In re Marriage of Stoker ( 2021 )

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Appellate Court Date: 2022.07.29
13:25:28 -05'00'
In re Marriage of Stoker, 2021 IL App (5th) 200301Appellate Court In re MARRIAGE OF DANIEL P. STOKER, Petitioner-Appellant,
Caption and ERICA L. STOKER, Respondent-Appellee.
District & No. Fifth District
No. 5-20-0301
Rule 23 order filed July 15, 2021
Motion to
publish allowed August 19, 2021
Opinion filed August 19, 2021
Decision Under Appeal from the Circuit Court of St. Clair County, No. 18-D-324; the
Review Hon. Stacy L. Campbell, Judge, presiding.
Judgment Affirmed.
Counsel on Daniel J. Grueninger, of Belleville, for appellant.
Appeal
Charles W. Courtney Jr. and Jayni D. Lintvedt, of Courtney Clark
Law, P.C., of Belleville, for appellee.
Panel JUSTICE WELCH delivered the judgment of the court, with opinion.
Presiding Justice Boie and Justice Wharton concurred in the judgment
and opinion.
OPINION
¶1 This is an appeal of the judgment of the circuit court of St. Clair County dissolving the
marriage between the petitioner, Daniel Stoker, and the respondent, Erica Stoker. Daniel
appeals the judgment of the court upholding the validity of two settlement agreements entered
into between the parties after their separation. Specifically, Daniel contends that the court erred
(1) in shifting the burden to him to prove the written agreements were not valid, enforceable
contracts, i.e., that they lacked offer, acceptance, and consideration; (2) by refusing to allow a
second hearing on the contract invalidity grounds raised by him after the court found that the
agreements were enforceable; (3) in finding that the written agreements were valid,
enforceable agreements and entering the judgment of dissolution based on them; and (4) in
denying his request to modify temporary child support and maintenance based on his voluntary
change of employment. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 On September 4, 2004, Daniel and Erica were married. They had two children, C.S., born
July 2006, and L.S., born February 2012. On April 26, 2018, Daniel filed a petition to dissolve
the marriage. At that time, Daniel and Erica were both 36 years old. On June 8, 2018, Erica
filed an answer to the petition for dissolution of marriage, in which she stated that the parties
had entered into written settlement agreements prepared by Daniel; the first agreement was
titled divorce agreement between Daniel Stoker and Erica Stoker and was dated November 30,
2017, and the other agreement was dated February 17, 2018, and concerned the purchase of a
new vehicle for Erica. That same day, Erica filed a counterpetition for dissolution of marriage,
where she indicated that the settlement agreements resolved the issues of maintenance and
child support and partially divided the marital property and requested the trial court enter a
judgment in accordance with those agreements. She also filed a petition for temporary relief.
¶4 The November 2017 divorce agreement between the parties provided, inter alia, as
follows: (1) Daniel would pay Erica eight years of maintenance in the amount of $9400 per
month, which would continue even if Erica remarried (unless the new husband’s income was
higher); (2) Daniel would pay 28% of his income for child support when maintenance ended;
(3) Daniel would pay for the children’s college; (4) Daniel would pay for the children’s braces,
vehicles, and vehicles’ insurance; (5) Erica would get the marital home and the equity in that
home; (6) Erica would be responsible for the marital debt owed to her parents; (7) Daniel and
Erica would divide the marital savings account, or Daniel would take $10,000, whichever was
lower in January 2019; (8) Daniel would help with expenses for the children’s extracurricular
activities; (9) Daniel would not voluntarily take new employment without paying the above
obligations; (10) Daniel’s 401(k) would be equally split as of the date of the divorce; (11) Erica
would receive one-half of Daniel’s military retirement pay; (12) Erica would have sole custody
of the children; and (13) Daniel would get open parenting time with the children and the ability
to vacation with them as decided by him and Erica. The written agreement only had a signature
line for Daniel, and it was signed by him.
¶5 The February 2018 written agreement provided that Daniel would assume responsibility
for the loan on a 2018 Toyota Highlander, up to $361 per month for 60 months, he would have
no ownership interest in the vehicle, as it was a gift to his children and Erica, and the loan and
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title would be in Erica’s name. This agreement was signed by Erica and Daniel and was
notarized.
¶6 On October 10, 2018, the trial court entered a temporary order by agreement of the parties,
ordering Daniel to pay Erica $9600 per month in temporary maintenance and child support and
granting Daniel leave to file a declaratory action to determine the enforceability of the parties’
agreements. On February 6, 2019, Daniel filed a motion to modify the temporary order, asking
the court to reduce the temporary maintenance and child support awards because the written
agreements were not enforceable postnuptial or settlement agreements and he had recently
experienced a reduction in income due to a change of employment.
¶7 On April 29, 2019, Daniel filed a memorandum of law in opposition to the entry of a marital
settlement agreement (MSA) based on the written agreements, denying that he had entered into
the agreements. He contended that, pursuant to section 502(b) of the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/502(b) (West 2018)), the provisions regarding
child support and parental responsibility allocation were not binding on the court. He argued
that the remaining provisions were unconscionable, the agreements failed to identify the
essential terms, such as the specific property and value to be divided and the identities of the
obligor and the obligee, and the provisions in the agreements were ambiguous in that they
would require parol evidence to be given meaning and effect. Daniel further argued that his
signatures on the agreements were obtained by threat, coercion, and duress, which rendered
them unenforceable and unconscionable. He contended that Erica drafted the agreements,
presented them to him, and threatened to report him to his military commanding officer for
allegedly engaging in an extramarital affair with a coworker if he refused to sign (at the time,
Daniel was in the National Guard reserves). Attached to the motion was Daniel’s affidavit in
which he stated that he did not enter into the settlement agreements willingly, freely, or with
full knowledge.
¶8 On June 27, 2019, the trial court held a hearing, where it heard testimony about the
enforceability of the divorce agreements. Daniel admitted that, after the separation, he had
multiple meetings with Erica at Starbucks and Barnes & Noble to try to determine a fair split
of the assets, maintenance, and child support. On November 30, they met at Starbucks, and
Erica had a list of demands; they were there for approximately two hours. He wrote out her
demands while she articulated them because she was bad at spelling. The initial written
agreement reflected those demands. She told him what the expenses were for the marital home
and how much money she would need to stay in the house with the children. He only signed
the document because she threatened to reveal his alleged affair with his coworker to his
commanding officer at Tyndall Air Force Base (Tyndall). Erica said that both her and her
father, who was a colonel in the Air Force, would report the affair and use their leverage to
defame him and his coworker (who was currently his girlfriend) and get them fired. He
believed that, if she had followed through with her threat, it would have, at a minimum, made
his job more difficult and ruined his opportunities for promotion and, worst case scenario,
would have gotten him fired. He explained that, within the military, adultery was a crime and
commanders take it seriously. The commanders also take the morale and welfare of their units
seriously and have relieved people from their duties when they felt like the morale or
cohesiveness of the unit was threatened. He was not in a relationship with his current girlfriend
when he signed the November agreement, but they had gone on some dates. Erica also
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mentioned that her father was only staying silent because she needed Daniel to continue
earning money for her and the children.
