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03/01/94 MARRIAGE KATHY DIANE FREY

March 1, 1994

IN RE MARRIAGE OF KATHY DIANE FREY, PETITIONER-APPELLEE, AND ROBERT DALE FREY, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Madison County. No. 90-D-974. Honorable Ellar Duff, Judge Presiding.

Goldenhersh, Lewis, Chapman

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Respondent, Robert Dale Frey, appeals from an order of the circuit court of Madison County determining the assignment and division of property, maintenance, custody, child support, and the award of attorney fees to petitioner, Kathy Diane Frey. In this cause, respondent raises the following nine issues: (1) whether the trial court erred in finding that the parties did not enter into a marital settlement agreement, (2) whether the trial court erred in finding that respondent dissipated marital assets, (3) whether the trial court erred in awarding petitioner $23,500 as half the net equity in the marital home and in accelerating payment thereof upon either the remarriage or cohabitation of respondent with another adult, (4) whether the trial court erred in finding petitioner lacked sufficient financial resources, experience, and vocational training to provide for her needs in the standard of living established and to contribute to the support and maintenance of the children, (5) whether the trial court erred in refusing to make petitioner pay child support at the time of the hearing but instead ordering a review of the matter in one year, (6) whether the trial court erred in giving physical custodyof the minor children to petitioner as specified in the joint parenting agreement where no joint parenting agreement was entered and respondent was designated custodial parent, (7) whether the trial court erred in ordering respondent to pay $900 toward petitioner's attorney fees, (8) whether the trial court erred in allowing the expert testimony of James C. Whitt, real estate appraiser, and (9) whether the trial court's award of maintenance and division of property are contrary to the law and the evidence presented. We affirm in part and remand with directions for clarification concerning custody and visitation.

The parties were married on June 9, 1973. Two children were born of the marriage, Robert Dale Frey III, born September 1, 1973, and Brian Matthew Frey, born July 17, 1977. On July 25, 1990, petitioner filed a petition for dissolution of marriage, and respondent filed a cross-petition. Petitioner's original attorney withdrew, and new counsel entered her appearance on November 14, 1990. Several interrogatories were sent back and forth between the parties before and after the original attorney for petitioner withdrew.

The parties were married when petitioner was 17 years old. During the marriage, petitioner only had minimal employment. At one point, petitioner worked for a nursing home for three or four months. She quit that job because respondent requested she stay home and take care of the children. On another occasion petitioner worked as a recess aid at her oldest son's grade school. On January 2, 1990, petitioner accepted a position at an insurance company for which she is paid a little over $11,000 per year. Respondent is a longtime railroad employee and at the time of these proceedings earned over $34,000 per year.

At a hearing on February 28, 1991, the parties stipulated to joint custody, with respondent as the custodial parent and petitioner receiving reasonable visitation. A joint parenting agreement was to be entered, but the record does not contain it. Other hearings were held on the issues in contention. The matter was taken under advisement. On July 23, 1991, the trial court entered an order dissolving the parties' marriage and finding that: respondent failed to establish by clear and convincing evidence that the parties entered into a marital settlement agreement; petitioner contributed to the preservation and appreciation of the parties' property; petitioner lacked sufficient financial resources, experience, or vocational training to provide for her own needs in the standard of living established during the marriage; and petitioner was presently unable to contribute to thesupport and maintenance of the children. The issue of child support to be paid by petitioner was reserved for one year. Respondent, as custodian, was ordered to pay all the children's expenses and was given the two tax exemptions. Personal property was divided between the parties. Petitioner was awarded 40% of joint checking and saving accounts, certificates of deposit, stocks, and bonds while respondent was awarded the other 60%. Petitioner was awarded half the marital portion of respondent's railroad pension. Due to the disparity in the parties' income, respondent was ordered to pay all debts incurred during the marriage, except those debts incurred individually by petitioner after the parties' separation. Respondent was ordered to maintain health coverage on petitioner for one year should none be available through her employer. Respondent was also ordered to pay petitioner $100-per-month maintenance for 24 months and $900 toward petitioner's attorney fees, which totaled $2,880. Petitioner was awarded half the net equity in the parties' marital real estate, $23,250. This amount was payable fully or in installments on or before Brian's eighteenth birthday or upon the sale or rental of the residence or upon respondent's remarriage or cohabitation with another adult. A subsequent order filed October 28, 1991, found that even if respondent's exhibit #2 could be considered a marital settlement agreement, the agreement was unconscionable. The trial court also found that respondent dissipated marital assets in a savings account valued over $18,000. The trial court found that, of the $18,000, approximately $9,000 was used to purchase the mobile home awarded to petitioner, but that respondent did not satisfactorily show the remaining sums were spent for the benefit of the family.

