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07/05/88 Rhonda K. Ebersole, v. Bradley A. Ebersole

July 5, 1988

RHONDA K. EBERSOLE, PETITIONER-APPELLEE

v.

BRADLEY A. EBERSOLE, RESPONDENT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

525 N.E.2d 1209, 171 Ill. App. 3d 632, 121 Ill. Dec. 902 1988.IL.1060

Appeal from the Circuit Court of Whiteside County; the Hon. John D. O'Shea, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. STOUDER, P.J., and BARRY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The respondent husband, Bradley A. Ebersole, appeals from the trial court's order vacating his dissolution property settlement with the petitioner wife, Rhonda K. Ebersole. We affirm.

The husband and wife were married in 1983 when the wife was 17 and the husband was 20 years old. Their son was born shortly thereafter. During the approximately three-year marriage, the husband worked buying and raising livestock. The wife was minimally employed or unemployed.

In 1985 the parties purchased the marital residence on contract, making a $25,000 down payment. Also during the marriage the husband bought a 1984 truck, a cattle trailer for his work, a stove and a dryer, and a 1984 automobile. According to the wife, those purchases of personal property were in cash.

In July of 1986, the wife filed for dissolution and the court awarded temporary child custody to the husband and $55 weekly maintenance to the wife. In August of 1986, the wife's counsel withdrew, stating that the wife had not remained in close enough communication. The wife sought but did not secure alternate counsel.

On September 3, 1986, the wife went to the office of the husband's lawyer, where the parties executed their original settlement agreement. The agreement provided for joint custody of the child. It also provided for the wife to receive $5,000 cash, an automobile, a microwave, a television, assorted other personal property, plus 60 days of maintenance at the rate of $55 weekly. The husband was awarded the marital residence, the truck, the trailer, a lawnmower, VCR, washer, dryer, freezer, stove, refrigerator, and assorted personal property. The husband was also ordered to assume all marital debts. While the wife was alone to sign in the lawyer's office, the lawyer advised her that she might not want to go to the September 8 court hearing on the agreement, as it would be emotionally upsetting to her.

The husband and his attorney attended the September 8 hearing; the wife did not attend. The court continued the proceedings to September 15, as the settlement agreement included no joint-parenting agreement to accompany the provision for joint custody. The court ordered the wife to appear at the September 15 continuance.

On September 15, the husband's lawyer gave the wife her first notice of the court's opinion that the parties needed a joint-parenting agreement. According to the wife, she understood from the lawyer that if the September 3 agreement was amended by crossing out the joint custody provision, the Judge would accept the agreement and her resulting rights with the child would be unchanged except for minor details. The wife agreed to deletion of the joint custody language. The agreement, thus, provided for custody in the husband. There was no other change.

In court September 15, the Judge explained to the wife that he had questioned the joint custody provision as it was meaningless without specific parenting agreements. Thereafter, following the court's questions the wife stated that she was agreeing to give the husband custody and that she realized it might be difficult to recover custody if she later decided she wanted to do so.

On March 4, 1987, the wife filed her instant petition under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401). The petition sought vacation of the property settlement agreement. After a hearing, the court granted the petition. To support its order it found clear and convincing evidence that the agreement was tainted ...


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