because of the intervening petitions by the grandparents for custody of the child, which was the primary concern of all the parties. The court denied Denise's motion for a voluntary dismissal, and the matter proceeded to trial. On the third day of trial, Denise requested that she be allowed to discharge her attorney of record and to substitute new counsel. The court denied the motion.

The trial proceeded, and Denise rested her case in chief on the ninth day of trial. During the testimony of Jeffrey's first witness, the court permitted a recess. The parties then indicated to the court that they had reached an oral settlement agreement resolving all issues. The parties signed a written order of default by stipulation as to grounds and all issues. After hearing evidence of the oral settlement agreement from all parties, the court verbally entered a judgment of dissolution of marriage. A written judgment order was entered on February 2, 1984, after a hearing on Denise's objections to the settlement agreement. Denise now appeals from that judgment.

Denise argues that the trial court erred in entering judgment for dissolution when she objected to the terms of the settlement agreement because: (1) she was coerced into agreeing to the oral settlement agreement, and (2) she did not understand the terms of the agreement.

• 1, 2 Section 502 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 502) is generally intended to encourage parties to reach an amicable settlement of their rights. When a party seeks to vacate a property settlement incorporated into a judgment of dissolution, all presumptions are in favor of the validity of the settlement. (In re Marriage of Riedy (1985), 130 Ill. App.3d 311, 313.) Although the law looks with favor upon such settlements, the terms of an agreement will not be given effect if procured by fraud or coercion or if contrary to any rule of law, public policy or morals. 130 Ill. App.3d 311, 313.

Evidence of coercion must be clear and convincing in order for a court to set aside the agreement on this basis. (In re Marriage of Riedy (1985), 130 Ill. App.3d 311, 314.) Here, Denise bases her claim of coercion upon her belief, as testified to at the February 2 hearing, that she did not enter into the verbal agreement on her own free will but that she was "pushed into it" by the attorneys of record.

The record reveals that on December 7, 1983, the ninth day of trial, the parties entered into the oral settlement agreement. After hearing the presentation of the agreement, the court called each of the parties, including Denise, under oath to attest that the agreement was in the best interests of the child, to which each party answered affirmatively. Jeffrey's counsel then asked all the parties if they entered into the agreement freely and voluntarily, to which each of them individually responded yes.

On February 2, 1984, a hearing was held on motion of Jeffrey to present and have entered the judgment of dissolution incorporating the terms of the oral settlement agreement. Denise objected, and the court permitted her to testify as to the particular portions of the agreement she found objectionable. She testified that, to her recollection, she had not agreed to give Jeffrey permanent custody of the minor child. She recalled hearing the oral recitation of the settlement agreement on December 7, but she believed she had said that she did not have a choice as to whether to enter into the agreement. She understood the agreement to mean she could "fight the custody," not merely stay the transfer of the child after the first 1 1/2 years. She believed they were agreeing to continue the temporary custody order of the court.

On cross-examination, Denise agreed she heard Jeffrey's counsel tell the court on December 7 that the parties stipulated that, in the best interests of the minor child, her permanent care, custody, control and education were to be awarded to Jeffrey. Further, she agreed she heard counsel say that after 1 1/2 years the physical possession would be transferred from the paternal grandparents to Jeffrey, as permanent custody. She testified that she did not object to any of the terms of the agreement as presented to the court. She stated that the written agreement (as incorporated into the judgment for dissolution) differed from the verbal agreement.

Denise further testified that she did not feel she made the verbal agreement of her own free will, but that she "was pushed into it by four attorneys and just the way everything was going." She agreed her attorney had told her that she did not have to agree to it and that she could continue with the proceedings. On cross-examination, she stated that she decided on her own to enter into the agreement. She further testified that she knew her choices were either to continue with the litigation or to negotiate, and that she decided to negotiate. Prior to entry of judgment, the trial court carefully reviewed the agreement and the consent of each party to be assured that it was voluntarily given.

Denise has failed to provide any support for her allegations that she was "pushed into [the agreement] by four attorneys" and that she did not "have a choice" as to whether to enter into the agreement. As such, the allegation of coercion is insufficient to invalidate the settlement agreement. Cf. In re Marriage of Kloster (1984), 127 Ill. App.3d 583, 585-86.

• 3 Furthermore, considering all of the facts, Denise's claim that she did not understand the agreement is not substantiated. Moreover, she did not object to any of the terms of the agreement as presented to the court. Where the contents of an agreement are testified to and the objecting party fails to object or to give evidence to the contrary, the agreement is established. (In re Marriage of Kloster (1984), 127 Ill. App.3d 583, 586.) A property settlement should not be disregarded simply because one party has second thoughts. (127 Ill. App.3d 583, 586.) We conclude that Denise's statement affirming the settlement and her failure to object to the recitation of the agreement show she understood and agreed to the settlement. See In re Marriage of Kloster (1984), 127 Ill. App.3d 583, 585; cf. Beattie v. Beattie (1977), 53 Ill. App.3d 501, 507.

• 4 Denise also argues that the trial court erred in approving the custody terms of the settlement agreement since such terms were unconscionable. In particular, she submits that the agreement is unreasonably one-sided and favorable to Jeffrey because it: (1) relinquished custody after eight days of trial; (2) required her to pay child support "on the salary of a waitress"; and (3) granted physical possession of the minor child to adverse intervening parties.

A careful reading of Denise's testimony at the February 2 hearing shows that she raised only two objections to the settlement agreement: (1) that she was coerced into agreeing to the oral settlement agreement in open court on December 7, 1983, and (2) that she did not understand what she was agreeing to. Neither she nor her counsel objected that the terms of the agreement were unconscionable. In fact, no claim was ...


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