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In re Marriage of Gibson-Terry

September 28, 2001

IN RE MARRIAGE OF DENISE GIBSON-TERRY, PETITIONER-APPELLEE, AND RAYMOND J. TERRY, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County. No. 97 D 16959 The Honorable Ronald W. Olson, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cohen

UNPUBLISHED

Respondent Raymond J. Terry appeals the denial of his motion to vacate a judgment of dissolution of marriage incorporating as part of the judgment an oral property settlement agreement reached between him and petitioner Denise Gibson-Terry. On appeal Raymond alleges that: (1) his attorney entered into the settlement agreement without his consent and the trial court failed to inquire whether he had in fact consented to the agreement; (2) the parties clearly contemplated that the settlement agreement be reduced to writing and signed by the parties and that the lack of signatures thereby invalidates the agreement; (3) the trial court's judgment contains terms that vary from those stated by the parties' attorneys at the prove-up hearing; and (4) the settlement agreement was "hastily arranged," "unfair" and a product of his attorney's "coercion." For the reasons set forth below, we affirm.

Raymond Terry and Denise Vaughan were married on April 22, 1986, in Chicago, Illinois. The couple have two children: Amanda, born November 8, 1991, and Mitchell, born September 27, 1994. Raymond and Denise lived together until October of 1997, when Raymond vacated the marital home and moved to Westchester, Illinois. Denise and the two children remained at the marital residence in Burbank, Illinois.

On November 4, 1997, Denise filed a petition for dissolution of marriage claiming irreconcilable differences. On November 19, 1997, attorney John R. Heying filed his appearance on Raymond's behalf, along with a response to the petition for dissolution. During the course of the next two years, while the parties engaged in discovery and attempted to reach a negotiated settlement, Raymond retained no fewer than three attorneys to represent him in this matter. A pretrial conference was held on July 26, 1999, at which the parties agreed to proceed with trial.

Trial began the morning of October 20, 1999. Both parties gave their opening statements and stipulated to the following: (1) Denise's defined benefit plan was valued at $28,200; (2) Raymond's defined benefit plan was valued at $152,325; (3) Raymond's severance trust fund was valued at $53,770.13; (4) Denise's 401K plan was valued at $5,227.19; and (5) the marital home located in Burbank, Illinois, was valued at $141,000. The parties further stipulated to: (6) an outstanding mortgage on the marital home in the amount of $100,000; (7) a parenting agreement, signed by both parties, granting custody of the two children to Denise and outlining a visitation schedule for Raymond; and (8) a report compiled by a clinical psychologist pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604(b) (West 2000)).

Because of the numerous stipulations, the only issues that remained for trial were the classification and distribution of marital property and debt. Denise was the first to be called to testify in support of her petition for dissolution. She proceeded to testify until the trial court called a recess for lunch. During the recess, the parties and their attorneys conducted settlement negotiations. The negotiations proved fruitful. After returning from lunch, the parties informed the trial court that an agreement had been reached. A prove-up hearing was then conducted and the terms of the settlement agreement were read into the record by the parties' attorneys. The principal terms of the agreement were: (1) both parties waived maintenance; (2) Denise would be awarded Raymond's severance plan, pay all taxes and penalties and use the funds to pay all marital debts, including the outstanding balance on Raymond's Discover credit card; (3) any debts not covered by the severance package plan would be the debt of the party incurring it; (4) Raymond would be liable for the outstanding balance on his Visa credit card; (5) the marital home would be awarded to Raymond via a vendor's lien with no interest and payable upon Denise's remarriage, the sale of the home by Denise, Mitchell reaching 18 years of age or earlier at Denise's discretion; (6) Denise would be awarded the marital home subject to the vendor's lien, the mortgage and all taxes; (7) Denise would receive $20,802 from her defined benefit plan, $5,000 from her 401K plan and $63,148 from Raymond's defined benefit plan; (8) the remaining balances of Denise's and Raymond's retirement accounts would be divided 50-50; and (9) Raymond would pay $800 a month in child support and half of Amanda's and Mitchell's parochial school tuition.

Denise's attorney advised the trial court that a written judgment would be prepared, signed by the parties and subsequently presented for the court's review. The trial court then ordered counsel to submit the proposed judgment within 28 days along with other documents. On November 1, 1999, a "Stipulation and Request to Hear Uncontested Cause" was filed and signed by both parties, stipulating "that all matters pending between [them] ha[d] been settled, agreed and compromised, freely and voluntarily after full disclosure." A proposed judgment was submitted to the trial court for entry on November 24, 1999, and a hearing was held on the same date. At the hearing, Raymond had retained yet another attorney, Jeffrey Vollen, to represent him. However, Mr. Vollen was not present at the hearing and failed to file an appearance. Instead another attorney, Peter Regulski, appeared on Raymond's behalf. Because Mr. Regulski was not professionally affiliated with Mr. Vollen and had similarly not filed an appearance, the trial court refused to entertain any of Mr. Regulski's arguments. Raymond and his attorney of record, Nicholas Spina, were present, however. Mr. Spina acknowledged Raymond's interest in obtaining new counsel. The trial court then asked Raymond if he had anything that he wanted to address and Raymond responded, "[o]ther than I want to change my lawyer, no." Based on the above, the trial court reserved entry of the judgment and stated that it would review the proposed judgment and the trial transcript prior to making a determination.

On December 10, 1999, the trial court entered judgment incorporating the property settlement agreement that had been reached between Raymond and Denise in open court on October 12, 1999, the "Stipulation and Request to Hear Uncontested Cause" dated November 11, 1999, and the subsequent written judgment. A copy of the judgment was submitted to Raymond's attorney of record, Mr. Spina, for Raymond's signature. Raymond refused to sign the judgment. On December 17, 1999, Mr. Vollen filed his appearance and a motion to vacate the property settlement agreement. In the motion to vacate, Raymond alleged that he did not authorize Mr. Spina to negotiate a marital settlement agreement on his behalf and he did not understand that a marital settlement agreement was being negotiated, nor did he agree to the provisions of the marital settlement agreement. Raymond further alleged that if he did in fact engage in conduct that indicated his assent to the property settlement agreement he did so under the duress of his attorney, Mr. Spina. Lastly, Raymond alleged that the provisions of the settlement agreement were unconscionable.

Denise and Mr. Spina filed responses to the motion to vacate. A hearing was held on April 20, 2000. Both parties' attorneys had an opportunity to present their arguments before the trial court. The trial court requested the transcript, a copy of the motion to vacate and legal authority and reserved its ruling until after it had an adequate opportunity to review these materials. On April 26, 2000, the trial court entered an order denying Raymond's motion to vacate. This appeal followed.

I. Judgment of the Trial Court

In his first argument, Raymond alleges that the trial court erred in incorporating the property settlement agreement into its judgment. Raymond claims that: (1) his attorney entered into the agreement without his consent and the trial court failed to inquire at the prove-up hearing whether he did in fact consent to the agreement; (2) the parties intended that the settlement agreement be reduced to writing and signed by the parties; and (3) the trial court's judgment contains terms that vary from those stated by the parties' attorneys at the prove-up hearing. Although Raymond frames the issue in this case as "whether the trial court erred by incorporating a marital settlement in its judgment," the issue is whether such an agreement was ever reached.

"'Whether a contract exists, its terms and the intent of the parties are questions of fact to be determined by the trier of fact. [Citation].'" In re Marriage of Kloster, 127 Ill. App. 3d 583, 586 (1984). We will not reverse the judgment of the trial court unless it is contrary ...


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