The main issue in contention throughout the proceedings was whether the parties entered into a marital settlement agreement, as documented in petitioner's exhibits numbered 1 and 2 and incorporated into respondent's exhibit #2. Petitioner admitted that the parties tried to negotiate on their own in order to reach a settlement; however, petitioner testified that with regard to petitioner's exhibits #1 and #2, these were "lists" that were written at an extremely emotional time. According to petitioner, respondent asked her what it would take to get out of the marriage, and she told respondent a number of things. At a hearing on May 7, 1991, petitioner testified that respondent was extremely angry during the parties' Discussion and writing of the lists. Petitioner testified that respondent gave her blank pieces of paper and a pen and told her to write down what he told her. She did so because she knew something had to be done. When petitioner requested other things, respondent asked her if she was sure she needed them. Petitioner would always respond "No." Respondent admitted that both parties were upset during this negotiation. About a week after the lists were drawn up, the parties went to an attorney picked out of the telephone book and took the lists. Both were trying to get a divorce using one attorney in order to cut down on cost and to get the matter completed quickly. Later, after a settlement was prepared, petitioner refused to sign it because it did not mention anything about the parties' savings accounts. At that point, petitioner sought separate counsel.

A two-bedroom mobile home costing approximately $9,500 was purchased for petitioner prior to obtaining her own attorney. Petitioner was also in possession of the parties' 1986 Cavalier at this time. Both the mobile home and the Cavalier were assigned to petitioner as part of the alleged settlement agreement. During hearings in this matter, petitioner conceded she always wanted respondent to remain in the marital home with the parties' two boys. Respondent argued at the trial level and contends herein that the agreement drawn up by the parties' original attorney, which incorporated the lists in petitioner's exhibits #1 and #2, was a valid settlement agreement and should be followed. Accordingly, the first issue we are asked to consider is whether the trial court erred in finding that the parties did not enter into a marital settlement agreement.

Respondent argues that the facts indicate that the parties agreed to the settlement as shown by petitioner's exhibits #1 and #2. To that end, a two-bedroom mobile home was purchased for petitioner, which she accepted. The parties were then bound by the agreement, and petitioner should not be allowed to change her mind. Petitioner responds that petitioner's exhibits #1 and #2 do not show a settlement agreement but rather show lists written out by petitioner at respondent's direction made under embattled conditions which cannot be found to be a valid and binding agreement. We agree with petitioner.

While it is well settled in Illinois that the law looks with favor upon the amicable settlement of property rights between a husband and a wife prior to their divorce, a settlement agreement will be set aside if the agreement was procured by fraud or coercion or contrary to any rule of law, public policy, or morals. ( Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 461, 350 N.E.2d 103, 107; see Ill. Rev. Stat. 1989, ch. 40, par. 502.) In determining whether a settlement agreement violates public policy, reviewing courts focus on whether such a contract is free from actual fraud or coercion and also whetherit is reasonable, fair, and sufficient in light of the parties' circumstances and station in life. In re Marriage of Perry (1981), 96 Ill. App. 3d 370, 373, 421 N.E.2d 274, 276, 51 Ill. Dec. 766.

Here, both parties agree that they were upset when these lists were written. Respondent admits that petitioner was crying at the time. Petitioner testified that she wrote down what respondent told her to write, but that the list did not reflect a complete agreement. Petitioner's exhibit #1 clearly shows that some of what was written was not agreed to by the parties. For example, next to the words "Bedroom set from upstairs" is written "No." Such markings cloud the issue whether the parties agreed to the lists as written. Moreover, the parties were married for 17 years, and the lists leave out many of their assets, including savings and checking accounts, stocks and bonds,, and pension rights. Petitioner expressed her dissatisfaction with the agreement early in the proceedings and sought separate counsel to protect her interests. Reviewing the record as a whole, we cannot say that the trial court erred in determining that respondent failed to prove the parties entered into a binding marital settlement agreement. We also agree that even if such lists show an agreement, the agreement as written was unconscionable when considering the parties' station and circumstances in life.

Section 502(b) of the Marriage and Dissolution of Marriage Act (Act) states that the terms of an agreement between the parties are binding unless the court determines that the agreement is unconscionable. (Ill. Rev. Stat. 1989, ch. 40, par. 502(b).) "The inquiry into unconscionability involves at least two separate considerations: one, the conditions under which the agreement was made [citations] and two, the economic circumstances of the parties resulting from the agreement * * *." ( In re Marriage of Foster (1983), 115 Ill. App. 3d 969, 972, 451 N.E.2d 915, 918, 71 Ill. Dec. 761.) Here, the parties were married for a considerable period of time during which petitioner had virtually no work experience outside the home. Petitioner will never be able to bridge the gap between the parties' income. Considering these facts while reading the proposed settlement agreement, we come to the Conclusion reached by the trial court, that the settlement agreement was unconscionable.

The second issue is whether the trial court erred in finding that respondent dissipated marital assets. The trial court concluded that respondent dissipated marital assets when he spent $18,000 from the parties' savings account. The trial court found that respondent "took approximately $9,000 from said account and purchased the mobile home awarded to the wife[] but did not show or account to the satisfaction of this court that the remaining sums were spent for the benefitof the family unit." Respondent contends that he produced exhaustive proof as to the disbursal of funds in the savings account. He argues that he produced evidence of outlays totaling $28,681.96, including the $9,500 paid for the mobile home. Moreover, respondent contends that dissipation cannot be found where the spouse charging dissipation acquiesced in the expenditure, such as petitioner agreeing to the withdrawal of ...


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