¶9 Directly after the meeting, he exercised his parenting time with the minor children, and
when he brought them home, Erica presented him with a typed document. He read the
document and told her that he did not agree with it. However, he only had about five minutes
before he had to return to Tyndall, so he signed it anyway. At that time, he was not financially
able to make the agreed child support and maintenance payments. He had full-time
employment with Delta Airlines (Delta) as a pilot, earning approximately $156,000 annually,
and earned between $20,000 and $30,000 working with the National Guard reserve. His
December 31, 2017, pay stub from Delta indicated that his gross annual income was $174,611
and that Delta had made $28,609 in contributions to his 401(k) account. His 2017 military
earnings statement showed that his year-to-date total wages were $32,122.73 and his year-to-
date entitlements totaled $34,962. He acknowledged that he had recently taken a leave of
absence from Delta and was not receiving any income from there.
¶ 10 Daniel acknowledged that he agreed to make the payments toward the purchase of a new
vehicle for Erica. He went with her to the dealership to test drive the vehicle, and although he
told her that they could not afford the payments, she reminded him that she had never reported
his alleged affair to his commander. He eventually agreed to make the payments but told her
that she could not blackmail him anymore.
¶ 11 Daniel’s conversations with Erica on November 30 were not his last communications with
her regarding the initial agreement. He testified about text messages he sent to Erica in which
he said that he did not want to go back on what he had agreed to but that he felt like the amounts
were too high and unfair and he did not want to feel as if he had been screwed. He wanted to
be fair and suggested that he pay her $8000 per month, which would give him approximately
$1000 per month for his living expenses. He indicated that he felt caught off guard without any
research or information. He also indicated that he had talked to four friends about the support
amounts, and $8000 was generous. On cross-examination he acknowledged that he had talked
to other people regarding the agreement, but he claimed that he could not remember who he
talked to. His text messages did not mention any of the alleged threats that Erica made against
him. The text messages were entered into evidence.
¶ 12 Erica testified that she was not employed full-time; she ran a photography studio, at which
her net income was less than $10,000 in 2017. After going to counseling, in the beginning of
November, Daniel informed her that he wanted to end their marriage. He said that he just
wanted his freedom, to keep the lawyers out of it, and to come up with a fair settlement
agreement. She wanted to keep it amicable, so she agreed to meet with him on November 30
to discuss the terms of the separation. Although she knew that Daniel was having an affair at
that point because he admitted it to her, she did not make any threats or show up to the meeting
with a list of demands. She did not know what they would talk about at the meeting, but her
intention was to discuss the children and what they would need for security.
¶ 13 During their conversation, Daniel wrote down the things that they agreed to, and he signed
that handwritten document. Most of the items on the list were from Daniel, and although she
had not done any research in preparation for the meeting, she did tell him what their expenses
were. After the discussion, Daniel said that the handwritten agreement was not official and that
they should type it up so he could sign it. Erica agreed to type it up at home while he took the
children swimming. When he returned with the children, they sat down again, reviewed the
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typed agreement, and discussed its terms. When asked what objections Daniel had to the
agreement’s provisions, she responded that he did not object to any of them, as most of them
were his idea; he wanted what was fair because he loved his children, and he wanted his
freedom. Before signing the agreement, Daniel read through it pretty quickly. Then, he signed
it and went downstairs to play video games with their children. He did not return to Tyndall
immediately but left later that day or the next morning.
¶ 14 Erica testified that Daniel knew that their expenses were between $12,000 and $13,000 per
month, although they would likely decrease once they were no longer living together. They
both wanted her to remain in the marital home with the children. The amount of maintenance
was Daniel’s idea, and he said that $9400 per month was less than one-third of what he could
make just showing up to work at Delta. Erica acknowledged that the agreed amount was
generous. Daniel also told Erica that there was no way that she would not get remarried, she
had been a good wife but was not for him, she would likely marry a youth pastor who would
not make much money, and if that happened, he wanted the children to be provided for because
he had the means. He never expressed to her on November 30 that he could not make the
financial commitments in the agreement, nor did he ever express concern about her threatening
his employment. She acknowledged that her father was not happy about the situation between
her and Daniel, but it was understood that, if Daniel lost his job, Erica and the children would
be greatly affected, as Daniel would lose additional income and their healthcare benefits. She
explained that she was still in love with Daniel at the time they entered into the first agreement,
she knew that his military employment was his identity, and she would not have threatened to
take that away from him.
¶ 15 As for the February 2018 agreement, Erica explained that it was time for her to get a new
car because the van was “on its last leg” and the doors would not close. Daniel had told her
they would get a new vehicle when he got his annual bonus from Delta in February. He used
part of his bonus to purchase the van, but she had made the payments since. When Daniel
initially prepared the agreement, he had included a provision prohibiting her from saying
anything about his affair. However, she told him that was not her goal, and she just wanted to
move on with her life. She denied threatening him that day to get him to sign the agreement.
When asked on cross-examination why Daniel would include a provision about the affair in
the agreement if she had not been threatening to reveal it, she responded that it was because
Daniel knew his affair was against military code.
¶ 16 Between the signing of the two agreements, Erica noted that her communications with
Daniel were very amicable, and she thought this was because he was dealing with a lot of guilt
for leaving without first talking to the children and for leaving her feeling devasted. She
explained that her entire goal was to get along for the children, so she did everything she could
to speak respectfully and amicably to him and move forward with forgiveness.
¶ 17 The first time that Erica knew Daniel had changed his mind about the written agreements
was when she received a text message from him. After receiving a second text message, she
felt like Daniel did not know what he earned and that he had either been talking to his girlfriend
or an attorney because what he was saying to her was nothing like what they had discussed on
November 30.
¶ 18 After the testimony, the trial court announced its oral ruling on the enforceability of the
written agreements. The court noted that both parties had two completely different versions of
the circumstances surrounding the entry of the agreements, so its determination was based on
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credibility. The court noted that Daniel had first testified on direct examination that he made
$156,000 from Delta and between $20,000 and $30,000 from his reserve pay. However, the
court noted that he then admitted on cross-examination that he actually made $174,611 from
Delta and almost $35,000 from the reserves. The court found that this information was
pertinent to whether Daniel had enough money to enter into the contract, and it was concerned
about the inconsistent testimony. The court then found that Daniel’s text messages indicated
that he had experienced buyer’s remorse and that it was likely that he went and talked to some
people, potentially did his own research, and learned that a court likely would not have awarded
that much money in both maintenance and child support. Based on the credibility of the
witnesses, the issues with Daniel’s testimony about his income, the interpretation of the text
messages, and the lack of any text messages pertaining to any alleged coercion or duress, the
court found that Daniel failed to meet his burden of proving that he only entered into the written
agreements as a result of coercion or duress. As for unconscionability, the court found that the
agreements were not unconscionable where the parties voluntarily agreed to a temporary order
in which the support amounts that Daniel agreed to pay were actually higher than the amounts
that he agreed to pay pursuant to the November 2017 agreement. However, the court cautioned
that there may be specific terms that it might not enforce, and they would get to that, but the
contract as a whole was not unconscionable.
