In re Marriage of Baecker ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Marriage of Baecker, 2012 IL App (3d) 110660
Appellate Court In re MARRIAGE OF A. GARTH BAECKER, Petitioner-Appellant, and
Caption TERRY JOAN BAECKER, Respondent-Appellee.
District & No. Third District
Docket No. 3-11-0660
Rule 23 Order filed December 3, 2012
Motion to publish
allowed December 31, 2012
Opinion filed December 31, 2012
Rehearing denied January 8, 2013
Held On appeal from a dissolution judgment entered a few days after petitioner
(Note: This syllabus was convicted for attempting to murder respondent, the appellate court
constitutes no part of rejected petitioner’s contentions that the oral settlement agreement
the opinion of the court incorporated into the judgment lacked a “meeting of the minds” and that
but has been prepared he was under duress and a victim of coercion at the time it was reached,
by the Reporter of since the only evidence he presented in support of his arguments was that
Decisions for the he was in prison and no longer believed the agreement was in his best
convenience of the interests.
reader.)
Decision Under Appeal from the Circuit Court of Tazewell County, No. 10-D-58; the
Review Hon. Jerelyn D. Maher, Judge, presiding.
Judgment Affirmed.
Counsel on Jeffrey M. Dunn (argued), G. Edward Murphy, and Shahzad R. Khan, all
Appeal of Murphy & Dunn, P.C., of Peoria, for appellant.
Steven A. Wakeman (argued) and Christopher H. Sokn, both of Kingery
Durree Wakeman & Ryan, Associates, of Peoria, for appellee.
Panel PRESIDING JUSTICE SCHMIDT delivered the judgment, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.
OPINION
¶1 The petitioner, Garth Baecker, filed a petition for dissolution of marriage in the circuit
court of Tazewell County on February 10, 2010. On June 10, 2010, Garth was convicted and
sentenced to prison for attempting to kill the respondent, Terry Baecker. On March 23, 2011,
the parties indicated that they had reached an agreement in the dissolution proceedings. The
trial court read the terms of that oral agreement into the record and instructed counsel to
prepare the final judgment. Garth, who was incarcerated in the Dixon Correctional Center
throughout the course of this dissolution proceeding, refused to sign the prepared judgment
incorporating the oral settlement. On April 19, 2011, Terry filed a motion to enforce the
judgment and for entry of final judgment of dissolution. Shortly thereafter, on April 25,
Garth filed a motion to vacate the oral settlement and set the matter for trial on all remaining
issues. On June 7, 2011, the trial court heard the argument of the parties on their successive
motions and entered a final judgment of dissolution of marriage, incorporating into the
decree the oral settlement agreement over Garth’s objection. There remained some dispute
over the sale of Garth’s vehicle and the minimum reserve price at which it would be listed
for sale. At a hearing on August 18, 2011, on Garth’s motion to amend final judgment for
dissolution of marriage, to resolve all remaining issues and for entry of final and appealable
order, the parties reached an agreement as to the minimum sale price and the court granted
Garth’s motion with no objection.
¶2 Garth appeals, claiming, inter alia, that the trial court erred in denying his motion to
vacate the oral settlement agreement of March 23, 2011, that the oral settlement agreement
was not an enforceable contract for which there was a requisite “meeting of the minds,” and
that he was under duress and the victim of coercion at the time the settlement was reached.
We affirm.
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¶3 BACKGROUND
¶4 Prior to dissolution and a sordid chain of events, Garth and Terry Baecker had been
married for nearly 40 years. Together, they owned and operated the Baecker Agency, agent
for Country Financial Insurance.
¶5 On the evening of January 24, 2010, Terry confronted Garth regarding a fax she found
from Garth’s accountant that showed irregular financial activity through their co-owned
insurance agency. Specifically, the fax reflected large amounts of interest paid to Garth’s
clients, as well as a number of promissory notes signed by Garth of which Terry had no
knowledge. The couple engaged in a heated argument. On the morning of January 25, 2010,
Garth attacked Terry with a wooden club, beating her over the head and striking her multiple
times, and then threw her down the stairs of the couple’s home. Terry obtained an emergency
order of protection in Tazewell County, identified as case number 10-OP-72, that was
extended to a plenary order of protection by the Tazewell County circuit court on March 25,
2010. Garth was charged with attempted murder, aggravated domestic battery, violation of
an order of protection and escape (he cut off his ankle monitoring device following his
arrest). He was convicted on June 10, 2010, and is serving a 16-year sentence in the Dixon
Correctional Center.
