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In Re Marriage of Moran



Appeal from the Circuit Court of Cook County; the Hon. Robert E. Cusack, Judge, presiding.


Rehearing denied October 10, 1985.

On July 26, 1983, the trial court entered a judgment dissolving the marriage of petitioner Marianne Moran (Marianne) and respondent John McElroy Moran (John). Incorporated into the judgment was the parties' marital settlement agreement. On August 24, 1983, within 30 days of the entry of the judgment, Marianne filed a motion to vacate the judgment, alleging that the settlement agreement was obtained by fraud, duress and coercion and was unconscionable. Following an evidentiary hearing, the trial court denied Marianne's motion to vacate, and this appeal followed. For the following reasons, we reverse and remand.

The parties were married in June 1956. At the time Marianne filed her petition to dissolve the marriage in November 1981, she was 47 years old and John was 50 years old. When the judgment for dissolution was entered, the parties had been married for 27 years, Marianne was an unemployed housewife and John was a cardiovascular surgeon and professor at Northwestern Medical School. At that time, the parties' four sons were ages 17, 19, 23 and 25.

At the hearing on her motion to vacate, Marianne testified that in January 1983 she changed her attorneys in the dissolution proceeding because she was dissatisfied with the progress being made. She retained Edward Rosenberg (Rosenberg) and the law firm of Lake, Rosenberg & Associates. On January 25, 1983, Marianne met with Rosenberg to discuss her demands for settlement. She advised him she wanted to sell the marital home in Riverside and the parties' jointly owned condominium on Chestnut Street in Chicago. She told Rosenberg she wanted to share equally in the marital estate and 12 years of maintenance. At that meeting, Marianne signed a retainer agreement for $5,000.

On March 10, 1983, Marianne met with Rosenberg and complained that John was not paying the bills on time and she had to repeatedly ask him for money. Rosenberg told Marianne to see Stuart Levin, an accountant, to review John's tax returns and finances because "there might be more money than her husband was showing." Later that month, she met with Levin for approximately 50 minutes and paid him a $1,000 retainer. She never had any further communication with him or saw any documents prepared by Levin on her behalf.

On May 25, 1983, Rosenberg retook John's deposition pursuant to a court order (John's deposition previously had been taken by Marianne's prior attorney). As of that date, Marianne stated she had not seen any discovery or documentation from Rosenberg relating to John's finances.

Marianne testified that on July 12, 1983, she went to Rosenberg's office to discuss what she thought would be preparation for her trial, then scheduled for July 18, 1983. When she walked into Rosenberg's waiting room, she stated she was shocked to see John sitting there. At that meeting, Rosenberg gave her a settlement agreement which he told her to sign. She testified that prior to this time Rosenberg never discussed the terms of any proposed settlement with her nor reviewed any documentation as to John's income or assets.

Marianne reviewed the settlement agreement at that time with Rosenberg and his partner, Steve Lake. The agreement provided that she receive the marital home which was valued by John at $400,000. Marianne told Rosenberg she did not want the home because when it was sold she would incur a large real estate fee and a substantial capital gains tax. She also objected to the value of $400,000 placed on the home, and Rosenberg gave her the name of an appraiser to have the house appraised. Marianne testified she told Lake the agreement was unfair, but Lake informed her it was a "good deal." Marianne stated that Rosenberg then told her that John's attorney was one of the best trial lawyers, making her lose confidence in Rosenberg. She also questioned Rosenberg about the $25,000 fee that John was to pay him under the agreement, but was not given any explanation. Marianne further testified that at the meeting Rosenberg and Lake repeatedly mentioned the case of In re Marriage of Asch (1981), 100 Ill. App.3d 293, 426 N.E.2d 1066, and, in particular, how the wife in Asch received only $45,000 and three years of maintenance.

The following day, Marianne wrote Rosenberg a letter objecting to the agreement and the way she was treated at the meeting. In the letter, which was admitted into evidence, Marianne questioned, among other things, Rosenberg's $25,000 fee, and the amounts in the Kemper, Stein Roe and CREF-TIAA accounts reflected on John's affidavit.

On July 15, 1983, Marianne met with Rosenberg and gave him an appraisal valuing the marital home at $245,000. Marianne complained that since the house was not worth $400,000, she should get some money up front, as Rosenberg promised her earlier. Marianne testified that Rosenberg began shouting and screaming at her. Rosenberg then told her she would clear $200,000 from the sale of the house and if she invested that money it would double in five years. At the suggestion of Rosenberg, Marianne called Peggy Fawcett at the First National Bank to confirm that the $200,000 would double. Fawcett advised Marianne that she would only earn $81,000 after five years. Marianne told Rosenberg what Fawcett said, and Rosenberg told her she was wrong and that the Asch case and ERA changed everything for women. Marianne stated the meeting ended with Rosenberg shouting at her and telling her that the proposed settlement was a good deal. When Marianne asked if the trial could be postponed, Rosenberg responded that her husband "would freeze her out."

On July 19, 1983, Marianne stated she wrote Rosenberg a second letter because she believed she was being harassed into entering the settlement agreement. In the letter, which was admitted into evidence, Marianne again advised Rosenberg she wanted both the marital home and Chestnut Street condominium sold and wanted the stocks, and the Stein Roe, Kemper, and CREF-TIAA accounts divided equally. She also requested 10 years of maintenance. Rosenberg never responded to this letter nor the letter of July 13, 1983.

On July 20, 1983, Marianne attended the first pretrial conference with Rosenberg accompanied by her friend, Barbara Purdy. She testified that she wanted Purdy, a housewife, to accompany her and act as her "spokesman" because she felt "very, very dense and dull and not very articulate and very sick." Marianne stated that at the pretrial conference, the judge advised her that ERA had really changed things for women and that she could do no better at trial, but much worse.

The second pretrial conference was held on July 25, 1983. The trial court did not permit Purdy to attend this conference. Marianne stated that the judge told her about the Asch case, and that under that decision she could very well end up with only five years of maintenance. The judge again told her the settlement ...

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