¶ 19 That same day, the trial court entered a written order in which it indicated that it issued an
oral ruling that would be reduced to writing and ordered the parties to submit a parenting plan.
¶ 20 On October 29, 2019, Daniel filed a motion for declaratory judgment, asking for a
declaration that the November 2017 written agreement was invalid and not binding on the
parties. In the motion, Daniel contended that the written agreement lacked the requirements
for a valid contract, as there was no offer, in that the terms were vague and ambiguous and
they failed to state an offer with sufficient clarity, which could not be cured with parol
evidence. Daniel also argued that there was no acceptance because Erica never signed the
agreement or provided any other evidence of timely written acceptance and there was no
consideration given by Erica in exchange for his promises.
¶ 21 On November 5, 2019, Erica filed a motion for entry of a judgment, asking the trial court
to enter an order setting the parenting plan and a judgment for dissolution of marriage in
accordance with its previous rulings.
¶ 22 On December 10, 2019, Daniel filed a motion to reopen proofs, obtain ruling, and other
relief, requesting that the trial court allow the presentation of additional evidence on the
validity of the written agreements or, in the alternative, enter a ruling that the agreements were
invalid postnuptial agreements. In the motion, Daniel contended that he had a valid defense to
the entry of the initial agreement in that it lacked acceptance and consideration and was merely
a unilateral promise. He argued that the June 2019 hearing was not a hearing on all matters
concerning the validity of the agreements; alternatively, he argued the hearing was on all
matters but that the trial court did not rule on the validity of the agreements and had heard no
evidence on this issue. He also requested that the court hold a hearing or, in the alternative,
render a ruling on his motion to modify maintenance and child support.
¶ 23 On December 17, 2019, Erica filed a motion to strike Daniel’s motion for declaratory
judgment, arguing that the issue of the validity and enforceability of the written agreements
had previously been decided by the trial court (the ruling was entered five months before
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Daniel filed his motion for declaratory judgment) and that Daniel was barred by res judicata
from bringing a second action on this same issue.
¶ 24 On December 20, 2019, the trial court entered a judgment of allocation of parental
responsibilities, which included setting out a parenting time schedule.
¶ 25 On March 12, 2020, the trial court held a hearing on a continuation of all remaining issues.
The court commenced by first hearing arguments on Daniel’s motion to reopen proofs on the
issue of the validity of the written agreements. Prior to arguments, the court explained that,
when the June 2019 hearing was commenced, the court and counsel for both parties discussed
how to proceed in the matter. The court stated that, because a declaratory judgment action was
not filed, it made sense to begin the hearing by deciding whether the agreements were
enforceable and counsel did not object to that plan. The court noted that the argument that
Daniel presented was that the agreements were unconscionable because of coercion and duress;
the court stated that those were the only reasons given as to why the agreements should not be
enforced. The court further stated that Daniel’s motion to reopen proofs raised new theories as
to why the agreements were not valid and that those arguments were not made at the previous
hearing. The court explained that its understanding of why the case did not go forward with
the rest of the issues that day was because most, if not all, of the remaining issues could be
resolved without further court action; in support, the court noted that a parenting plan had been
entered following that hearing. However, it explained that not all of the issues were able to be
resolved after that hearing.
¶ 26 The trial court then addressed Daniel’s counsel and stated that the only way it would allow
him to reopen proofs on an already litigated issue was if there were new facts to present
between the previous hearing and that day. In response, Daniel’s counsel contended that the
previous hearing was not a hearing on every issue regarding the validity and enforceability of
the agreements; the hearing was limited to the issue of unconscionability; the court never
determined whether the agreements were valid contracts, i.e., whether there was offer,
acceptance, and consideration; and the court did not need to hear arguments on those issues
because it could just look to the four corners of the documents to determine validity. The court
then responded that it had given both sides an opportunity to present arguments on the
enforceability of the agreements and that the only arguments that Daniel made were that they
were unconscionable due to coercion and duress. After hearing further argument, the court
found that Daniel had an opportunity to present every basis on which he was objecting to the
validity and enforceability of the written agreements at the June 2019 hearing. Thus, the court
granted Erica’s motion to strike Daniel’s motion for declaratory judgment. Daniel then made
a formal offer of proof.
¶ 27 Pursuant to the offer of proof, Daniel’s counsel elicited testimony from Erica that she typed
the November 2017 agreement after Daniel had written it out and that its terms were the result
of discussions between her and Daniel based off what he knew to be his income, what was fair
to the children, what would avoid litigation, and what would give Daniel his freedom. Erica
stated they agreed, as a married couple of almost 15 years, that those particular terms would
be appropriate. In response to a question about whether there were any provisions in the
agreement where she agreed to give Daniel something, she responded that Daniel agreed to
give her the house, so that he could walk away and live with his girlfriend, and she agreed to
be responsible for the mortgage on the home after January 1, 2019. She also agreed that she
would be responsible for the $38,000 loan owed to her parents. As for the maintenance
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provision, she stated that it was something they decided after discussing how much Daniel
could make at Delta and his income from the reserves. Erica acknowledged that she asked for
the provision prohibiting Daniel from obtaining new employment without first paying the
support amounts because she thought it would be inappropriate for him to quit any of his jobs
without paying what he agreed to. When asked what else she had promised to give under the
agreement, she responded that she had given Daniel 15 years of dedication and that there was
not much else for her to give him besides his freedom. She explained that there was nothing
more for her to give because she had already given up her degree and Daniel indicated that he
only wanted his freedom and to leave with some dignity after his affair. They entered into the
agreements to avoid any court proceedings, and with the little legal knowledge they had, they
did the best they could. She did not believe that she needed to sign the first agreement because
it was based off what Daniel wanted, him moving forward in his new chapter of his life and
her being able to move forward with some security. At the time they entered into the
agreements, she did not think that he would change his mind.
¶ 28 In contrast, Daniel testified that all of the provisions of the November 2017 agreement were
Erica’s idea, she calculated $9400 per month for maintenance, and the only thing he asked of
her was to take the debt that was owed to her parents. However, he acknowledged he had some
input in the agreed-upon maintenance amount. At the time of their discussion, he asked Erica
to change some of the provisions that he did not agree with, but she responded that those items
were just a “starting point.” He did not know why Erica did not sign the first agreement. The
offer of proof was then concluded, and the hearing on all remaining issues commenced.