¶6 On March 11, 2010, Country Financial terminated Garth’s employment as a Country
Financial insurance agent and financial representative. The company removed all of Garth’s
policies and business documents and cleaned out his office. Country Financial filed suit in
the United States District Court for the Central District of Illinois against Garth and the
corporation he operated, known as Cityplex Corporation, alleging trademark infringement
and multiple counts of fraud. Country Financial sought monetary damages in the amount of
$2 million in that suit. On September 28, 2010, an order of default was entered against Garth
and Cityplex Corporation.
¶7 Terry suffered serious injury and incurred substantial medical expenses as a result of
Garth’s attack. She filed a personal injury suit against Garth in Tazewell County on June 16,
2010. Garth’s counsel in the dissolution proceedings, Murphy & Dunn, drafted an answer
to the personal complaint, which Garth then filed pro se. Terry filed a motion for partial
summary judgment on liability grounds. After appearing in court personally on October 6,
2010, Garth was granted leave to respond to Terry’s motion for partial summary judgment.
Garth failed to file a response and Tazewell County circuit court judge Michael Brandt
granted summary judgment on liability. The case was then set for a hearing on damages on
November 18, 2010. Having reviewed the testimony and exhibits provided by Terry, Judge
Brandt found in Terry’s favor, assessed damages totaling $2,763,470.40 and entered a
judgment for the same against Garth.
¶8 In the dissolution proceedings, the trial began on February 7, 2011. Following a day of
testimony from Terry, the court scheduled two additional days of trial on March 23, 2011,
and April 13, 2011. Before the second day of trial was set to start on March 23, counsel for
both parties informed the court that an agreement on all outstanding issues had been reached.
Terry was present and with counsel, Steven Wakeman. Garth was not present, either for the
first day of trial on February 7, or for the March 23 hearing, as he was incarcerated in the
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Dixon Correctional Center. Garth waived his presence and was represented at all relevant
times by Jeffrey Dunn. The trial court established that Mr. Dunn was in a position to go on
the record with the settlement in Garth’s absence, and he stated that he had discussed the
terms with his client over the phone and received Garth’s approval the night before. The
terms of the oral settlement agreement were then read into the record.
¶9 As Mr. Wakeman outlined for the court, there was a 2009 Mercedes ML-320 automobile
that was titled in Garth’s name and was to be immediately placed for sale and sold. Initially,
Jim Boyd, who operates a used car dealership, was to attempt to sell the vehicle for a period
of up to 21 days. It was agreed that from the sales proceeds, the unpaid legal fees of Murphy
& Dunn, Garth’s attorneys, were to be paid up to $25,000. Any remaining net sales proceeds
after the payment to Garth’s attorneys were to be the sole property of Terry. It was further
agreed that if Mr. Boyd was unsuccessful in his attempts to sell the vehicle, it would be
listed, with a minimum agreed reserve price, on eBay. Again, any proceeds from the sale on
eBay up to $25,000 would go directly to Murphy & Dunn and any remainder to Terry. Later
in the proceedings, Mr. Dunn wanted to make sure everyone was “on the same page with
regard to the sale of the Mercedes Benz.” He reiterated that the first $25,000 from the sale
proceeds would go to Murphy & Dunn in satisfaction of outstanding attorney fees, and if
there remained unpaid fees above that amount, they would have to go after Garth directly.
Mr. Dunn stated, “[t]hat’s his [Garth’s] problem. I just want to be very clear on that.”
