In re Marriage of Geldermann , 2024 IL App (1st) 230954-U ( 2024 )

2024 IL App (1st) 230954-UTHIRD DIVISION
May 8, 2024
No. 1-23-0954
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
JAMES J. GELDERMANN, ) Cook County
)
Petitioner-Appellant, )
) No. 20 D 7522
and )
)
VERA ILVOVSKY, ) Honorable William S. Boyd
) and James A. Shapiro,
Respondent-Appellee. ) Judges Presiding.
____________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Lampkin and Van Tine concurred in the judgment.
ORDER
¶1 Held: Affirming orders of the circuit court of Cook County in a marital dissolution case
where the appellant has failed to provide a sufficient record on appeal.
¶2 Shortly before their marriage, James Geldermann (James) and Vera Ilvovsky (Vera)
signed a premarital agreement. Six years later, they executed a postnuptial agreement which
provided, in part, that the premarital agreement was revoked. James subsequently filed a petition
for dissolution of marriage in the circuit court of Cook County. In this pro se appeal, he
challenges multiple circuit court orders which determined the validity and enforceability of the
parties’ agreements and otherwise addressed financial matters. As discussed below, we affirm.
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¶3 BACKGROUND
¶4 James and Vera married in March 2010; each was married before and had adult children.
Prior to the marriage, Vera purchased a condominium in Northbrook, Illinois, where she and
James resided (the Northbrook residence). At the time he married Vera, James had continuing
financial obligations to his first wife, Nancy Zick.
¶5 The Agreements
¶6 On the day before their wedding, James and Vera signed a “Premarital Agreement.”
According to the agreement, James was represented by counsel, and Vera represented herself.
The agreement included minimal financial disclosures; each party represented that they were
“unconcerned” regarding the precise nature and extent of the other’s assets and income.
James and Vera generally agreed to keep their property separate and to waive the right to
maintenance or contribution to attorney fees if they legally separated or divorced.
¶7 On January 31, 2016, the parties executed a “Postnuptial Agreement” which stated that
they “hereby revoke, rescind, and abrogate the *** Premarital Agreement, and replace it with the
instant Postnuptial Agreement.” In accordance with the postnuptial agreement, the net proceeds
of any sale of James’s ownership interests in two companies – a 9% interest in “Midwest[ern]
Farms” and a 5% interest in “Pacific Protein” – would become marital property. The agreement
acknowledged that James received a salary as the president of “Wireless.Dev Corporation”
(Wireless.Dev) and that his children owned the company through a trust. Vera waived all claims
as to Wireless.Dev and agreed to maintain the confidentiality of documents relating to the
company. The agreement also provided, in part, that if James initiated a legal separation or
divorce, he was required to pay maintenance to Vera in the amount of not less than $2000 per
month for 10 years – an obligation which would survive his death.
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¶8 Although the documents are not included in the record on appeal (as discussed further
below), the record suggests that James signed a will in August 2016, wherein he memorialized a
$240,000 obligation to Vera, presumably representing $2000 per month for 10 years.
He apparently executed a subsequent will in October 2017 removing her as a beneficiary,
without her knowledge.
¶9 In a rider to the postnuptial agreement executed on October 26, 2017, the parties stated
that James would pay $195,000 to Vera for her interest in the Northbrook residence and would
repay her mortgage amount through refinancing. The parties agreed that, upon completion of the
sale, the Northbrook residence would become James’s separate nonmarital property.
¶ 10 The record indicates that James paid Vera for her interest in the Northbrook residence.
Vera moved to Florida in late 2017 or early 2018, and James remained in Illinois.
¶ 11 Dissolution Proceedings
¶ 12 On October 20, 2020, James filed a petition for dissolution of marriage in the circuit
court of Cook County. A copy of the premarital agreement was appended to the petition.
James requested that the premarital agreement “become[ ] incorporated” into the judgment for
dissolution of marriage and that Vera “be forever barred” from asserting a claim for maintenance
against him.
¶ 13 In her answer to the petition, Vera denied that the premarital agreement was effective.
