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08/09/89 In Re Marriage of Arlene Cierny

August 9, 1989

IN RE MARRIAGE OF ARLENE CIERNY, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

RONALD CIERNY, Respondent-Appellant

543 N.E.2d 201, 187 Ill. App. 3d 334, 134 Ill. Dec. 918 1989.IL.1221

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

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

The respondent, Ronald Cierny, appeals from a judgment of the circuit court dissolving his marriage to the petitioner and ordering him to pay petitioner's attorney fees. Respondent also appeals an order finding him in contempt of court.

FACTS

Respondent and petitioner were married on June 14, 1969. They had one child, Andrew, born May 30, 1979. On January 27, 1987, petitioner filed an action seeking dissolution of the parties' marriage. A hearing on petitioner's motion for temporary support was scheduled for April 6, 1987; however, on that date respondent's attorney informed the court that the respondent no longer wished her to represent him and the case was continued until April 16 to give respondent an opportunity to obtain new counsel.

APRIL 16, 1987

Respondent, petitioner, and their attorneys appeared and a prove up was held, at which petitioner testified that the respondent was guilty of mental cruelty. Petitioner also testified that she, respondent, and their attorneys had negotiated an oral settlement agreement.

Petitioner testified that under the settlement agreement: (1) petitioner would have sole custody of Andrew and respondent would have visitation rights; (2) respondent would pay the greater of 20% of his income or $400 per month in child support and provide insurance coverage for Andrew; (3) respondent would pay petitioner $200 per month in maintenance for a period of 24 months; (4) petitioner would assume responsibility for payment of the mortgage on the marital residence located in Arlington Heights, Illinois, and respondent would quitclaim his interest in the house to petitioner in exchange for $28,000; (5) respondent would prepare joint 1986 Federal and State income tax returns for the parties and any refund would be divided between the parties with 60% going to respondent and 40% going to petitioner; and (6) respondent would pay $1,500 of petitioner's attorney fees and each would be responsible for the balance of his or her own attorney fees.

Respondent then testified, stating that he was not offering a defense to petitioner's charge of mental cruelty. He also stated that he and his attorney had spent two hours going over the settlement agreement and that he believed that the agreement was fair and reasonable. At the close of the hearing, the trial court ordered that a judgment of dissolution setting forth the parties' agreement be prepared and submitted for his signature.

MAY 13, 1987

On May 13, 1987, petitioner filed a motion seeking to have the judgment of dissolution entered instanter. At a hearing on that same date, the court was informed that respondent had hired a new attorney and that respondent intended to object to the entry of the judgment. The court pointed out that respondent had filed no pleadings indicating what objections he had to the judgment, but stated that in the interest of Justice, the matter would be continued to give respondent an opportunity to be heard. The court added that because petitioner had appeared and was ready to proceed with entry of the judgment and because respondent had previously given no indication that he intended to object, all fees incurred in future proceedings would be borne by respondent.

MAY 15, 1987

On May 15, 1987, respondent filed a petition to vacate the April 16 prove up. Although respondent's petition has not been included in the record on appeal, it appears that it alleged that the prove up should be vacated because the settlement agreement was manifestly unfair, because no discovery was had prior to the prove up, and because respondent was under a mental impairment at the time of the prove up due to certain medication he was using.

At the hearing on respondent's petition, respondent testified that he believed the April 16 court appearance was for a hearing on petitioner's request for temporary relief and that prior to that date, he had not discussed settling the case with his attorney. Respondent also testified that on the morning of April 16, he met with his attorney, Lee Newell, prior to the hearing and was told that they might be able to settle the case. Newell then met with petitioner's attorney and afterwards told respondent that petitioner had agreed to give respondent 40% of the equity in the marital home (approximately $27,100) and that petitioner wanted respondent to pay $2,500 of petitioner's attorney fees. Respondent stated that he told Newell that he wanted 50% of the fair market value of the house and that he did not want to pay any of petitioner's attorney fees. Respondent also stated that after further negotiations it was agreed that petitioner would pay respondent $28,000 in exchange for a quitclaim deed to the house and that respondent would pay $1,500 of petitioner's attorney fees. Respondent also testified that petitioner's attorney proposed that they divide the 1986 tax refund 50-50, but that he insisted upon a 60-40 division. According to respondent, the settlement negotiations began in the hallway outside the courtroom, but after the negotiations had become "kind of lengthy," it was suggested that the parties and their attorneys continue their Discussions in a conference room.

Respondent also testified that at the time of the prove up, he had been under psychiatric care for 16 months and that before the hearing he had taken his regular dosage of anti-anxiety and anti-depressant medications. There was also evidence that respondent, a certified public accountant with a master's degree in accounting, had left his job with General Motors in January 1987, that ...


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