¶ 10 Prior to accepting the agreement as outlined, the trial court ensured that Terry understood
its terms, that she had the right to go to trial if she so chose, and that she was voluntarily
making the decision to settle all outstanding matters and be bound by agreement. The court
admonished Mr. Dunn in a similar fashion, confirming that he did “have the green light to
agree” to the settlement, and that Garth was aware of the terms and agreed to be bound by
them. Mr. Dunn replied that, as an officer of the court, he had had the opportunity to speak
with his client and review the terms of the settlement and that he had received his express
approval. The trial court then accepted the oral settlement agreement as part of the record and
directed counsel to prepare the judgment of dissolution for the parties to sign by the
following Monday.
¶ 11 At some point following the March 23 hearing, Garth indicated that he had changed his
mind. On April 19, Terry filed a motion to enforce settlement agreement and for entry of
judgment of dissolution of marriage, stating that counsel for Terry had been informed that
Garth refused to sign the draft of the judgment of dissolution and the accompanying
settlement agreement. Terry requested that the trial court enforce the oral settlement
agreement and incorporate it into an order for dissolution of marriage, and that the court
direct Garth and his power of attorney, Brad McCollum, to obtain certificate of title on the
Mercedes so that it could be transferred in accordance with the terms of the settlement
agreement.
¶ 12 Shortly thereafter, Garth’s attorneys filed a supplemental petition for interim attorney fees
and costs and/or motion to withdraw, followed by a motion to vacate the March 23, 2011,
oral agreement. In the petition for interim attorney fees, Garth’s counsel alleged that there
was an outstanding balance of $20,857.95 for legal services, that Terry was in a superior
position to pay, as she had Garth’s assets frozen as part of the civil lawsuit/judgment against
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him and that she had access to all of the marital assets totaling approximately $1.5 million.
At the time this motion was filed, the Mercedes was still titled in Garth’s name and had not
been sold. In his motion to vacate the oral agreement, Garth argued that one of the main
points of emphasis was what was going to happen to the Mercedes ML-320. Specifically, he
stated that the parties agreed that he would receive the first $25,000 in sales proceeds to go
directly toward his attorney fees, but that it had come to light that said distribution of the
payment of his attorney fees was no longer guaranteed. Garth went on to contend that the
parties were unable to agree to the minimum reserve price and who would have the authority
to accept or reject any offers to purchase. As a result, Garth contended, it was clear that the
parties did not actually have any agreement on all necessary terms as of March 23, 2011.
Finally, Garth went on to state that at the time he gave his oral approval to counsel, he did
not have any of the requisite paperwork in front of him and had to reach a decision within
20 minutes. Garth no longer believed that the agreement was in his best interests or
represented an equitable distribution of the parties’ marital assets and debts.
¶ 13 A hearing was held on April 29, 2010, on Terry’s motion to enter final judgment. Mr.
Dunn advised the court that he did not have Garth’s authority at that point to sign the final
judgment order and that he had filed a motion to vacate to protect his client’s interests. Mr.
Dunn stated that Garth had approved the settlement the night before it was read into the
record, and that they (Murphy & Dunn) thought it was about a “58-42” split of the marital
assets; 58% to Terry and 42% to Garth. After hearing argument of the parties, the trial court
declined to rule on the motion to enter final judgment and set the matter for hearing on all
remaining issues on June 7, 2011.
¶ 14 At the final hearing on June 7, Garth, by and through his attorney, once again argued that
the price term on the car was a material element of the contract and there was no meeting of
the minds on an essential element of the contract. Garth also argued that the settlement was
unconscionable based upon the ultimate division of assets and he only had a short time to
make a decision. He posited that he only had 20 minutes on the phone with his attorneys to
determine whether or not the settlement was in his best interests and, at the time, he did not
have any of the documentation to allow him to make an informed decision. Finally, Garth
argued that he was under duress at the time and the settlement was derived as a product
thereof. The trial court found that there was nothing before it to indicate that the agreement
was unconscionable or the product of duress. Rather, the trial court found that Garth had
simply changed his mind. It found that this was not a proper basis to set aside a settlement
agreement and, accordingly, enforced the agreement and entered final judgment for
dissolution of marriage.