She also filed a counterpetition for dissolution of marriage, wherein she alleged that the
postnuptial agreement had replaced the premarital agreement and she requested spousal
maintenance. In his response to Vera’s counterpetition, James stated that the postnuptial
agreement was unenforceable and “should be rendered null and void.”
¶ 14 James subsequently filed a verified petition for a declaratory judgment that the premarital
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agreement was valid and enforceable. In her answer, affirmative defenses, and counterclaims,
Vera sought a declaratory judgment invalidating the premarital agreement – based on the parties’
express revocation thereof in the postnuptial agreement 1 – and finding the postnuptial agreement
to be valid and enforceable.
¶ 15 Following arguments of counsel, Judge William S. Boyd entered a written order on
June 14, 2021, finding that the premarital agreement was revoked by the parties in writing and
was therefore not valid and enforceable.
¶ 16 James subsequently filed a verified petition for partial summary judgment regarding the
postnuptial agreement. He advanced multiple arguments regarding the validity and effect of the
postnuptial agreement, including that: (a) the financial requirements of the agreement – except
those relating to maintenance – had been fully satisfied; (b) the agreement was “totally one-sided
in favor of Vera” and was not a valid contract; (c) enforcement of the agreement would “reduce
him to abject poverty” and force him to liquidate his nonmarital property; and (d) he signed the
agreement without the benefit of counsel and while “under extreme duress.” Vera responded, in
part, that summary judgment was improper given that there were genuine issues of material fact,
e.g., whether James was under duress when he signed the postnuptial agreement.
¶ 17 Vera also filed a notice of intent to claim dissipation of marital assets. She alleged that
James had dissipated marital assets by funding trusts for his grandchildren, purchasing a luxury
vehicle, and withdrawing significant amounts from various business and personal accounts.
James responded, in part, that certain withdrawals were for his reasonable living expenses.
¶ 18 The matter was set for trial before Judge James A. Shapiro in August 2022. Prior to trial,
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Vera alternatively maintained that the premarital agreement should be invalidated as James had
not provided reasonable disclosures regarding his finances.
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the parties filed agreed joint trial stipulations whereby various documents were received into
evidence, including the judgment of dissolution of James’ prior marriage; tax returns for multiple
years; the premarital agreement, postnuptial agreement, and rider; certain court filings; mortgage
documentation; financial affidavits; and brokerage, bank account, and credit card statements.
¶ 19 The Parties’ Testimony
¶ 20 After hearing counsels’ arguments, the circuit court denied the summary judgment
motion and reserved ruling on the declaratory judgment matters, finding there were “too many
factual issues.” The bench trial commenced, and the testimony included the following.
¶ 21 James testified that, during their marriage, Vera had withdrawn approximately $90,000
from one of her pension accounts to pay for household expenses. The postnuptial agreement
characterized this as a “loan” from Vera to James, which was secured by his approximate 5%
ownership interest in Pacific Protein Corporation. James represented that he received minimal
income from Pacific Protein, and he estimated the value of his ownership interest as between
$50,000 and $100,000. He testified that he had repaid the “loan” in full.
¶ 22 Although his income in prior years was modest, James testified that his adjusted gross
income in 2020 exceeded $400,000, mostly representing his share of the liquidation of
Midwestern Farms, a limited partnership which had been established by his parents.
¶ 23 During cross examination, James testified that he is the sole proprietor of “Wireless
Research & Trading,” which he characterized, in part, as an “investment vehicle.” He also
confirmed that he is a 50% shareholder in RedJim, LLC, another business entity which makes
investments. James was questioned regarding his role as acting president of Wireless.Dev – a
software development company – and his role as the director of technology for another business
entity, “BizDoc Storage.” When Vera’s counsel inquired whether James had previously
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disclosed his involvement in BizDoc Storage during “almost two years of litigation and a ton of
discovery,” James confirmed that he had not.
¶ 24 Vera testified that she received the premarital agreement three or four days before the
wedding and that James had stated he would not marry her unless the agreement was executed.
