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02/14/89 In Re Marriage of Nancy H. Byrne

February 14, 1989

IN RE MARRIAGE OF NANCY H. BYRNE, PETITIONER-APPELLANT, AND


Before the wedding, Peter transferred $50,000 of Emery stock to Nancy for her to buy out her ex-husband's interest in the Lakeview apartment, where Peter and Nancy lived after they were married. Nancy later paid for the stock. During the marriage, Peter made no contributions to assessments on the apartment or property taxes, nor did he contribute, with the exception of vacation expenses, to household expenses. The couple kept their property separate, held the earnings from their property in separate accounts, and acquired no jointly held property.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

PETER J. BYRNE, Respondent-Appellee

535 N.E.2d 14, 179 Ill. App. 3d 944, 128 Ill. Dec. 800 1989.IL.181

Appeal from the Circuit Court of Cook County; the Hon. Samuel Berger, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

In an action for dissolution of marriage between Nancy and Peter Byrne, a declaratory judgment was entered finding that an antenuptial agreement, entered into by the parties, was valid, applied in the event of divorce, and excluded from marital property all properties and assets of Nancy and Peter, whether acquired before or after the marriage. Nancy appeals. For the reasons below, we affirm.

Peter Byrne was an executive with Emery Air Freight, and Nancy Brennen, an interior designer. In December 1976, Nancy, age 50, became engaged to marry Peter, age 53. The couple set a wedding date of August 29, 1977. Nancy's principal assets were her apartment at 2430 Lakeview, Chicago, and her share of family trust assets, in litigation at the time of her engagement. Nancy wished to protect her apartment and trust estate for the benefit of her children from a previous marriage and therefore suggested an antenuptial agreement to Peter, who agreed.

Nancy contacted Charles Kelly, the attorney handling the trust estate litigation, to draft the antenuptial agreement. Mr. Kelly assigned the task of preparing the agreement to an associate in his firm. On August 10, 1977, a draft of the agreement was sent to Peter's attorney, Roger Eklund. Mr. Eklund made minor revisions that were not resubmitted to Mr. Kelly. Schedules listing each party's assets were later affixed to the agreement. After her first request for the agreement, Nancy had no other contact with her attorney concerning the agreement. On August 24, 1977, Peter and Nancy signed the agreement in Mr. Eklund's office, with Mr. Eklund and two other witnesses present.

On October 24, 1985, Nancy filed a petition for dissolution of marriage. On March 26, 1986, Peter filed a counterpetition for dissolution and a motion for declaratory judgment concerning the validity and scope of the antenuptial agreement. A hearing on the declaratory judgment established that both parties were educated and sophisticated, that Nancy originally suggested the antenuptial agreement and had her attorney draft the agreement, and that Nancy freely and voluntarily signed the agreement. It was further established that the parties owned no jointly held property.

In an order dated March 6, 1987, the trial court found that the antenuptial agreement was valid and applicable to divorce. The trial court denied Nancy's affirmative defenses to the agreement and ruled that by the terms of the antenuptial agreement, which had been followed by the parties, there was no marital property to distribute. Finding that Nancy had ample means to support herself, the trial court denied her petition for maintenance.

On June 1, 1988, Nancy filed an amended petition for dissolution of marriage, which contained a count seeking rescission of the agreement based on Peter's failure to contribute family support during the marriage. Nancy sought damages or reimbursement for unpaid maintenance during the time of their marriage in the amount of $766,746.00. The trial court granted Peter's motion to dismiss. Nancy did not raise the issue of the dismissal in her notice of appeal, but appeals the ruling that the agreement bars equitable distribution of marital property.

Nancy first argues that the unambiguous language of the antenuptial agreement preserved the premarital estates of the parties without affecting rights in property acquired during the marriage, and that the extrinsic evidence showed that the parties did not intend to waive their rights to equitable distribution of marital property. Nancy's first argument misapprehends the purpose of the extrinsic evidence and treats the case as one of contract construction. The trial court relied on extrinsic evidence to determine the agreement's validity and the language of the agreement to determine its applicability and scope. The evidence and the language of the agreement amply support the trial court's Conclusions. Nancy's second argument, that Peter's failure to provide family support during the marriage ...


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