In re MARRIAGE OF LISA M. TURANO SOLANO, Petitioner-Appellee, and SCOTT M. SOLANO, Respondent-Appellant.
from the Circuit Court of Du Page County, No. 17-D-1437; the
Hon. Robert E. Douglas, Judge, presiding.
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.
PRESIDING JUSTICE BIRKETT delivered the judgment of the
court, with opinion. Justices Zenoff and Schostok concurred
in the judgment and 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
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
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).
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
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
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."
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
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
"[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
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 ...