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In re Marriage of Johnson

May 19, 2003


Appeal from the Circuit Court of De Kalb County. No. 00-D-33 Honorable Kurt P. Klein, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN


On March 7, 2000, the circuit court of De Kalb County entered a judgment dissolving the marriage of petitioner, Sheila A. Johnson (Sheila), and respondent, Gordon B. Johnson (Gordon). The judgment incorporated a separation agreement that provided for the disposition of the parties' property. Almost 20 months later, on November 1, 2001, Gordon filed a petition under section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2000)) to vacate the judgment. Sheila appeals from the trial court's order granting the petition. We affirm.

The separation agreement recited that Gordon earned $46,000 annually and Sheila's annual income was $15,000. The agreement further recited that both parties were equally capable of supporting and maintaining themselves and that they waived all claims for maintenance and all claims to each other's non-marital property. The agreement provided, inter alia, that the marital residence, worth approximately $130,000, would be assigned to Sheila and that Gordon would pay Sheila $450 per week for 176 months. Gordon would retain his pension. The $450 weekly payment was designed to compensate Sheila for releasing any claim against Gordon's pension and for paying off a $45,000 home equity loan secured by the marital residence. Other terms of the agreement providing for the disposition of the parties' motor vehicles, household furnishings, personal belongings, and bank accounts need not be described here.

The matter proceeded to a prove-up. Sheila was represented by attorney Roger W. Hayes, and Gordon appeared pro se. At the outset, the trial court asked Gordon whether he was represented by an attorney. Gordon responded that he and Sheila had visited Hayes together. The court then advised Gordon that Hayes represented only Sheila and that his position was adverse to Gordon's. The court asked Gordon whether he chose to represent himself, and Gordon said that he did. The court also asked Gordon, "You understand that we're gonna do things here this morning that affect your legal rights on a permanent irrevocable basis?" Gordon replied affirmatively.

Sheila testified that she was 49 years old and was employed as the Sandwich Township assessor. Gordon was 50 years old and was employed as an assembler at the Caterpillar factory. The parties were married in 1971 and had three children: 26-year-old Ryan, 22-year-old Jeffrey, and 19-year-old Stacey. Sheila identified the separation agreement and testified that she had entered into it freely and voluntarily, she had fully disclosed her assets to Gordon, and she believed Gordon had also made full disclosure to her. She also reaffirmed her waiver of maintenance. After Hayes completed his direct examination of Sheila, the following exchange occurred:

"THE COURT: What have they done with the pensions? I don't have a copy of the settlement agreement.

MR. HAYES: I'm sorry. (Handed up)

THE COURT: Thank you. You're getting the house, he's getting the pension.


Gordon testified that he signed the separation agreement on the morning of the prove-up. He testified that he had read and understood the agreement, he believed it was fair and just, and he had signed it voluntarily. Gordon confirmed that he had completely disclosed his income and assets to Sheila and he believed Sheila had completely disclosed all her income and assets.

The trial court entered a judgment dissolving the parties' marriage. The court found that the separation agreement was not unconscionable and incorporated the agreement into the dissolution judgment.

As noted, Gordon filed his section 2--1401 petition almost 20 months later. He complained, inter alia, that in light of the $450 weekly payments for 176 months, the separation agreement was unconscionable. Sheila moved to dismiss the petition pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 2000)). The trial court denied the motion. Sheila filed an answer to the petition, and the matter proceeded to an evidentiary hearing at which the following salient facts were established. In 1999, after Christmas, the parties discussed ending their marriage. Sheila gave Gordon a handwritten proposal for a property settlement. Sheila proposed that Gordon pay her $450 per week. Sheila would receive the parties' home, and after repaying the home equity loan, she would release any claim to Gordon's pension. (The monthly payment on the home equity loan was $457.)

Gordon agreed to these terms, and the parties visited attorney Hayes. Sheila later gave Gordon a copy of the separation agreement to review. Gordon testified that he was unsure why the agreement provided that his weekly payments to Sheila would continue for 176 months. He stated that he thought this might correspond to the period for repaying the home equity loan. Gordon testified that he thought 176 months was an outer limit; that the weekly payments would end when the loan was paid off; and that Sheila had told him she would repay the loan as soon as possible. However, Gordon ...

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