¶ 29 Erica was brought back up to the stand and testified as follows. She was 38 years old and
had an associate’s degree for radiology. However, she never worked in radiology and did not
keep up with the continuing education requirements because Daniel did not want her to work
and they moved around during their marriage since he was in the military. She was self-
employed working as a photographer and had been a photographer on and off since 2013. As
of March 5, 2020, her gross income was approximately $616 per month and, after expenses,
she took home approximately 30% of that. She explained that she had a difficult time growing
her business since they moved from Savannah, Georgia, to O’Fallon, Illinois, in late 2015 and
because of the time that she devoted to the divorce proceedings and being the sole caretaker
for the children. Every time they moved, she had to reestablish her business. Given her pricing
structure and her schedule as a single mother, she hoped to have at least one client every week
or every two weeks, but in photography, there were some seasons where she would not have
any clients. She had not sought out other employment because she did not qualify for anything
earning more than minimum wage and she had the potential to earn more if she focused on
growing her photography business and was able to devote more time to that. She was severely
dyslexic, so it took her significantly more time to fill out financial documents.
¶ 30 The loan that was owed to her parents had not been paid since June 2018 because Daniel
stopped making the payments; they had agreed to pay her parents $1000 per month until the
loan was paid in full. They had entered into a written agreement with her parents with regard
to the terms of the loan, and the agreement was admitted into evidence.
¶ 31 Daniel was active-duty military until 2015 and then went to work for Delta as a pilot. They
had just built a house and knew the children were not getting any cheaper, and this gave him
more time to spend with them and also more income. Prior to their separation, Erica and Daniel
had numerous discussions about Daniel’s desire to continue flying military aircraft, and he was
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able to do so in the reserves. He previously told her that he would choose flying military aircraft
over her and the children. In 2019, he quit his job at Delta and accepted a full-time job with
the National Guard flying military aircraft. She was surprised by his decision because it was a
decrease in his income and he was on a new career path with Delta. At Delta, he worked 15
days per month, he had more time to spend with the children, he could make $300,000 within
a short period of time, and he could also still fly military aircraft the first week of every month
with the reserves.
¶ 32 Erica testified that Daniel barely exercised his parenting time with the children in 2019 and
that his time with the children had not increased since he quit flying for Delta. Excluding
Christmas, when he had the children for eight days, he only had them for four overnights. He
had one visit in March 2020, but there was not another one planned because he canceled the
next visit after they had a confrontation at her house. Daniel’s inability or refusal to spend time
with the children impacted her ability to earn a living. In October 2018, Daniel was ordered to
pay $9600 per month to her for support, but she never received the full amount from him. From
February 6, 2020, through the present, the only payments that she received were as follows:
$3215 in February, $2500 in March, and another $41 in March. Delta paid out profit-sharing
every year in February, and in February 2020, Daniel received a check for $23,012.
¶ 33 Daniel testified that he and Erica had two children, C.S., who was 13 years old, and L.S.,
who was 8 years old. In May 2003, he was on active duty in the Air Force as an instructor pilot.
He married Erica approximately nine months later. From 2009 until 2012, he was a fighter
pilot stationed in Japan. Erica lived there with him. After that, he was assigned to Savannah,
Georgia, in the Army Ranger Unit. They lived there until March 2015. He then started looking
for different assignments besides active-duty Air Force because he wanted to fly F-16s or F-
15s (military fighter aircraft). Although he accepted a job with Delta as a pilot in March 2015,
he explained that the job was a placeholder to “get back in the fighter community” and he could
not find employment as a fighter pilot at the time. The job with Delta was a great opportunity
because the company was mainly based on seniority; he could start there, take a leave of
absence to fly for the National Guard, continue to accrue seniority with Delta while completing
full military retirement, and then finish his career at Delta with a higher seniority after he
retired from the military. He explained that service members working with a civilian
organization were able to take time off without penalty while doing military service; he was
allowed to return to his civilian employment without penalty with regard to pay and years of
service. Erica supported his decision to accept the job with Delta. When he left active duty in
2015, he had 12 years and 6 months of military service and had 7½ years until he was eligible
for full retirement benefits. Based on this, he thought that he could work toward a 20-year
retirement with the military while being employed with Delta. He also worked part-time with
the Army Reserves in Tyndall.
¶ 34 From March 2015 until he found new full-time employment with the military in 2019, he
continued applying for different jobs in various guard units. In 2016, he was offered
employment at Whiteman Air Force Base in Missouri, but his desire to fly military aircraft had
been a source of contention between him and Erica throughout their marriage. In April 2019,
he left his employment with Delta and obtained full-time employment as a fighter pilot because
he wanted full retirement with the military; the Tyndall base was destroyed by a hurricane in
October 2018, so he was unable to fly in the reserves there; he wanted to fly an operational
fighter; and at Delta, he was the most junior captain and was the last to pick his monthly
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schedule, so he had to work the majority of the weekends and holidays and got the worst trip
sets.
¶ 35 Daniel’s pay statement from Delta on December 31, 2017, showed that his total year gross
income was $174,611, and Delta contributed an additional $28,609 to his 401(k) that year. His
2017 year-end earnings statement from the reserves showed his total entitlements were
$34,962. He also received an additional $7832 in consulting income. In January 2018, he
became a captain at Delta, and his pay increased. In 2018, he worked an average of 23 to 25
days per month. Based on a demonstrative exhibit that he presented to the trial court, he
represented that his total income for 2018 was $263,002.79, but he acknowledged that, with
Delta’s 401(k) matching, his total income was approximately $300,000. His 2019 income
included income from Delta through May, which included his profit-sharing payment, and his
new employment as a fighter pilot. As of April 30, 2019, around the time that he left Delta, his
year-to-date base pay was $75,217, he received $28,039 in profit-sharing, and he received
$16,783 in 401(k) contributions. He received $72,097 from his new full-time position with the
National Guard and approximately $5000 from his consulting work. In 2020, he still received
the profit-sharing from Delta and was paid $40,675. He also earned $147,020 from the National
Guard.
¶ 36 Daniel agreed that he had three overnights with the children in February 2019, one
overnight in April 2019, one overnight in June 2019, and eight days at Christmas. Other than
paying for the children’s insurance, he had not paid any of their out-of-pocket medical bills.
He signed the initial agreement between himself and Erica knowing that he would not be able
to afford the amount of support; he anticipated being promoted to a captain at Delta, and the
support amount was based on captain pay rates.
¶ 37 After the hearing, that same day, the trial court entered a written order, inter alia, requiring
the parties to submit written judgments and arguments by March 26, 2020, and striking
Daniel’s motion for declaratory judgment.
¶ 38 On June 10, 2020, the trial court entered a judgment of dissolution of marriage where it
discussed the enforceability of the written agreements. The court noted that it was required to
discuss the enforceability of the agreements under section 502(b) of the Act (750 ILCS
5/502(b) (West 2018)), which provided that any provision in the agreement, except for those
providing for support and allocating parental responsibility, would be binding on the court
unless it found that the agreement was unconscionable. The court also noted that it was
Daniel’s burden to prove that he was subject to coercion and duress, and it had previously ruled
on this issue, but it was going to elaborate on that ruling. With regard to coercion, the court
noted that the parties met at Starbucks for two hours to discuss the initial agreement and then,
after the meeting and upon Daniel’s request, Erica prepared a comprehensive typewritten
version of the agreement that the parties discussed and Daniel signed it. Then, in February
2018, Daniel signed an additional agreement regarding the purchase of a new vehicle for Erica.
