In re MARRIAGE OF FANNY S. LEWIN, n/k/a LEVITT, Petitioner-Appellant, and PIERRE H. LEWIN, Respondent-Appellee.
from the Circuit Court of the 10th Judicial Circuit, Peoria
County, Illinois Circuit No. 14-D-283 Honorable Kim Lee
Kelley Judge, Presiding
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Presiding Justice Carter and Justice Holdridge
concurred in the judgment and opinion.
1 Petitioner Fanny Lewin, n/k/a Levitt, filed a motion to
enforce or clarify the marital settlement agreement she
entered with respondent Pierre Lewin, which was incorporated
in the judgment of dissolution of their marriage. Pierre
moved to dismiss, which the trial court granted. Fanny
appealed. We affirm.
3 Petitioner Fanny Lewin, n/k/a Levitt, and respondent Pierre
Lewin were married in July 1997 in Las Vegas, Nevada. They
permanently moved to the United States from France in 1998,
so Pierre could pursue business opportunities. In 2000 and
again in 2004, Pierre was terminated from his employment and
the couple faced having to move back to France. In the summer
of 2004, a French business colleague, Patrick Peronnet,
suggested he and Pierre start a business in Illinois. One
condition for the partnership was that Pierre and Fanny
execute a postmarital agreement. Patrick sought the agreement
because he did not want Fanny involved in the business or to
become his business partner. Pierre and Fanny believed the
postmarital agreement would protect Fanny and the
couple's children from creditors should the new business
venture fail. In March 2005, the parties signed a postmarital
agreement. The agreement provided, in pertinent part, that
Fanny would receive the marital home, her vehicle and the
savings account in exchange for waiving maintenance. Pierre
would receive the business interests. At the time the
agreement was signed, neither Fanny nor Pierre anticipated a
4 In May 2014, Fanny filed for dissolution of the marriage.
The parties executed a marital settlement agreement (MSA),
which provides, in pertinent part:
"11. Respondent shall be allowed to claim for Federal
and State Income Tax purposes for 2016 all allowable
deductions related to the properties on Brookforest and St.
Charles, including the real estate taxes and deducible
17. Petitioner shall have as and for her own, free and clear
of any claim of Respondent the former marital residence at
3100 S. St. Charles Place, Peoria, Illinois and the residence
at 908 W. Brookforest, Peoria, Illinois, free and clear of
any claim of Respondent. Petitioner shall be responsible for
payment of 50% of the line of credit obtained to pay attorney
fees in these proceedings. The $50, 000 shall be deducted
from the $2, 000, 000.00 settlement resulting in the $1, 950,
000.00 settlement. Respondent shall be responsible for
payment of the entire $100, 000.00 line of credit and shall
hold Petitioner harmless therefrom.
Respondent shall have the right to live in and occupy the
Brookforest residence until such time as he advises the
Petitioner that he will move to another location or until
Petitioner decides to sell the residence at which time she
shall provide him with written notice and allow him 90 days
to move from the residence.
In the event Respondent decides to move from the Brookforest
residence, he shall provide Petitioner with his Notice of
Intent to Move no less than 30 days before the move.
Respondent shall be responsible for payment of all utilities
during his period of occupancy of the Brookforest residence.
In all other respects, Petitioner shall be responsible for
all expenses, debts and obligations arising out of ownership
of both properties, including the second installment of the
2015 real estate taxes payable in 2016 and all subsequent
years of real estate taxes, home owner's insurance,
together with cost of sale, including any closing costs and
5 A judgment of dissolution was entered on August 19, 2016,
which incorporated the MSA. The judgment of dissolution
included an express integration clause. In November 2016,
Fanny filed a motion to enforce or clarify the MSA, arguing
that it did not assign the mortgage payments to her and that
it was her understanding Pierre would remain responsible for
paying the mortgage because he had always made the payments.
Fanny requested the court determine that Pierre was
responsible for the mortgage on the St. Charles Place
residence and require him to reimburse her for mortgage
payments she had made and to hold her harmless.
6 Pierre moved to dismiss pursuant to section 2-615 of the
Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615 (West
2016)), alleging Fanny's motion was untimely and failed
to state a cause of action. The motion was granted in part
and denied in part. The trial court found Fanny's motion
requested the clarification or interpretation, not the
modification, of the MSA, and rejected Pierre's
untimeliness argument. The trial court reviewed the
agreement, concluded the MSA was not ambiguous, and refused
to apply the provisional admission approach to ...