After a few years of marriage, Vera first learned about James’s ownership interest in Midwestern
Farms. Vera testified that she and James “came to the idea that we need *** to get an agreement
where I will be more familiar with his financial resources before the marriage.” According to
Vera, James was involved in the three-month drafting process as to the postnuptial agreement.
¶ 25 The Rulings
¶ 26 The circuit court entered a judgment for dissolution of marriage and settlement of marital
property rights on February 1, 2023 (dissolution order). In the dissolution order, the circuit court
found “no cause to disturb” Judge Boyd’s ruling on June 14, 2021, regarding the invalidity of the
premarital agreement. The circuit court then discussed – and rejected – James’s defenses to the
validity and enforcement of the postnuptial agreement, i.e., duress, unconscionability, and lack of
consideration. Among other things, the circuit court found certain testimony from James to be
lacking in credibility and observed that James admittedly failed to disclose the full extent of his
financial interests and employment activities pursuant to Vera’s discovery requests. The circuit
court also found that Vera’s waiver of any interest in Wireless.Dev constituted consideration for
the postnuptial agreement.
¶ 27 The circuit court acknowledged “an element of unfairness” in the postnuptial agreement –
e.g., the 10-year duration of maintenance is more than double what Vera would generally be
entitled to under Illinois law – but found that the maintenance provision did “not quite rise to the
level of unconscionability.” The circuit court observed that James had “eschewed the assistance”
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of the attorney who had both drafted the premarital agreement and handled his dissolution
proceedings. After finding the postnuptial agreement to be valid and enforceable, the circuit
court addressed the marital property distributions, including the following.
¶ 28 As to the approximate $400,000 proceeds from the liquidation of Midwestern Farms, the
circuit court found that an equitable division was 80% to James and 20% to Vera; approximately
$80,000 was thus awarded to Vera. The circuit court also awarded maintenance to Vera in the
amount of $2000 per month – the minimum amount as provided in the postnuptial agreement –
for a period of 10 years. As to attorney fees, the circuit court noted that the postnuptial
agreement provided that, if a party incurred legal fees due to a challenge or breach of the
postnuptial agreement by the other party, the circuit court “shall award” reasonable attorney fees
and suit expenses to the non-defaulting party. Given that James had contested the validity of the
postnuptial agreement throughout the dissolution proceedings, the circuit court awarded
reasonable attorney fees to Vera. After effectuating other distributions in accordance with the
postnuptial agreement, the circuit court found that James did not dissipate any marital assets.
¶ 29 James filed a motion to reconsider and to vacate and modify the dissolution order.
He sought an order (a) finding the postnuptial agreement was invalid and unenforceable; and
(b) vacating the obligation to pay Vera the monthly maintenance, the lump sum payment, and her
attorney fees. James also filed a motion to stay enforcement of the dissolution order.
¶ 30 In an order entered on May 2, 2023, the circuit court amended the dissolution order to
adjust the lump sum amount owed to Vera relating to the Midwestern Farms liquidation from
approximately $80,000 to approximately $67,000, based on certain capital gains taxes paid by
James. The circuit court otherwise denied the reconsideration motion and the stay motion.
In accordance with Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), the order included a
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finding of no just reason to delay enforcement or appeal of the order. James timely appealed.
¶ 31 ANALYSIS
¶ 32 James advances multiple claims of error in his pro se appellant’s brief. He primarily
challenges the circuit court’s rulings with respect to the validity of the premarital agreement and
the scope and enforceability of the postnuptial agreement. Among other things, James asserts
that the financial documents and income tax returns admitted at trial demonstrated that it would
be “impossible” to satisfy the terms of the postnuptial agreement. He further claims that the
circuit court disregarded the circumstances surrounding the execution of the postnuptial
agreement, including Vera’s threats “to make his life miserable” if he consulted his own attorney
or if he rejected the terms of the agreement. James also challenges the circuit court’s findings
regarding the payments to Vera for monthly maintenance and her attorney fees, as well as the
award of a percentage of the net proceeds of the sale of Midwestern Farms.
