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05/05/94 MARRIAGE SUSAN HAMM-SMITH

May 5, 1994

IN RE: THE MARRIAGE OF SUSAN HAMM-SMITH, PETITIONER-APPELLEE, AND LEWIS DANIEL SMITH, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Sangamon County. No. 93D5. Honorable Thomas R. Appleton, Judge Presiding.

As Corrected May 24, 1994. Released for Publication June 1, 1994.

Honorable James A. Knecht, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Lewis Daniel Smith appeals from the trial court's denial of his petition, brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2-1401), to vacate a judgment of dissolution of marriage. He alleges the trial court failed to consider whether the settlement agreement was unconscionable within the meaning of section 502(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1991, ch. 40, par. 502(b)). He additionally alleges the trial court erred in declining to set aside the judgment on the basis of duress, fraud, unconscionability or other grounds. We disagree and affirm.

I. FACTS

Lewis married Susan Hamm-Smith on September 1, 1984. Lewis and Susan have no children. During their nine-year marriage, both parties were employed as salespersons and earned substantial incomes. Susan also inherited $60,000 during the marriage. By virtue of their incomes and Susan's inheritance, the parties acquired various assets, the most significant of which are the marital residence, valued at $350,000 to $384,000 and subject to a mortgage of $275,000, and Susan's pension plan valued at $70,000.

Susan, through her attorney, Steven Nardulli, filed a petition for dissolution of marriage on January 5, 1993. Lewis filed his appearance and consent on the same day. A judgment for dissolution of marriage was entered by the court on January 22, 1993. The judgment incorporated a settlement agreement which had been approved by both Susan and Lewis.

On May 26, 1993, Susan filed a petition for a rule to show cause, alleging Lewis had failed to comply with the terms of the judgment. On June 14, 1993, Lewis filed a petition to vacate the judgment pursuant to section 2-1401 of the Code. In his petition, Lewis alleged the judgment ought to be set aside because the terms of the agreement are unconscionable within the meaning of section 502(b) of the Marriage Act.

In support of his petition, Lewis alleged the "judgment was obtained against him by default as Steve Narduli [sic] was theattorney selected by the wife for both parties," and "the wife hired an attorney only to represent herself and defendant was without benefit of attorney." Lewis contended Susan took advantage of his lack of education and sophistication, causing him to agree to a judgment allocating 100% of the marital property to Susan, and leaving him with only debt. According to Lewis, the settlement agreement "is so excessively one-sided as to amount to a fraud upon the court." Lewis contended Susan represented she would sell the marital home immediately, but actually has no intention of selling it. Finally, Lewis contended, "he has proceeded diligently since learning of the suit and default judgment." The hearing on the petition occurred on August 27, 1993.

With respect to whether attorney Nardulli had been hired to represent both Susan and Lewis, Susan testified she told Lewis Nardulli would represent her interests. She never told Lewis Nardulli was his attorney. The judgment of dissolution which Nardulli drafted and Lewis and Susan signed provides: "The Plaintiff [Susan] is present in person and by her attorney, Steven Nardulli. The Defendant [Lewis] filed his Appearance and Consent to these proceedings and is appearing pro se. "

Despite the language of the judgment order, Lewis testified he believed he and Susan had agreed Susan would hire one attorney to represent both of them, and he believed Nardulli was his attorney also. On cross-examination he conceded he had never met Nardulli, and never consulted with him regarding the dissolution.

With respect to the education and sophistication of the parties, the following testimony was given. At the time of the dissolution, Susan was 32 and Lewis was 41 years old. She has bachelor of arts degree in marketing, and was employed as a salesperson earning $53,000 per year, plus an average yearly bonus of $10,000. Lewis did not complete high school, but had taken some college courses. When asked if he had ever taken courses in accounting, business or finance, he evaded the question, stating "I'm not a college graduate. I took some college courses, but I'm not a graduate." He is self-employed as a salesman. Until the economic reversals which he suffered in the spring of 1993, he earned yearly gross income of approximately 100,000, and had yearly business expenses of approximately $25,000.

Susan testified Lewis told her he wanted a divorce on November 11, 1992. He later moved out of the marital residence, and began living with his girlfriend. In December 1992, Lewis and Susan met to discuss a property settlement. Susan testified, and Lewis conceded, this meeting occurred at his request.

During the property settlement meeting the parties agreed to sellthe marital residence after repairs had been made to the roof. The parties believed they had at least $75,000 equity in the home, and the repairs to the roof would cost approximately $15,000. The parties agreed Susan would be responsible for selling the home, paying the sales commissions, and satisfying the mortgage. She would retain any gain on the sale of the residence and most of the furnishings.

The equity in the home was largely attributable to Susan's contribution of her nonmarital property. Specifically, the down payment on the home consisted of the major portion of Susan's inheritance and the proceeds from the sale of a previous residence. The $10,000 down payment on the previous residence had also been made largely, if not entirely, with Susan's nonmarital funds. The portion of her ...


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