¶ 15 On July 1, 2011, Garth filed a motion to amend final judgment for dissolution of
marriage to resolve all remaining issues and for entry of a final and appealable order. This
motion alleged, among other things, that the final judgment entered on June 7 did not
comport with the provisions of the parties’ March 23, 2011, oral agreement. Garth stated that
he was to receive all of his Cityplex bank accounts as his nonmarital property, and he was
to receive $25,000 from the sale of the Mercedes ML-320 motor vehicle as a contribution
toward attorney fees and costs. He specifically argued that at the May 20, 2011, hearing on
his petition for interim attorney fees, the court ordered that $35,000 be paid out of his
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Cityplex accounts. By paying for interim fees out of the Cityplex account, Garth argued that
he did not receive the assets he was entitled to per the March 23 oral agreement. Finally,
Garth asserted that there were “blank” spaces in the judgment for dissolution where a
minimum reserve price for the vehicle was to be listed; thus, the order was not final and
appealable pursuant to Illinois Supreme Court Rule 304 (eff. Feb. 26, 2010).
¶ 16 On August 18, 2011, a hearing was held on Garth’s motion, which was granted without
objection. The minimum reserve price for sale of the car was set at $25,000 and was agreed
to by both parties. Garth’s attorneys were to receive $25,000 from the net proceeds of the
sale for contribution to their fees, and any amount above and beyond that was to be the sole
property of Terry. The judgment was rendered final in all respects with “no just reason to
delay enforcement or appeal.”
¶ 17 This timely appeal followed.
¶ 18 ANALYSIS
¶ 19 I. Forfeiture
¶ 20 As an initial matter, Terry alleges that Garth has waived his contract formation and
coercion arguments by failing to raise them in the trial court. It is axiomatic that questions
not raised in the trial court are waived (forfeited) and may not be raised for the first time on
appeal. Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541, 550 (1983). It is required that
the points argued on appeal be commensurate with the issues presented at trial. In re Estate
of Leichtenberg, 7 Ill. 2d 545, 548-49 (1956).
¶ 21 At the trial court level, at both the April 29 and June 7 hearings, Garth argued that he
only had 20 minutes on the phone with his attorney to discuss the terms of the settlement. At
that time, he did not have a draft of the settlement or the numbers in front of him.
Specifically, Mr. Dunn stated at the June 7 hearing that “[b]ut then what happened after the
fact is Garth went back to his cell and literally was figuring out the terms of the settlement
agreement and came to the conclusion that it was an unconscionable agreement and he felt
like he was under duress when he made that agreement and so now he’s asking the court to
vacate that agreement and for this court to have a full trial on all the remaining issues.” Mr.
Dunn continued, stating that “there was one point I left out as to our motion to vacate that
day when we were in court and read it on the record, not all of the terms of the parties’
agreement were agreed upon that day which is evidence as a result of the inability of a final
judgment to be tendered to this court because we could not agree on – not necessarily the
major details but sufficient details in that there was not a total agreement of the parties.”
¶ 22 On appeal, Garth argues that the trial court abused its discretion in enforcing the oral
settlement agreement because there was no “meeting of the minds” as to an essential and
material element of the contract, and that there was also a “mutual mistake of fact” as to what
terms were actually agreed upon. Garth also argues that even if there was an agreement
reached that day, the contract is not binding as it was a product of coercion and duress, and
its terms were unconscionable.
¶ 23 We believe that these arguments are, in essence, the same. This court has held that
“[u]nless they are obvious from the record, the grounds for an objection must be specifically
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stated in order to preserve an issue for appeal.” In re Commitment of Hooker, 2012 IL App
(2d) 101007, ¶ 53. While Garth’s attorney did not specifically use the phrase “meeting of the
minds” in his argument and objection to the entry of final judgment of dissolution, it is
obvious that he did argue that an agreement had not been reached that day and, even if it had
been, it was unconscionable or derived as a product of his client’s duress. Thus, on the record
before us, we believe that Garth did properly preserve these issues on appeal.