¶ 33 Preliminary Issues
¶ 34 As a preliminary matter, we observe that Vera did not file a brief in this appeal. We will
nevertheless address the merits of the appeal under the principles set forth in First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). Pursuant to
Talandis, in the absence of an appellee’s brief, a reviewing court should address an appeal on the
merits where the record is simple and where the claimed errors are such that the court may easily
decide the issues raised by the appellant. In re Marriage of Earlywine, 2013 IL 114779, ¶ 13.
¶ 35 We note, however, that the deficiencies of James’s brief hinder our review of his claims.
His brief violates Illinois Supreme Court Rule 341 (eff. Oct. 1, 2020), which governs the form
and content of appellate briefs. Among other things, the brief lacks a table of contents, a concise
statement of the applicable standard(s) of review, or an appendix (Ill. S. Ct. R. 341(h)(1), (3), (9)
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(eff. Oct. 1, 2020)).
¶ 36 Pursuant to Rule 341(h)(6), an appellant is to provide the reviewing court with the facts
necessary to an understanding of the case. Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). The facts
must be stated fairly and accurately without comment or argument. Id.; Ammar v. Schiller,
DuCanto & Fleck, LLP, 2017 IL App (1st) 162931, ¶ 12. While we acknowledge that James’s
brief includes an “Introduction” section which contains a basic recitation of the facts of this case,
this discussion is argumentative in parts and fails to include citations to the appellate record, as is
required by Rule 341(h)(6). Ammar, 2017 IL App (1st) 162931, ¶ 12.
¶ 37 Under Rule 341(h)(7), an appellant’s brief must set forth his contentions, which he is
required to support with argument, citations to the appellate record, and citations to authority.
Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). “This rule is especially important because, when
reviewing a case, the appellate court starts with the presumption that the circuit court’s ruling
was in conformity with the law and the facts.” McCann v. Dart, 2015 IL App (1st) 141291, ¶ 15.
In this case, the brief fails to cite the record and includes few references to applicable law.
¶ 38 “The purpose of the rules is to require parties before a reviewing court to present clear
and orderly arguments so that the court can properly ascertain and dispose of the issues
involved.” Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7. James’s pro se
status does not excuse his noncompliance with the rules. See Ammar, 2017 IL App (1st) 162931,
¶ 16 (noting a pro se party is held to the same standard as a licensed attorney). Although we
have discretion to strike a brief and to dismiss an appeal for failure to comply with the applicable
rules (McCann, 2015 IL App (1st) 141291, ¶ 12), we decline to strike James’s brief, as we
understand the core contentions presented therein. Even if we choose to reach the merits of his
arguments, however, the deficiencies of the record on appeal preclude our effective review.
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¶ 39 Claims of Error on Appeal
¶ 40 As noted above, James raises multiple challenges to the dissolution order entered
following the trial. “The standard of review in a bench trial is whether the judgment is against
the manifest weight of the evidence.” Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd.
USA, 384 Ill. App. 3d 849, 859 (2008). Accord In re Marriage of Kendra, 351 Ill. App. 3d 826,
829 (2004). A judgment is against the manifest weight of the evidence only when the findings
appear to be arbitrary, unreasonable, or not based on the evidence, or when an opposite
conclusion is apparent. Vaughn v. City of Carbondale, 2016 IL 119181, ¶ 23.
¶ 41 James, as the appellant, has the burden to present a sufficiently complete record of the
proceedings to support his claims of error and, in the absence of such a record, it will be
presumed that the circuit court’s orders had a sufficient factual basis and were in conformity with
law. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). James has failed to satisfy his burden.
The record on appeal does not include the financial affidavits submitted by the parties throughout
the dissolution proceedings or most of the exhibits which were referenced throughout the trial.