Having considered the testimony, the credibility of the parties, and the text messages between
the parties, the court found that Daniel failed to meet his burden to demonstrate that the written
agreements were unconscionable based upon coercion and duress at the time of their execution.
¶ 39 The trial court also noted that it must consider the economic positions of both parties
immediately following the execution of the agreements and determine whether the agreed
monthly amount of $9400 for support was unconscionable based on what those obligations
would have been if calculated from the parties’ 2017 income. Based on the calculations
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provided by Daniel, monthly maintenance would have been $5220.54, and child support would
have been $1869 per month, for a total of $7089.54. The court noted that Daniel instead agreed
to pay $7531 per month in maintenance and found that the increase of $2310.46 was not
unconscionable. The court further found that Daniel reaffirmed his willingness to pay that
amount when he agreed to the October 2018 temporary order, in which he was ordered to pay
$9600 per month in unallocated support, and he was financially able to pay that amount until
he became voluntarily underemployed. Thus, the court found that the November 2017 and
February 2018 agreements were enforceable.
¶ 40 The trial court then set out the provisions for maintenance, child support, property
distribution, and allocated parental responsibilities. The court ordered, inter alia, Daniel to pay
maintenance in the amount of $6810 per month for eight years, found that the maintenance
award was modifiable pursuant to the terms of section 504 of the Act (id. § 504) on any basis
other than a reduction in Daniel’s income caused by his voluntary leave from his employment
with Delta, ordered Daniel to pay child support in the amount of $2590 per month, awarded
Erica the marital home with her being solely responsible for the mortgage payment on the
residence, ordered Erica solely responsible for the debt owed to her parents, and ordered Daniel
to pay Erica $361 per month for 60 months toward the Toyota Highlander payments.
¶ 41 Also in the judgment, the trial court denied Daniel’s motion to modify the temporary order
based on his change of employment. The court noted that, at the time of the entry of the
temporary order, Daniel was employed by the United States Air Force Reserve and Delta
Airlines as a pilot, his 2017 annual income was $208,821.58, his 2018 annual income was
$263,002.79, and his earnings were almost $60,400 more when he filed his motion to modify
than when the divorce agreement was entered. The court noted that it heard the following
testimony about Daniel’s change of employment: the change was purely voluntary as he chose
to take a leave from Delta and commence employment on a full-time basis with the
Massachusetts Air National Guard, he was aware of the temporary support order that ordered
him to pay $9600 per month to Erica, and he was also aware that he signed the agreement
committing to pay $9400 per month to Erica regardless of any change in active-duty status or
voluntary change in employment. Having considered the parties’ testimony and the credibility
of the witnesses, the court found that Daniel’s change of employment was voluntary and that
he was unreasonably failing to take advantage of an employment opportunity at Delta. The
court noted that this was not a case where it was required to speculate as to a party’s motivation
in changing employment because Daniel admitted on cross-examination that he told Erica that
he would choose flying jets over her and the children any day, and he followed through on this
threat by voluntarily reducing his income.
¶ 42 On July 7, 2020, Daniel filed a motion to reconsider the trial court’s finding that the written
agreements were enforceable, arguing they lacked acceptance and consideration and that the
court had not heard any evidence relating to the validity of the agreements as binding,
postnuptial agreements. On August 12, 2020, the court entered an order denying Daniel’s
motion with regard to the validity of the written agreements. Daniel then filed a notice of
appeal. After filing the notice of appeal, Daniel filed, in the trial court, another petition to
modify maintenance and child support because he returned to his former employment with
Delta and, due to wage reductions and cutbacks, his income had substantially reduced.
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¶ 43 II. ANALYSIS
¶ 44 A. The Validity and Enforceability of the Written Settlement Agreements
¶ 45 Daniel first contends that the trial court improperly shifted the burden of proving that the
written agreements were valid, enforceable contracts to him. Specifically, he contends that
Erica failed to prove that the written agreements were valid contracts in that there was no
acceptance on her part and no consideration given by her in exchange for Daniel’s promises.
Alternatively, Daniel argues that the court erred in finding that the written agreements were
valid and enforceable.
¶ 46 It is well settled that Illinois law favors the amicable settlement of property rights in cases
of marital dissolution. In re Marriage of Lorton, 203 Ill. App. 3d 823, 825 (1990). To promote
the amicable settlement of disputes between parties in a divorce action, the Act provides that
parties may enter into an agreement containing provisions for disposition of their property,
maintenance, support, and parental responsibility allocation. 750 ILCS 5/502(a) (West 2018).
The terms of the settlement agreement, except for those providing for support and parental
responsibility allocation, are binding on the court unless it finds, after considering the
economic circumstances of the parties and any other relevant evidence produced by the parties,
that the agreement is unconscionable. Id. § 502(b). Thus, settlement agreements are binding
absent a finding of unconscionability. In re Marriage of Wig, 2020 IL App (2d) 190929, ¶ 19.
“If the parties decide to settle their property rights by mutual agreement rather than by statute,
they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App
(1st) 102114, ¶ 21.
¶ 47 The terms of the settlement agreement are subject to the rules of construction for contracts,
and the burden rests on the party asserting the agreement to establish its existence by clear and
convincing evidence. Lorton, 203 Ill. App. 3d at 826; In re Marriage of Doermer, 2011 IL App
(1st) 101567, ¶ 27. For the agreement to be enforceable, the material terms must be definite
and certain, so that the trial court can determine from the terms and provisions, under the rules
of construction and applicable principles of equity, what the parties have agreed to do. In re
Marriage of Haller, 2012 IL App (5th) 110478, ¶ 26. Property settlement agreements, which
have been assented to by both parties, may not be cancelled solely because one party withdraws
his assent prior to the entry of the judgment; a settlement agreement should not be disregarded
simply because one party has second thoughts. Id. ¶ 44. Where the contents of the agreement
are testified to and the objecting party fails to object or to give evidence to the contrary, the
agreement is established. Id.
¶ 48 The determination of whether a valid settlement agreement occurred is in the discretion of
the trial court, and its decision will not be reversed unless the court’s conclusion is against the
manifest weight of the evidence. In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 25.
¶ 49 1. Establishing the Existence of the Agreements
¶ 50 Here, we note at the outset that Erica, as the party asserting the agreements, had the initial
burden of establishing the existence of those agreements by clear and convincing evidence.
We find that Erica has met that burden. Erica first asserted the existence of the two written
agreements in her petition for dissolution of marriage, and then she attached those written
agreements to her counterpetition for dissolution of marriage. The first agreement set forth
various provisions relating to maintenance, the marital residence, custody, parenting time, the
marital debt, child support, and other child-care-related expenses. This agreement was typed
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up by Erica and signed by Daniel. The second agreement dealt with the purchase of a new
vehicle for Erica and the children, and both parties signed it. In his filings with the trial court,
Daniel essentially acknowledged the existence of the two agreements but disputed their
validity and enforceability. Thus, we find that Erica has satisfied her burden of proving the
existence of the written agreements by clear and convincing evidence.
