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In Re Marriage of

December 31, 2012


Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Honorable Jerelyn D. Maher, Judge, Presiding. Circuit No. 10-D-58

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

PRESIDING JUSTICE SCHMIDT delivered the judgment, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion.


¶ 1 The petitioner, Garth Baecker, filed a petition for dissolution of marriage in the circuit court of Tazewell County on February 10, 2010. On June 10, 2010, Garth was convicted and sentenced to prison for attempting to kill the respondent, Terry Baecker. On March 23, 2011, the parties indicated that they had reached an agreement in the dissolution proceedings. The trial court read the terms of that oral agreement into the record and instructed counsel to prepare the final judgment. Garth, who was incarcerated in the Dixon Correctional Center throughout the course of this dissolution proceeding, refused to sign the prepared judgment incorporating the oral settlement. On April 19, 2011, Terry filed a motion to enforce the judgment and for entry of final judgment of dissolution. Shortly thereafter, on April 25, Garth filed a motion to vacate the oral settlement and set the matter for trial on all remaining issues. On June 7, 2011, the trial court heard the argument of the parties on their successive motions and entered a final judgment of dissolution of marriage, incorporating into the decree the oral settlement agreement over Garth's objection. There remained some dispute over the sale of Garth's vehicle and the minimum reserve price at which it would be listed for sale. At a hearing on August 18, 2011, on Garth's motion to amend final judgment for dissolution of marriage, to resolve all remaining issues and for entry of final and appealable order, the parties reached an agreement as to the minimum sale price and the court granted Garth's motion with no objection.

¶ 2 Garth appeals, claiming, inter alia, that the trial court erred in denying his motion to vacate the oral settlement agreement of March 23, 2011, that the oral settlement agreement was not an enforceable contract for which there was a requisite "meeting of the minds," and that he was under duress and the victim of coercion at the time the settlement was reached. We affirm.


¶ 4 Prior to dissolution and a sordid chain of events, Garth and Terry Baecker had been married for nearly 40 years. Together, they owned and operated the Baecker Agency, agent for Country Financial Insurance.

¶ 5 On the evening of January 24, 2010, Terry confronted Garth regarding a fax she found from Garth's accountant that showed irregular financial activity through their co-owned insurance agency. Specifically, the fax reflected large amounts of interest paid to Garth's clients, as well as a number of promissory notes signed by Garth of which Terry had no knowledge. The couple engaged in a heated argument. On the morning of January 25, 2010, Garth attacked Terry with a wooden club, beating her over the head and striking her multiple times, and then threw her down the stairs of the couple's home. Terry obtained an emergency order of protection in Tazewell County, identified as case Number 10-OP-72, that was extended to a plenary order of protection by the Tazewell County circuit court on March 25, 2010. Garth was charged with attempted murder, aggravated domestic battery, violation of an order of protection and escape (he cut off his ankle monitoring device following his arrest). He was convicted on June 10, 2010, and is serving a 16-year sentence in the Dixon Correctional Center.

¶ 6 On March 11, 2010, Country Financial terminated Garth's employment as a Country Financial insurance agent and financial representative. The company removed all of Garth's policies and business documents and cleaned out his office. Country Financial filed suit in the United States District Court for the Central District of Illinois against Garth and the corporation he operated, known as Cityplex Corporation, alleging trademark infringement and multiple counts of fraud. Country Financial sought monetary damages in the amount of $2 million in that suit. On September 28, 2010, an order of default was entered against Garth and Cityplex Corporation.

¶ 7 Terry suffered serious injury and incurred substantial medical expenses as a result of Garth's attack. She filed a personal injury suit against Garth in Tazewell County on June 16, 2010. Garth's counsel in the dissolution proceedings, Murphy & Dunn, drafted an answer to the personal complaint, which Garth then filed pro se. Terry filed a motion for partial summary judgment on liability grounds. After appearing in court personally on October 6, 2010, Garth was granted leave to respond to Terry's motion for partial summary judgment. Garth failed to file a response and Tazewell County circuit court judge Michael Brandt granted summary judgment on liability. The case was then set for a hearing on damages on November 18, 2010. Having reviewed the testimony and exhibits provided by Terry, Judge Brandt found in Terry's favor, assessed damages totaling $2,763,470.40 and entered a judgment for the same against Garth.