Without such documents, we are unable to assess whether the circuit court’s rulings were
arbitrary, unreasonable, or not based on the evidence. See Vaughn, 2016 IL 119181, ¶ 23. See
also Lah v. Chicago Title Land Trust Co., 379 Ill. App. 3d 933, 938-39 (2008) (noting that a deed
and trial exhibits cited in the appellant’s brief were not included in the appellate record and thus
the reviewing court would presume the circuit court’s ruling to be correct under Foutch); In re
K.S., 317 Ill. App. 3d 830, 832-33 (2000) (holding that, in the absence of the exhibits and other
reports presented during the hearings, the reviewing court would presume the circuit court’s
decision to terminate the wardship of minors was proper).
¶ 42 For example, James argues on appeal that “[t]he evidence and testimony presented at trial
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show that throughout the time that James and Vera were married that James did not have the
financial means to fulfill the terms of the postnuptial agreement.” Based on our review of the
transcripts, the evidence presented at trial included individual and joint tax returns and various
bank and brokerage statements spanning a period of multiple years. Without reviewing such
documentation, we cannot definitively determine whether the court’s findings were in error.
¶ 43 James also maintains that he signed the postnuptial agreement under duress. The trial
testimony suggested, however, that James subsequently prepared and executed a will which
memorialized some of the financial obligations set forth in the postnuptial agreement – a fact
which may undercut (or possibly bolster) his claims of duress. Nevertheless, as the appellate
record fails to include a copy of the will, its import cannot be fully assessed. Similarly, James
challenges the division of the proceeds of the Midwestern Farms liquidation, arguing that most
of the proceeds had been spent prior to the dissolution proceedings. In the absence of the
relevant bank statements and other financial records, we cannot adequately evaluate this
challenge.
¶ 44 Even if we were to overlook the deficiencies of the appellate record, we do not find the
circuit court’s rulings to be erroneous. For example, the circuit court rejected various defenses
asserted by James, i.e., that he signed the postnuptial agreement under duress and that the
agreement was unconscionable as the payments contemplated therein would reduce him to “the
verge of abject poverty and homelessness.” Such rejection was based, in part, on the court’s
negative assessment of James’s credibility. As noted by the trial court in the dissolution order,
“James admitted that he did not disclose the full extent of his financial interests and employment
activities pursuant to Vera’s discovery requests.” The trial judge, as the trier of fact, was in the
best position to judge the credibility of James and Vera and the weight to be given to their
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testimony. See Chicago’s Pizza, 384 Ill. App. 3d at 859. We further observe that James’s trial
testimony – which revealed his relatively sophisticated business and financial endeavors and his
relatively comfortable lifestyle – does not support his contention that he would be rendered
destitute by his agreed-upon post-dissolution payments to Vera. E.g., In re Marriage of
Tabassum, 377 Ill. App. 3d 761, 778 (2007) (noting that “by not providing credible evidence of
his own economic circumstances, respondent could not establish the parties’ relative economic
circumstances or that the postmarital agreement was substantively unconscionable”).
¶ 45 We also reject James’s challenges to (i) Judge Boyd’s order (before trial) regarding the
invalidity and unenforceability of the premarital agreement based on its written revocation or
(ii) Judge Shapiro’s order (after trial) addressing the motion for reconsideration. The record on
appeal does not include a transcript or other report of proceedings pursuant to Illinois Supreme
Court Rule 323 (eff. July 1, 2017) for any pretrial or posttrial hearing. Without a transcript or
acceptable substitute, we are unable to determine what arguments were made by counsel,
whether any evidence was presented, and on what basis the circuit court ruled. To the extent that
James argues on appeal that the trial court failed to account for capital gains taxes when dividing
the Midwestern Farms proceeds, we note that the order regarding the motion for reconsideration
expressly amended the dissolution order to address this issue.
¶ 46 In conclusion, due to the deficiencies of the record, we are unable to fully assess James’s
claims of error. As our supreme court has long recognized, “[a]ny doubts which may arise from
the incompleteness of the record will be resolved against the appellant.” Foutch, 99 Ill. 2d at
392. Furthermore, based on the record as presented, we do not find the circuit court’s rulings to
be against the manifest weight of the evidence, for the reasons discussed above.
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¶ 47 CONCLUSION
¶ 48 The judgment of the circuit court of Cook County is affirmed in its entirety.
¶ 49 Affirmed.
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