¶ 51 2. Acceptance and Consideration
¶ 52 a. Forfeiture
¶ 53 Although Daniel challenged the enforceability of the written agreements prior to the trial
court’s ruling that the agreements were enforceable, he did not argue lack of acceptance and
consideration until after the hearing and after that ruling. After Daniel initially challenged the
enforceability of the written agreements, the court gave him leave to file an action for
declaratory judgment. Even though he did not file a declaratory judgment action before the
June 2019 hearing on all remaining issues, he did set forth his arguments concerning the
enforceability of the agreements in his subsequent pleadings. In his April 19, 2019,
memorandum of law in opposition of the entry of the purported MSA, he contended that the
agreements were contrary to public policy as they affected child custody, visitation, and child
support; they were unenforceable as they were unconscionable; there was no meeting of the
minds because the agreements failed to recite essential terms; the agreements’ provisions were
ambiguous; and he was forced to enter into the agreements by coercion and duress. Then, in
his position statement filed prior to the hearing on all remaining issues, Daniel asked the court
to make a determination that the agreements were unenforceable.
¶ 54 During the June 27, 2019, hearing, the trial court allowed each party to present evidence as
to the enforceability of the written agreements; the testimony presented focused on
unconscionability and duress. After hearing the evidence, the court stated as follows:
“This court, as petitioner’s counsel said for the record in the beginning of this case, the
court decided that it would first decide on the enforceability of the contract that was
signed by the petitioner on November 30th of 2017. And so that’s what this court is
prepared to make a ruling on. It would be the enforceability of that contract as well as
the enforceability of the second contract.”
At this point, neither party objected or expressed any other understanding as to the procedure
and purpose of the hearing. The court then announced its oral finding that the agreements as a
whole were enforceable and issued a written order reiterating its findings. Because the parties
focused on unconscionability and duress, the court’s findings also focused on these issues. In
the written order, the court noted that there was evidence taken on the declaratory judgment, 1
it had issued an oral ruling that was reduced to writing, and it announced that the parenting
order was to be submitted. Again, Daniel did not indicate that he was under the impression that
the issue on the enforceability of the agreements had not been fully resolved at this point. It
was not until four months after the court entered its order finding that the agreements were
valid and enforceable that Daniel argued that the agreements were not valid contracts, i.e., that
they lacked acceptance and consideration. At this point, Daniel had obtained new counsel, and
1
At this point, a motion for declaratory judgment had not been filed, but the trial court determined,
and the parties agreed, that it was necessary to determine the enforceability of the written agreements.
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Erica had requested entry of her proposed judgment for dissolution of marriage based on the
court’s previous rulings.
¶ 55 At the March 2020 hearing on all remaining issues, including Daniel’s motions seeking to
reopen proofs and for declaratory judgment, the trial court explained that, when the June 2019
hearing commenced, the court and counsel for both parties discussed how to proceed in the
matter. The court indicated that it made sense to begin by deciding whether the agreements
were enforceable. The court stated that both parties presented evidence on the enforceability
of the agreements, and the only argument presented by Daniel was unconscionability due to
coercion and duress. The court indicated that its understanding of why the case did not proceed
with the rest of the issues set that day was because, once it found the agreements between the
parties enforceable, most, if not all, of the remaining issues could be determined without further
court action. The court even noted that a parenting plan had been entered following that
hearing. Although Daniel’s counsel argued that it was understood that the June 2019 hearing
would not fully resolve the issue of the validity and enforceability of the agreements, the court
disagreed. The court concluded that Daniel had an opportunity to present every basis on which
he was objecting to the written agreements at the hearing. In rejecting Daniel’s attempt to raise
these arguments after the previous ruling, the court pointed out that these issues were “new
theories” that he could have raised in the eight months between him being granted leave to file
a declaratory judgment action and the hearing on the enforceability of the agreements and,
further, could have presented argument and evidence on those issues at the actual hearing. We
agree with the trial court.
¶ 56 In In re Marriage of Heinrich, 2014 IL App (2d) 121333, ¶ 62, the Second District held
that, where a party only raises a specific argument objecting to the validity of an agreement
after hearing, on declaratory judgment, arguments concerning the validity and enforceability
of that agreement, the party forfeits that argument. There, respondent only raised the argument
that he was forced to enter into the parties’ premarital agreement by coercion, which made the
agreement unconscionable, in his motion to reconsider. Id. Similarly, Daniel failed to raise his
arguments concerning acceptance and consideration until after the hearing was held on the
validity and enforceability of the agreements and after the court made its decision. At the June
2019 hearing, the parties had ample time to present all their evidence and arguments as to the
validity and enforceability of the agreements, which included any challenge to a lack of
acceptance and consideration. There was no indication in the record that the parties could only
present their arguments on unconscionability and could not challenge the validity of the
agreements. There was also no indication in the record that this hearing would not fully resolve
the matter. Thus, we find that Daniel has forfeited any further challenge to the validity and/or
enforceability of the written agreements entered between the parties because he failed to make
those arguments in the trial court.
¶ 57 b. Subsequent Hearing on the Validity of the Agreements
¶ 58 Alternatively, Daniel contends that the trial court erred in refusing to rule or to allow a
second hearing on the contract invalidity grounds that he raised in his motion for declaratory
judgment. Daniel argues that he specifically pled that the written agreements were invalid and
unenforceable in his memorandum of law filed in opposition of entry of the MSA, which was
filed before the June 2019 hearing; he reiterated the “more specific bases” for why the
agreements were unenforceable in his motion for declaratory judgment; it was clear that the
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June 2019 hearing was not a hearing on all of the issues regarding the enforceability of the
agreements and instead was focused on the narrow issue of unconscionability; and the court
never ruled on whether there was acceptance and consideration, which were required for a
valid contract.
¶ 59 The essential requirements of a declaratory judgment action are (1) a plaintiff with a legal
tangible interest, (2) a defendant having an opposing interest, and (3) an actual controversy
between the parties concerning such interests. The Carle Foundation v. Cunningham
Township, 2017 IL 120427, ¶ 26. An actual controversy means a concrete dispute admitting an
immediate and definitive determination of the parties’ rights, the resolution of which will aid
in the termination of the controversy or some part thereof. Id. At the time that Daniel filed his
motion to reopen proofs and motion for declaratory judgment, the issues involving the validity
and enforceability of the written agreements were already decided. Thus, Daniel did not seek
a declaration as to an actual controversy, as any declaration on an already decided issue would
do nothing to aid in the termination of a controversy or some part thereof. See id. ¶ 28
(plaintiff’s action did not seek a declaration as to an actual controversy, as such a declaration
would do nothing to aid in the termination of the controversy or some part thereof, as that
question had already been settled). Accordingly, we find that the court did not err in refusing
to reopen the proofs and allow him a second attempt to challenge the validity of the written
agreements.