¶ 8 In the dissolution proceedings, the trial began on February 7, 2011. Following a day of testimony from Terry, the court scheduled two additional days of trial on March 23, 2011, and April 13, 2011. Before the second day of trial was set to start on March 23, counsel for both parties informed the court that an agreement on all outstanding issues had been reached. Terry was present and with counsel, Steven Wakeman. Garth was not present, either for the first day of trial on February 7, or for the March 23 hearing, as he was incarcerated in the Dixon Correctional Center. Garth waived his presence and was represented at all relevant times by Jeffrey Dunn. The trial court established that Mr. Dunn was in a position to go on the record with the settlement in Garth's absence, and he stated that he had discussed the terms with his client over the phone and received Garth's approval the night before. The terms of the oral settlement agreement were then read into the record.

¶ 9 As Mr. Wakeman outlined for the court, there was a 2009 Mercedes ML-320 automobile that was titled in Garth's name and was to be immediately placed for sale and sold. Initially, Jim Boyd, who operates a used car dealership, was to attempt to sell the vehicle for a period of up to 21 days. It was agreed that from the sales proceeds, the unpaid legal fees of Murphy & Dunn, Garth's attorneys, were to be paid up to $25,000. Any remaining net sales proceeds after the payment to Garth's attorneys were to be the sole property of Terry. It was further agreed that if Mr. Boyd was unsuccessful in his attempts to sell the vehicle, it would be listed, with a minimum agreed reserve price, on eBay. Again, any proceeds from the sale on eBay up to $25,000 would go directly to Murphy & Dunn and any remainder to Terry. Later in the proceedings, Mr. Dunn wanted to make sure everyone was "on the same page with regard to the sale of the Mercedes Benz." He reiterated that the first $25,000 from the sale proceeds would go to Murphy & Dunn in satisfaction of outstanding attorney fees, and if there remained unpaid fees above that amount, they would have to go after Garth directly. Mr. Dunn stated, "[t]hat's his [Garth's] problem. I just want to be very clear on that."

¶ 10 Prior to accepting the agreement as outlined, the trial court ensured that Terry understood its terms, that she had the right to go to trial if she so chose, and that she was voluntarily making the decision to settle all outstanding matters and be bound by agreement. The court admonished Mr. Dunn in a similar fashion, confirming that he did "have the green light to agree" to the settlement, and that Garth was aware of the terms and agreed to be bound by them. Mr. Dunn replied that, as an officer of the court, he had had the opportunity to speak with his client and review the terms of the settlement and that he had received his express approval. The trial court then accepted the oral settlement agreement as part of the record and directed counsel to prepare the judgment of dissolution for the parties to sign by the following Monday.

¶ 11 At some point following the March 23 hearing, Garth indicated that he had changed his mind. On April 19, Terry filed a motion to enforce settlement agreement and for entry of judgment of dissolution of marriage, stating that counsel for Terry had been informed that Garth refused to sign the draft of the judgment of dissolution and the accompanying settlement agreement. Terry requested that the trial court enforce the oral settlement agreement and incorporate it into an order for dissolution of marriage, and that the court direct Garth and his power of attorney, Brad McCollum, to obtain certificate of title on the Mercedes so that it could be transferred in accordance with the terms of the settlement agreement.

