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In re Marriage of Solano

Court of Appeals of Illinois, Second District

March 8, 2019

In re MARRIAGE OF LISA M. TURANO SOLANO, Petitioner-Appellee, and SCOTT M. SOLANO, Respondent-Appellant.

          Appeal from the Circuit Court of Du Page County, No. 17-D-1437; the Hon. Robert E. Douglas, Judge, presiding.

          Daniel F. Konicek and Amanda J. Hamilton, of Konicek & Dillon, P.C., of Geneva, for appellant.

          Anthony Sammarco and William J. Stogsdill, of Stogsdill Law Firm, P.C., of Wheaton, for appellee.

          Panel PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

          OPINION

          BIRKETT PRESIDING JUSTICE

         ¶ 1 In this dissolution proceeding, petitioner, Lisa M. Turano Solano, filed a petition for a declaratory judgment on the enforceability of a premarital agreement (Agreement) between her and respondent, Scott M. Solano. Following a hearing on the petition, the circuit court of Du Page County found the Agreement enforceable. Respondent appeals, contending that the trial court erred by (1) denying his request to postpone the hearing on the Agreement so that he could seek additional discovery, (2) conducting an unfair hearing, and (3) determining, on the evidence allowed at the hearing, that the Agreement was enforceable. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On December 9, 2000, the parties signed the Agreement, and on December 31, 2000, they were married.

         ¶ 4 The Agreement stated that each party had been represented by separate counsel and was advised "that in the absence of [the] Agreement each party could acquire rights in the other's property during marriage and upon termination of their marriage during life or as a surviving spouse." It specified that each party had read the Agreement and its attachments and was "entering into [the] Agreement voluntarily, with full knowledge of its legal and economic effect." The Agreement also stated:

"Schedule A and the attached Exhibit set forth substantially all of [respondent's] assets and liabilities as of December 1, 2000, valued as of that date. Schedule B and the attached Exhibit set forth substantially all of [petitioner's] assets and liabilities as of December 1, 2000, valued as of that date. Both Exhibits are attached and made a part of this Agreement. Values shown are based on market quotes, appraisals or estimates, as indicated. [Respondent and petitioner] recognize that certain assets are difficult to value and agree that the Exhibits are adequate disclosures of the other's assets, liabilities and income, and the parties expressly waive any right to disclosure of the property of the other party beyond the disclosure provided. The parties further agree that it is desirable to and they shall keep the information contained in this Agreement confidential."

         ¶ 5 The Agreement provided criteria for distinguishing between marital property and individual property. The Agreement also specified certain items of property as petitioner's individual property, namely "[t]he Family Business Property, listed in Exhibit C, whether now owned by [petitioner] or in the future owned by [petitioner]." The Agreement provided that, if the parties' marriage should terminate for a reason other than the death of a party, neither party would have a claim to the individual property of the other.

         ¶ 6 Schedules A (respondent) and B (petitioner), referenced in the preceding quote, were attached to the Agreement. Each schedule stated that an exhibit was attached thereto that set forth "the approximate value of [the party's] assets and liabilities" as of December 1, 2000. Attached to Schedules A and B were the corresponding Exhibits A and B. However, on each of the exhibits, in the space for "Assets," was written, "None."

         ¶ 7 Schedule B had a second attachment, namely the "Exhibit C" referenced in the Agreement. Exhibit C specified certain business interests to be classified as "Family Business Property" and, therefore, as petitioner's individual property.

         ¶ 8 In July 2017, petitioner filed her petition for dissolution of the marriage. She relied on the Agreement as settling the parties' property classification issues. In his response to the petition, respondent alleged that the Agreement was unenforceable.

         ¶ 9 In August 2017, petitioner filed a demand that respondent specify in a bill of particulars the grounds on which he was challenging the enforceability of the Agreement.

