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In re Marriage of Bielawski

February 20, 2002

IN RE MARRIAGE OF SABINA BIELAWSKI, PETITIONER-APPELLANT AND DONALD RYCROFT, RESPONDENT-APPELLEE


The opinion of the court was delivered by: Justice South

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Elizabeth Loredo-Rivera, Judge Presiding

Petitioner, Sabina Bielawski, appeals from a final judgment of the circuit court denying her second amended motion to vacate the judgment and marital settlement agreement. Petitioner filed a petition for dissolution of marriage, and respondent, Donald Rycroft, filed a counter petition. The parties entered into a marital settlement agreement on or about September 24, 1998, which was incorporated into the judgment for dissolution of marriage on September 28, 1998.

The hearing on the parties' dissolution of marriage was held between September 21, 1998 and September 29, 1998. During the trial, the parties entered into negotiations for a marital settlement agreement. Prior to calling petitioner as a witness, her attorney stipulated that the parties had been successful in entering into a negotiated settlement agreement which had been reduced to writing.

Petitioner testified that she had signed the agreement, and that the terms and conditions were incorporated into the marital settlement agreement. The terms of the agreement were that respondent would pay her $12,539 per month as unallocated maintenance and support from his pension benefits, which is equal to 45% of his gross income. Upon the death of either petitioner or respondent, petitioner's remarriage or her taking up residence with an adult male on a conjugal basis, this support would terminate. Petitioner testified that she understood that she waived her right to any personal interest in respondent's personal property, i.e., his pension benefits, except to the extent that it provides a "stream of income" for her support.

Finally, petitioner testified that she understood all of the terms of the agreement, that she spent several days going over those terms with her attorney, that she believed at the time that the agreement was fair and equitable, that she intended to be bound by its terms and conditions, and that she entered into the agreement freely, voluntarily and without coercion.

Subsequently, petitioner filed her first motion to vacate the marital settlement alleging that it was unconscionable because it did not award her any part of the marital portion of respondent's pension pursuant to the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/503(d) (West 2000)). Respondent filed a 2-615 motion to dismiss, which was granted without prejudice.Petitioner then filed an amended motion to vacate the marital settlement agreement pursuant to section 502(b) (750 ILCS 5/502(b) (West 2000)), alleging that the marital settlement agreement should be vacated because it was unconscionable. Respondent filed another motion to dismiss, which was granted without prejudice.

Petitioner then filed a second amended motion to vacate, which is the subject of this appeal. The motion to vacate argued that the marital settlement agreement should be vacated because it was unconscionable pursuant to section 502(b) of the Act and cited Articles 3 and 9 of the marital settlement agreement. Article 3 of the marital settlement agreement states in pertinent part:

"ARTICLE 3

UNALLOCATED MAINTENANCE AND CHILD SUPPORT

3.1 Donald covenants and agrees that he will pay to SABINA, as and for unallocated maintenance and child support, from his CNA pension and consulting contract the sum of $12,539.00 per month which was forty-five percent (45%) of his gross income from these sources, and from which funds SABINA shall provide for the support of the children except as is otherwise herein provided. These payments shall continue *** until the first to occur of the following events:

a. The remarriage of SABINA.

b. The cohabitation by SABINA with an adult male on a resident, continuing, conjugal basis.

c. The death of SABINA.

d. The death of DONALD."

Article 9 states in pertinent part:

"ARTICLE 9

SETTLEMENT OF MARITAL AND ...


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