¶ 12 Shortly thereafter, Garth's attorneys filed a supplemental petition for interim attorney fees and costs and/or motion to withdraw, followed by a motion to vacate the March 23, 2011, oral agreement. In the petition for interim attorney fees, Garth's counsel alleged that there was an outstanding balance of $20,857.95 for legal services, that Terry was in a superior position to pay, as she had Garth's assets frozen as part of the civil lawsuit/judgment against him and that she had access to all of the marital assets totaling approximately $1.5 million. At the time this motion was filed, the Mercedes was still titled in Garth's name and had not been sold. In his motion to vacate the oral agreement, Garth argued that one of the main points of emphasis was what was going to happen to the Mercedes ML-320. Specifically, he stated that the parties agreed that he would receive the first $25,000 in sales proceeds to go directly toward his attorney fees, but that it had come to light that said distribution of the payment of his attorney fees was no longer guaranteed. Garth went on to contend that the parties were unable to agree to the minimum reserve price and who would have the authority to accept or reject any offers to purchase. As a result, Garth contended, it was clear that the parties did not actually have any agreement on all necessary terms as of March 23, 2011. Finally, Garth went on to state that at the time he gave his oral approval to counsel, he did not have any of the requisite paperwork in front of him and had to reach a decision within 20 minutes. Garth no longer believed that the agreement was in his best interests or represented an equitable distribution of the parties' marital assets and debts.

¶ 13 A hearing was held on April 29, 2010, on Terry's motion to enter final judgment. Mr. Dunn advised the court that he did not have Garth's authority at that point to sign the final judgment order and that he had filed a motion to vacate to protect his client's interests. Mr. Dunn stated that Garth had approved the settlement the night before it was read into the record, and that they (Murphy & Dunn) thought it was about a "58-42" split of the marital assets; 58% to Terry and 42% to Garth. After hearing argument of the parties, the trial court declined to rule on the motion to enter final judgment and set the matter for hearing on all remaining issues on June 7, 2011.

¶ 14 At the final hearing on June 7, Garth, by and through his attorney, once again argued that the price term on the car was a material element of the contract and there was no meeting of the minds on an essential element of the contract. Garth also argued that the settlement was unconscionable based upon the ultimate division of assets and he only had a short time to make a decision. He posited that he only had 20 minutes on the phone with his attorneys to determine whether or not the settlement was in his best interests and, at the time, he did not have any of the documentation to allow him to make an informed decision. Finally, Garth argued that he was under duress at the time and the settlement was derived as a product thereof. The trial court found that there was nothing before it to indicate that the agreement was unconscionable or the product of duress. Rather, the trial court found that Garth had simply changed his mind. It found that this was not a proper basis to set aside a settlement agreement and, accordingly, enforced the agreement and entered final judgment for dissolution of marriage.

¶ 15 On July 1, 2011, Garth filed a motion to amend final judgment for dissolution of marriage to resolve all remaining issues and for entry of a final and appealable order. This motion alleged, among other things, that the final judgment entered on June 7 did not comport with the provisions of the parties' March 23, 2011, oral agreement. Garth stated that he was to receive all of his Cityplex bank accounts as his non-marital property, and he was to receive $25,000 from the sale of the Mercedes ML-320 motor vehicle as a contribution toward attorney fees and costs. He specifically argued that at the May 20, 2011, hearing on his petition for interim attorney fees, the court ordered that $35,000 be paid out of his Cityplex accounts. By paying for interim fees out of the Cityplex account, Garth argued that he did not receive the assets he was entitled to per the March 23 oral agreement. Finally, Garth asserted that there were "blank" spaces in the judgment for dissolution where a minimum reserve price for the vehicle was to be listed; thus, the order was not final and appealable pursuant to Illinois Supreme Court Rule 304 (eff. Feb. 26, 2010).

¶ 16 On August 18, 2011, a hearing was held on Garth's motion, which was granted without objection. The minimum reserve price for sale of the car was set at $25,000 and was agreed to by both parties. Garth's attorneys were to receive $25,000 from the net proceeds of the sale for contribution to their fees, and any amount above and beyond that was to be the sole property of Terry. The judgment was rendered final in all respects with "no just reason to delay enforcement or appeal."

¶ 17 This timely appeal followed.


ΒΆ 19 I. ...

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