         ¶ 10 In October 2017, respondent answered the demand. Respondent claimed that the Agreement was unenforceable because (1) "[t]he disclosure in Schedule B and Exhibit B states 'none' when the Petitioner owned extensive assets and property that were not properly disclosed to the Respondent," (2) respondent "was not informed of the legal effect of his signing the Agreement and the waiving of his rights thereunder," and (3) the Agreement was "unconscionable and unfair."

         ¶ 11 On November 6, 2017, petitioner filed her petition for a declaratory judgment that the Agreement was enforceable. Petitioner relied on section 7 of the Illinois Uniform Premarital Agreement Act (Act) (750 ILCS 10/7 (West 2016)), which governs the enforceability of premarital agreements. The Act is the Illinois version of the Uniform Premarital Agreement Act (Uniform Act), which was drafted in 1983. See Unif. Premarital Agreement Act, 9B U.L.A. 369 (1983). The Act applies to any premarital agreement executed on or after January 1, 1990. 750 ILCS 10/11 (West 2016). Section 7(a) of the Act provides in relevant part:

"(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party." Id. § 7(a).

         Petitioner observed that a challenge under section 7(a) will fail, regardless of the adequacy of the parties' asset disclosures, if the challenger fails to show that he "did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided." Id. § 7(a)(2)(ii). Petitioner noted that the Agreement contained a waiver of the kind contemplated in section 7(a)(2)(ii), namely that the parties "agree[d] that the Exhibits are adequate disclosures of the other's assets, liabilities and income, and the parties expressly waive[d] any right to disclosure of the property of the other party beyond the disclosure provided."

         ¶ 12 In his response to the petition, respondent elaborated on his challenge to the Agreement. First, he claimed that he "did not retain counsel to review [the Agreement] and that the counsel listed therein did not inform him of the legal ramifications of the terms and conditions of [the Agreement]." Second, respondent asserted that petitioner failed to make an adequate disclosure of her assets prior to the parties' execution of the Agreement. According to respondent, the parties agreed not to disclose any assets on Exhibits A and B because they intended that only petitioner's family business interests set forth in Exhibit C would be deemed individual property. Respondent asserted that petitioner's representation of "None" in the space for assets on Exhibit B was "false and misleading." He claimed that he "relied upon the Petitioner's inaccurate disclosure as both parties were not excluding assets from the other or from the marriage, [except for] the family bakery business ownership provided in Exhibit C, and the Petitioner's reliance at this time on the failed disclosure appears to rise to the level of concealment." Respondent asserted that he "did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the Petitioner, especially in consideration of the vast property that it is believed the Petitioner holds an interest in concerning her family's business enterprises."

         ¶ 13 In an attached affidavit, to support his assertions as to the parties' mutual understanding in executing the Agreement, respondent averred in part:

"4. Approximately 30 days prior to the marriage ceremony, Lisa presented to me [the Agreement] for execution. Lisa and I discussed [the Agreement] on several occasions prior to the execution of [the Agreement] on December 9, 2000. I did not draft [the Agreement] or the Exhibits provided therein, said documents were drafted by Lisa's attorney and provided to me.
5. The discussions concerning the [A]greement were focused on [the Agreement] being in place to provide that Lisa would maintain her ownership interest in the family bakery businesses and I would not receive stock or other ownership interest in the family bakery business due to our marriage.
6. Lisa and I further discussed our income at that time and Lisa informed me that she was a salaried employee with the family bakery business and that as part of our marriage, any money that she earned or received from the family bakery business was going to be used and shared by the parties, akin to marital income. In furtherance of her statements, throughout the marriage, Lisa's income and monies received from the family bakery businesses, in any form provided, [were] used by Lisa and I for our family and in the acquisition of marital property.
7. Prior to the execution of the Premarital Agreement, and prior to the execution of Exhibit[s] A and B, Lisa and I discussed that neither of us were providing a detailed disclosure of personal property to the other as both of us agreed that all of our personal property was going to be shared and combined together and used by both [of] us as a married unit. Accordingly, both Lisa and I provided on Exhibits A and B the word 'None' regarding the disclosure of assets and the values of same as we both intended for Exhibits A and B to reflect that nothing or no personal property was being excluded from the other party as our individual property was to be combined together when married. The only assets that were to be excluded, as provided above, was that I would not receive an ownership or stock interest in the family bakery business.
8. At no time did Lisa provide to me, prior to the execution of the Premarital Agreement, any detailed disclosure of her income, assets, debts or liabilities. I did not have knowledge or the ability to obtain knowledge regarding Lisa's property. She did not provide to me any disclosure of her specific ownership interest in the family bakery business, nor did she provide to me any value of her ownership interest in the family bakery business. She did not provide to me any values of any bank accounts, financial assets, personal property or other property that she had an interest in. At the time of the execution of the Premarital Agreement I was not provided, nor was I aware of, the value of Lisa's property, personal assets, debts, obligations or the value or interest she had or may have had in the family bakery business."

