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In Re Marriage of Callahan

January 23, 2013

IN RE MARRIAGE OF MICHAEL CALLAHAN, PETITIONER-APPELLANT, AND ROSEMARY CALLAHAN, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Cook County No. 08 D 7985 Honorable LaQuietta Hardy-Campbell, Judge Presiding.

The opinion of the court was delivered by: Justice Sterba

JUSTICE STERBA delivered the judgment of the court, with opinion.

Presiding Justice Neville and Justice Hyman*fn1 concurred in the judgment and opinion.

OPINION

¶ 1 The marriage between petitioner-appellant Michael Callahan and respondent-appellee Rosemary Callahan was dissolved on September 10, 2008, in a judgment of dissolution that incorporated the parties' marital settlement agreement (MSA). Two years later, respondent filed a motion to vacate the judgment of dissolution under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), alleging that the MSA was unconscionable and that: (1) petitioner fraudulently induced her to sign the MSA by misrepresenting its contents; and (2) petitioner's counsel made misrepresentations of fact and law during the prove-up hearing. Petitioner appeals from the order of the circuit court granting respondent's motion for summary judgment on count II of the petition to vacate. Petitioner argues that the court erred in granting summary judgment when there was no evidence of respondent's due diligence in bringing the motion and where he was not permitted to depose respondent. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Petitioner and respondent were married on September 17, 1979. A daughter was born to their union in 1985. The daughter had reached the age of majority when the parties entered into a legal separation agreement in 2007. The separation agreement was followed by petitioner's motion for judgment of dissolution of marriage on August 19, 2008.

¶ 4 Respondent did not attend the initial prove-up hearing on the petition for dissolution in August, though she had entered an appearance pro se. At the prove-up hearing, petitioner testified to the existence of the MSA that had been signed and initialed by him and his wife. A copy of the MSA is not contained in the record, but petitioner testified to its contents. According to his testimony, the MSA provided that neither he nor respondent was entitled to any maintenance from the other. It further provided that petitioner would pay respondent's health insurance for four years. Petitioner took on the responsibility of all marital debt, which amounted to approximately $100,000. Petitioner would also retain certain marital assets, including his pension from the Chicago fire department, where he had worked approximately 29 years, as well as the parties' house at 5309 South Nottingham. However, petitioner testified that respondent would be entitled to exclusive possession of the residence for as long as she is physically able to reside therein.

¶ 5 The court found the agreement unconscionable, stating, in pertinent part:

"THE COURT: I have a real problem with case, okay? His pension -- if there was a present cash value -- I'm not trying to play lawyer or actuary. But he's got three, four hundred thousand in his pension benefits, two hundred thousand in the house.

MR. GRANT [Petitioner's Attorney]: I think his pension might be about -- well, I think his deferred comp might be like a hundred thousand.

THE COURT: How long have you worked for the fire department? THE WITNESS [Petitioner]: Twenty-nine years.

THE COURT: And you're telling me he's go [sic] a pension of a hundred thousand? I did these things. I know what they are worth.

THE COURT: We an [sic] go on and on about this. I find that this agreement is unconscionable, okay? I am not going to enter it. *** You've got a woman who doesn't have a lawyer, with all due respect. *** The woman comes in and she's saying okay. Fine. But you tell me how she is going to live. If your client says that it was his intent to support her, put it in the agreement. Give her some ...


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