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07/17/89 In Re Marriage of Nancy H. Carlson

July 17, 1989



and CHARLES K. CARLSON, Respondent-Appellant

542 N.E.2d 760, 186 Ill. App. 3d 635, 134 Ill. Dec. 414 1989.IL.1104

Appeal from the Circuit Court of Cook County; the Hon. James G. Donegan, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. MANNING, P.J., and BUCKLEY, J., concur.


Petitioner Nancy Carlson obtained a judgment for dissolution of marriage, which respondent Charles Carlson moved to vacate on the grounds of unconscionability and duress. The motion was denied. Charles appeals. For the reasons below, we affirm.

Charles and Nancy were married on July 16, 1977, and lived together until April of 1985, when Nancy moved to Lyons, Illinois. Charles remained at the marital residence in Berwyn, a two-flat in which the couple had lived in one apartment and rented the other. They had no children.

On May 7, 1985, Nancy filed a petition for dissolution of marriage. On May 28, 1985, Nancy obtained an ex parte temporary restraining order to prevent Charles from harassing her. On August 23, 1985, Charles appeared and filed his response to the petition for dissolution.

In January 1986, Nancy filed a petition for a second temporary restraining order, and on February 10, 1986, an agreed preliminary injunction was entered, restraining Charles from disposing of any property owned either jointly or solely by Nancy. Subsequently, the parties engaged in discovery and negotiations.

On September 4, 1987, Nancy filed an emergency petition for relief from dissipation of marital assets from mortgage foreclosure. The petition alleged that Charles, who had been collecting rent from the marital residence since the separation, had used the rent money for personal use, had failed to make the mortgage payment on the marital residence, and that the mortgage holder, Olympic Federal, threatened foreclosure. The trial court entered an ex parte order on the petition, giving Nancy exclusive possession of the residence and the right to collect rents, and ordering Charles to vacate by September 7, 1987. Charles was also ordered to pay the overdue amount on the mortgage and make all payments necessary to stop the pending foreclosure. The order further continued contempt proceedings against Charles for violation of the order of February 10.

On September 10, 1987, an oral agreement was reached after negotiations concerning the Disposition of marital assets, and the parties appeared before the trial court for a proveup hearing. Both parties were present and represented by counsel. Nancy testified to the provisions of the agreement and was cross-examined. Charles testified that Nancy's testimony concerning the provisions of the agreement was accurate and that he thought the provisions fair. The principal terms of the agreement were: (1) both parties waived maintenance; (2) Charles would sign a quitclaim deed which Nancy would accept and indemnify Charles for any claims arising from his previous ownership except utility bills; (3) Charles would sign the title of their car over to Nancy; (4) all debts except the mortgage and real estate taxes would be the debt of the party incurring it; and (5) the parties waived all right or interest to any personal property held by the other at the time of the judgment. The trial court entered the judgment for dissolution of marriage. Subsequently, a typewritten copy of the judgment was submitted to Charles' attorney for Charles' signature. Charles refused to sign.

On November 10, 1987, Charles' attorney moved to withdraw from the case. On December 1, 1987, the court granted the attorney's motion to withdraw. Charles was not present at that hearing because his notice of hearing had directed him to the wrong building. The court also entered judgment for dissolution of marriage instanter, on Nancy's emergency motion. By his new attorney, Charles moved to vacate the judgment for dissolution.

In an evidentiary hearing on the motion to vacate on March 31, 1988, Charles testified that his first attorney had presented the typed judgment for his signature on the date of a hearing on the contempt charge. Charles testified that his attorney told him that if he did not accept the agreement, he "would have to pay immediately an additional $5,000 in attorneys' fees for the trial of this cause." Charles testified he did not enter into the agreement voluntarily, but had agreed because he was fearful of ...

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