         ¶ 14 On November 9, 2017, the trial court granted respondent 28 days (until December 7, 2017) to respond to the petition. Over respondent's objection, the court set the petition for a hearing on December 13, 2017.

         ¶ 15 On November 16, 2017, respondent moved to continue the hearing on the petition. Respondent claimed that he needed additional time to conduct discovery on the following issues:

"the circumstances under which the Premarital Agreement was negotiated and executed; the assets which the Petitioner had at the time of the execution of the Premarital Agreement; her earnings at that time and throughout the marriage; her interest in the substantial family business related to the Turano Baking Company business, of which she is an employee and corporate attorney; what holdings the Petitioner had at the time of the marriage, and now, in said family related businesses and how she acquired them, be it by gift or as part of her employment income, and other matters related to the negotiations for an execution of the Premarital Agreement and the lack of disclosures of information concerning the Petitioner's assets and income."

         Respondent asserted that discovery was still in its "initial stages." He claimed that, although he had submitted his financial-disclosure statement and answered petitioner's requests for discovery, petitioner had failed to submit her own financial disclosure or answer discovery requests.

         ¶ 16 In her response to the motion to continue, petitioner argued, inter alia, that additional discovery was unnecessary because the parties' mutual waiver of further disclosure was of itself dispositive of respondent's assertion that he had not received an adequate disclosure from petitioner.

         ¶ 17 At the hearing on the motion to continue, respondent alleged that, when he signed the Agreement, petitioner had not disclosed her interest in her family's "sizable estate" and that respondent was not otherwise aware of that interest. Respondent claimed that discovery was necessary regarding the extent of petitioner's interest in the estate. The court disagreed and denied the motion to continue:

"[R]eally, what we are talking about here is what's in the four corners of a premarital agreement. And you know, the only thing I can see that we would even have testimony on would be the parties and perhaps their attorneys at the time. That would be it.
I don't see that this needs discovery. It's a pretty simple matter. We are going to keep the 12/13 hearing. And you go with what you have got because the parties are-to me, it seems like a relatively simple issue. So, despite the amount of money that's involved in it, the issue involved is relatively straightforward. So, motion is denied."

         ¶ 18 In moving for reconsideration, respondent disagreed with the trial court's view that the enforceability of the Agreement was a matter restricted to the four corners of the document. Respondent identified several issues involving extrinsic facts.

         ¶ 19 At the hearing on the motion to reconsider, the court agreed with respondent that the issues raised went beyond the text of the Agreement, but the court continued to believe that further discovery was unnecessary. Respondent's enforceability challenge could be resolved by the Agreement and the testimony "of the parties and perhaps their attorneys." The court "[could not] see what collateral people other than that would have knowledge as to whether [the Agreement] was unconscionable." The court assured respondent that, if the issues as developed at the hearing necessitated additional discovery, it would continue the hearing for that purpose.

         ¶ 20 At the December 13, 2017, hearing on the petition, the trial court allowed respondent to present his case first, since he had the burden of proof under section 7 of the Act. Respondent asked to open his case by calling ...


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