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In Re Marriage of Brandt

OPINION FILED FEBRUARY 19, 1986.

IN RE MARRIAGE OF DORIS J. BRANDT, PETITIONER-APPELLANT, AND VIRGIL BRANDT, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Monroe County; the Hon. Francis E. Maxwell, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Petitioner, Doris J. Brandt, appeals from a judgment entered in the circuit court of Monroe County denying her motion to set aside the marital settlement agreement entered into by petitioner and respondent, Virgil Brandt. Petitioner raises two issues on appeal. The first issue is whether the trial court erred in finding that the agreement was not unconscionable. The second issue is whether the trial court erred in admitting respondent's appraisers' testimony as to the value of certain property over petitioner's objection that the valuations were based upon improper elements.

Petitioner and respondent were married in 1956. Respondent is a self-employed farmer with an eighth grade education. Petitioner, a high school graduate, is employed as an accountant for the Harrisonville Telephone Company and has taken several college level accounting courses. Petitioner and respondent have two daughters, neither of whom are minors.

On September 25, 1982, petitioner and respondent met with an attorney, Floyd Crowder, to discuss the preparation of a marital settlement agreement. While the parties agreed that respondent should retain assets necessary to continue farming and that petitioner should receive a cash settlement, they differed as to what amount of money petitioner should receive. The parties returned to the law office on September 27, 1982, and met with another attorney, Arlie Traughber, who had prepared the marital settlement agreement based upon information obtained at the prior meeting. In summary, the agreement executed by petitioner and respondent provides as follows:

Petitioner was to receive a 1979 Mercury automobile and other miscellaneous items of personal property and $75,000 paid in installments with no interest. Additionally, petitioner was released from all indebtedness incurred by the parties during the marriage.

Respondent was to receive the parties' one-third interest in Brandt, Hatley, and Hoefft, Inc., all real estate and farm equipment, and various items of personal property. Respondent assumed all indebtedness of the parties incurred during the marriage.

Both parties relinquished all rights to support and maintenance.

Section 502(b) of the Illinois Marriage and Dissolution of Marriage Act provides:

"The terms of the agreement, except those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable." (Ill. Rev. Stat. 1983, ch. 40, par. 502(b).)

Section 502 is designed to promote the amicable settlement of disputes between parties who have decided to dissolve their marriage. (Ill. Rev. Stat. 1983, ch. 40, par. 502(a).) The agreement is binding upon the court, except as it pertains to minor children, unless the agreement is found to be unconscionable. (In re Marriage of Riedy (1985), 130 Ill. App.3d 311, 313, 474 N.E.2d 28, 30; Ill. Rev. Stat. 1983, ch. 40, par. 502(b).) Additionally, all presumptions are in favor of the validity of the agreement. In re Marriage of Riedy (1985), 130 Ill. App.3d 311, 313, 474 N.E.2d 28, 30.

• 1 Unconscionability has been equated with one-sidedness or oppressiveness, and an unconscionable bargain has been defined as one no man in his right senses would make and which no fair and honest man would accept. (In re Marriage of Kloster (1984), 127 Ill. App.3d 583, 587-88, 469 N.E.2d 381, 385.) In In re Marriage of Foster (1983), 115 Ill. App.3d 969, 972-73, 451 N.E.2d 915, 918, this court proposed a two-part inquiry into unconscionability. Under this two-part test, the conditions under which the agreement was made and the economic circumstances of the parties resulting from the agreement are to be examined. In re Marriage of Foster (1983), 115 Ill. App.3d 969, 972, 451 N.E.2d 915, 918.

• 2 Petitioner contends that the conditions under which the agreement was reached were unconscionable because respondent misrepresented the value of the parties' assets, petitioner was not represented by separate and independent legal counsel, and because the agreement was hastily contrived. We disagree.

At the initial meeting among petitioner, respondent, and Floyd Crowder, the amount of $315,000 was arrived at as representing the net value of the parties' assets. The parties' one-third interest in Brandt, Hatley and Hoefft, Inc., a corporation involved in farming, and promissory notes in the amount of $37,900 owed to respondent by that corporation were not included in the net value. Although petitioner asserts that she had no independent knowledge of the value of the parties' assets and that respondent misrepresented to her that she had no right to share in the interest in the corporation, there is ample evidence to support the trial court's rejection of this assertion. Respondent and Floyd Crowder testified that petitioner was told only that due to the extreme indebtedness of the corporation, there was no equity in the corporation and it was doubtful that the promissory notes would be paid. Petitioner's request that a paragraph be inserted into the agreement stating that she was to receive her share should the promissory notes be paid and the corporation's financial situation improve illustrates that petitioner was aware of the poor financial circumstances of the corporation. Additionally, it appears from the record that petitioner had knowledge of the extent of the parties' assets.

Petitioner also points to the greater valuation placed upon the parties' assets in two financial statements prepared for the purpose of obtaining loans and by both petitioner's and respondent's appraisers in support of her contention that respondent misrepresented the parties' assets. However, we do not believe that the trial court, as the finder of fact, abused its discretion in disregarding those valuations and finding that respondent did not ...


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