¶ 60 c. The Existence of Acceptance and Consideration
¶ 61 Notwithstanding forfeiture, we find that the testimony provided at the June 2019 hearing
indicated that there was acceptance and consideration when the parties entered into the written
agreements. The basic requirements of a contract are offer, acceptance, and consideration. In re
Marriage of Tabassum, 377 Ill. App. 3d 761, 770 (2007). Consideration is a bargained-for
exchange of promises or performance. Id. An act or promise that benefits one party or is
detrimental to the other party is sufficient consideration. Id. Whether a contract contains
consideration is a question of law that we review de novo. Id.¶ 62 First, although Daniel contends there was no acceptance because Erica did not sign the
initial agreement, we find that there was ample evidence in the testimony presented at the
hearing indicating that she accepted the written agreements. At the June 2019 hearing, Erica’s
unrebutted testimony was that Daniel wanted to end their almost 15-year marriage, he wanted
his freedom, and they wanted to keep the lawyers and the court out of it, so they engaged in
several discussions to come to an amicable divorce agreement, which would fairly split the
assets and figure maintenance and child support. Daniel acknowledged that these conversations
occurred. Erica explained that she wanted to keep their interactions amicable and that she
believed that Daniel felt guilty for leaving his family and for her resulting devastation.
¶ 63 The parties spent two hours at Starbucks coming to the terms outlined in the November
2017 agreement; they agreed that it was originally handwritten by Daniel, but then Erica took
the document home and typed it up, and it was signed by Daniel. Although Erica did not sign
the agreement, she testified that she thought Daniel was the only one that needed to sign it. As
for the specific provisions in the agreement, Erica indicated that most of the items were
Daniel’s ideas based on what he thought was fair and considering his salary, the parties’
expenses, and the children’s ages. They agreed that she should remain in the marital residence
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with the children, the agreed maintenance amount was less than one-third of what Daniel could
make by just showing up to work at Delta, and Daniel wanted to provide for his children.
¶ 64 Regarding the subsequent agreement, which was signed by both parties, Erica testified that
they needed a new vehicle because their van was on its last leg. They had discussed purchasing
a new vehicle for some time, Daniel had said that he could use his annual profit-sharing bonus
from Delta, which would cover a lot of the purchase price, and he agreed to purchase the
vehicle for the children.
¶ 65 Moreover, we find that Daniel’s argument that Erica offered no consideration in exchange
for his promises is unpersuasive. In coming to an agreement to resolve their impending divorce,
the parties would be able to maintain an amicable relationship, Daniel could ensure that the
children were taken care of and had security, and the parties would avoid litigation and the cost
of attorney fees while Daniel obtained the freedom that he desired. Also, the specific provisions
of the agreements showed that Erica provided consideration in exchange for Daniel’s promises,
as obligations were assigned and certain property was awarded to each party. For instance,
Daniel was obligated to pay $9400 per month in maintenance for eight years; to pay for the
children’s post-high-school educational expenses; to pay for the children’s braces, cars, and
car insurance; and to make the car payments on the new vehicle. Daniel was also obligated to
contribute toward the cost of certain field trips and extracurricular activities for the children,
and Erica was responsible for the remaining expenses. Child support was reserved until after
the conclusion of the maintenance payments. Although Erica received the marital residence,
she was responsible for the mortgage debt and the $38,000 marital debt owed to her parents.
Daniel’s retirement accounts and military retirement were to be split equally. While Erica
received “sole custody” of the children, Daniel was awarded open parenting time to be
exercised at his discretion.
¶ 66 Further, we find unpersuasive Daniel’s argument that the debt owed to Erica’s parents was
not consideration. Although we acknowledge that a transfer from a parent to a child is
presumed to be a gift, that presumption is rebuttable and may be overcome by clear and
convincing evidence to the contrary. In re Marriage of Didier, 318 Ill. App. 3d 253, 258
(2000). Erica presented a copy of the loan agreement between her and Daniel and her parents
that was executed on June 1, 2015, and signed by both parties and both of Erica’s parents. The
purpose of the loan was to finish the basement in their newly built home. Erica also presented
a record of payments made by Daniel pursuant to the terms of that agreement; Daniel agreed
that he made those payments. Erica had been unable to continue making those payments after
Daniel stopped because he had also ceased making his court-ordered child support payment.
Thus, based on this evidence, the presumption of a gift was overcome with clear and
convincing evidence that the debt was a loan from Erica’s parents to the parties that was made
during their marriage.
¶ 67 Accordingly, the record indicates that the parties came together to reach an amicable
divorce settlement that would avoid unnecessary litigation, provide security to their minor
children, and give Daniel the freedom that he sought. In the agreements, the parties each made
certain concessions and contemplated a mutual release of marital property rights to determine
what was fair to them. See In re Estate of Brosseau, 176 Ill. App. 3d 450, 453 (1988) (a mutual
release of property rights by a husband and wife is adequate consideration to support a
settlement agreement). Thus, even though Daniel never objected to the alleged acceptance
and/or consideration of the agreements at the June 2019 hearing, Erica still presented sufficient
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evidence to demonstrate that it existed.
¶ 68 B. Unconscionability
¶ 69 A settlement agreement will only be set aside if procured by fraud or coercion or if contrary
to any rule of law, public policy, or morals. Lorton, 203 Ill. App. 3d at 825. The party asserting
duress or coercion must prove the allegation by clear and convincing evidence. In re Marriage
of Smith, 164 Ill. App. 3d 1011, 1017 (1987); In re Marriage of Hamm-Smith, 261 Ill. App. 3d
209, 215 (1994). When determining whether the agreement was unconscionable, the trial court
assesses the facts existing immediately after the agreement is made. Wig, 2020 IL App (2d)
190929, ¶ 19. A settlement agreement is unconscionable where there is an absence of
meaningful choice on the part of one of the parties combined with contract terms that are
unreasonably favorable to the other party. Baecker, 2012 IL App (3d) 110660, ¶ 41. To
determine whether an agreement is unconscionable, the court must consider (1) the conditions
under which the agreement was made and (2) the economic circumstances of the parties that
result from the agreement. Wig, 2020 IL App (2d) 190929, ¶ 19. Duress can make a settlement
agreement between spouses unconscionable. Baecker, 2012 IL App (3d) 110660, ¶ 41.
¶ 70 In assessing whether the written agreements were unconscionable, the trial court
considered the circumstances surrounding the entry of the agreements and the economic
circumstances of both parties. As previously noted, the parties met at Starbucks for two hours
to discuss the initial agreement, Erica typed up the handwritten agreement at Daniel’s request,
Daniel signed that typed agreement, and Daniel also signed the subsequent agreement. Noting
that both parties had two completely different versions of the circumstances surrounding the
entry of the two agreements, the court indicated that its determination was based on credibility.
Pointing to Daniel’s inconsistent testimony about his income and the text messages he sent to
Erica, which indicated that he was suffering from buyer’s remorse, the court concluded that
Erica’s version of events was more credible. The court found it likely that Daniel talked to
some people, potentially a lawyer, about the agreements and discovered that a court likely
would not have ordered him to pay that much money for maintenance and child support. It is
well established that credibility determinations should be left to the trial court, as it is in the
best position to observe the personalities and temperaments of the parties and assess their
relative credibility when there is conflicting testimony on issues of fact. In re Marriage of
Whitehead, 2018 IL App (5th) 170380, ¶ 21. As the court’s credibility determination was not
against the manifest weight of the evidence or an abuse of discretion, we will not overturn it.
See id. (a trial court’s credibility determination should only be overturned if it is against the
manifest weight of the evidence or an abuse of discretion).
¶ 71 As for the economic position of the parties immediately following the agreements, Daniel’s
annual income in 2017 from Delta was $174,611 and almost $35,000 from the reserves, while
Erica was self-employed, earning less than $10,000 annually in 2017. Although she had a
degree in radiology, she did not work in that field and did not keep up with her continuing
education because Daniel did not want her working during their marriage. While Daniel was
active-duty military, they moved around, which made it difficult for Erica to establish a
thriving photography business.
¶ 72 In the judgment for dissolution of marriage, the trial court noted that, pursuant to the
calculations provided by Daniel, monthly maintenance would have been $5220.54 and child
support would have been $1869 per month, for a total of $7089.54. However, Daniel agreed to
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instead pay $7531 per month in maintenance. The court determined that the increase of
$2310.46 was not unconscionable. The court also determined that Daniel reaffirmed his
willingness to pay that amount when he agreed to the October 2018 temporary order, in which
he was ordered to pay $9600 per month in unallocated support. The court found that Daniel
was financially able to pay that amount until he became voluntarily underemployed. Thus,
having considered the testimony, the credibility of the parties, and the interpretation of the text
messages between the parties, the court found that Daniel failed to meet his burden of proof to
demonstrate that the written agreements were unconscionable. After a careful consideration of
the record before us, which includes the trial court’s thorough review of the evidence presented,
we are unconvinced by Daniel’s argument that the written agreements were unconscionable.
¶ 73 C. Motion to Modify
¶ 74 Lastly, Daniel contends that the trial court erred in denying his request to modify child
support and maintenance based on his voluntary change of employment.
¶ 75 Section 510 of the Act provides that support orders may be modified only upon a showing
of a substantial change in circumstances. 750 ILCS 5/510(a-5) (West 2018). The party seeking
modification has the burden of proving a substantial change in circumstances. In re Marriage
of Saracco, 2014 IL App (3d) 130741, ¶ 13. A voluntary change of employment resulting in
diminished financial status may constitute a substantial change in circumstances if undertaken
in good faith. In re Marriage of Barnard, 283 Ill. App. 3d 366, 369 (1996). In determining
whether a voluntary change of employment is in good faith, the trial court looks at whether the
change was driven by a desire to evade financial responsibility for supporting the children. Id.Section 505(a)(3.2) of the Act, which does not include the good-faith consideration, states that
if a parent is voluntarily unemployed or underemployed, child support shall be calculated based
on a determination of potential income. 750 ILCS 5/505(a)(3.2) (West 2018).
¶ 76 The ability of the maintenance-paying spouse to contribute to the other spouse’s support
can be properly determined by considering both the paying spouse’s current and future ability
to pay ongoing maintenance. In re Marriage of Blume, 2016 IL App (3d) 140276, ¶ 30. The
trial court considers the level at which the spouse is able to contribute, not merely the level at
which he is willing to work. Id. When imputing income, a court must find one of the following:
(1) the payor has become voluntarily unemployed, (2) the payor is attempting to evade a
support obligation, or (3) the payor has unreasonably failed to take advantage of an
employment opportunity. Id.¶ 77 Considerable discretion is placed in the trial court in support modification proceedings, and
generally the court’s order will not be disturbed on review absent an abuse of discretion. Cohn
v. Cohn, 122 Ill. App. 3d 763, 765 (1984). An abuse of discretion occurs where no reasonable
person would take the view adopted by the trial court. In re Marriage of Deike, 381 Ill. App.
3d 620, 630 (2008).
¶ 78 Here, it was Daniel’s burden, as the moving party, to establish that a substantial change in
circumstances occurred. In determining whether a substantial change of circumstances
occurred, the trial court looked at the time period between October 2018, when Daniel agreed
to pay $9600 per month to Erica, and February 2019, when he filed his request to modify
support. Daniel acknowledged that his change of employment was based on his voluntary
decision to take leave from his employment at Delta and return to full-time employment with
the Air Force, so he could fly fighter planes. He testified that, by taking a leave of absence with
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Delta in April 2019, he would be eligible for retirement with the military sooner, have
weekends off, have more time to spend with the children, and have better health benefits for
the children. However, he acknowledged that his hiatus with Delta would end, and he would
resume receipt of his full-time income from Delta around the time that his maintenance
obligation to Erica would end. He also testified that he was 5 years and 10 months away from
full retirement with the military, acknowledged that he gained 6 months of time toward his
retirement while working for Delta, and acknowledged that he would have continued to accrue
time toward his active-duty military retirement while working for Delta but that it would have
taken longer.
¶ 79 Daniel also acknowledged that he only exercised the following parenting time in 2019:
three overnights in February, one overnight in April, one overnight in June, and eight days
over Christmas. Erica testified that his parenting time had not increased since he left his
employment with Delta. As for health insurance, Daniel testified that, while he paid for the
children’s insurance premiums, he had not paid anything toward the children’s medical co-
pays or out-of-pocket health-related expenses. Daniel presented a demonstrative exhibit in
which he represented that his 2017 gross income was $208,821.58, his 2018 gross income was
$263,002.79, his 2019 gross income was $199,191.55, and his 2020 gross income was
$192,696.22. However, with regard to his 2018 income, Daniel admitted in his testimony that
the income listed in the exhibit did not include the employer-provided 401(k) matching that he
received from Delta, which would have increased his total income to $300,000. Also, with
regard to his 2017 income, the evidence showed that his total 2017 income was $246,014.50,
his December 31, 2017, pay stub from Delta showed a total gross income of $174,611, he
received an additional $28,609 in employer-provided 401(k) matching, his total entitlement
from the reserves was $34,962, and he received an additional $7832.50 in consulting income.
¶ 80 After considering the above testimony and the credibility of the witnesses, the trial court
found that Daniel’s change of employment was voluntary and that he was unreasonably failing
to take advantage of an employment opportunity at Delta. The court noted that it did not have
to speculate as to Daniel’s motivation for the change of employment because he admitted that
he told Erica that he would choose flying jets over her and the children any day. The court also
noted that Daniel followed through on this threat by voluntarily reducing his income after he
agreed to pay Erica $9600 in temporary support and had signed the written agreement
committing to pay $9400 per month to Erica, regardless of any change in active-duty status or
voluntary change in employment. Based on the above, we find that the evidence supports the
trial court’s finding, and the court’s denial of Daniel’s motion to modify was not an abuse of
discretion.
¶ 81 III. CONCLUSION
¶ 82 For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County.
¶ 83 Affirmed.
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