¶ 24 II. Oral Settlement Agreement
¶ 25 The State of Illinois encourages the settlement of claims and, to that end, settlement
agreements may be oral. Kim v. Alvey, Inc., 322 Ill. App. 3d 657, 669 (2001). “When a party
seeks to vacate a property settlement incorporated into a judgment of dissolution of marriage,
all presumptions are in favor of the validity of the settlement. [Citation.] A settlement
agreement is not typically subject to appellate review because an agreed order ‘is a
recordation of the agreement between the parties and *** not a judicial determination of the
parties’ rights.’ [Citation.] However, ‘[a] settlement agreement can be set aside if it is shown
that the *** agreement is unconscionable.’ [Citation.]” In re Marriage of Bielawski, 328 Ill.
App. 3d 243, 251 (2002). The determination of whether a valid settlement 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–that is, unless an opposite
conclusion is clearly evident.” Webster v. Hartman, 309 Ill. App. 3d 459, 460 (1999).
¶ 26 It is Garth’s position that there is no oral settlement agreement to enforce because on
March 23, 2011, there was never a contract or agreement formed. He posits that there was
no requisite “meeting of the minds,” there existed a mutual mistake of fact in regard to the
attorney fees and the sale of the ML-320 Mercedes and that, due to his absence from the
hearing, he did not get his day in court. We disagree.
¶ 27 Prior to accepting the oral settlement agreement into the record, the trial court thoroughly
admonished Terry of her rights and responsibilities under such an agreement.
“THE COURT: Okay. As to what was stated, are you voluntarily agreeing to that?
In other words, has anyone forced you into that agreement that I just heard?
MRS. BAECKER: No.
THE COURT: Has anyone threatened you to make that agreement that we just heard?
MRS. BAECKER: No.
***
THE COURT: And you understand what you’re to do and what he’s to do under the
agreement?
MRS. BAECKER: Yes.
***
THE COURT: So you’re telling me today that you’re agreeing to this settlement and
you wish to be bound by this settlement? In other words, it’s a done deal.
MRS. BAECKER: Yes.”
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¶ 28 As a corollary, Terry’s counsel, Mr. Wakeman, requested that the court make the same
inquiries relative to Mr. Dunn, to ensure that he had gone through the terms of the settlement
with Garth. Mr. Dunn responded:
“MR. DUNN: Judge, I went through the terms of this agreement. Obviously he has
not seen the physical paperwork that Mr. Wakeman’s producing, but the actual terms of
this agreement, absolutely, I went through with Mr. Baecker, and he verbally agreed on
the phone.
I did not talk to him on Monday when I personally was present there about this,
because we did not have this agreement until yesterday night, but I did talk to him on the
phone. He was aware of all his assets, all of the potential debts, liabilities, everything in
this case. We went through what this agreement is, and he was fine with that.
THE COURT: And I’m just taking you at your word as a representative of the court
that you’ve talked with him and–
MR. DUNN: I have.
THE COURT: –and that he’s given you the green light to agree to this?
MR. DUNN: Yes, your honor.”
¶ 29 An attorney’s statement may bind the client to a settlement agreement when the client
later claims to have misunderstood the terms of the settlement (Sheffield Poly-Glaz, Inc. v.
Humboldt Glass Co., 42 Ill. App. 3d 865, 868 (1976)), particularly when the settlement is
made in open court or in the presence of the client. Szymkowski v. Szymkowski, 104 Ill. App.
3d 630 (1982). Mr. Dunn clearly had the authority to bind Garth to the terms of the
settlement and did so. Like the trial court, we find In re Marriage of Clarke, 194 Ill. App.
3d 248 (1990), illustrative.
¶ 30 In Clarke, both the mother, Rebecca Clarke, and father, Tino Antonacci, were
represented by counsel. At a pretrial conference on Tino’s petition to terminate joint custody
and request sole custody, Tino, his attorney and an attorney from the office of Rebecca’s
attorney met with the court in chambers. Id. at 251. Rebecca’s attorney withdrew her petition
for change of custody and sought increased visitation with the children. In the agreed order
that was entered, Tino was awarded sole custody of the three children and Rebecca was given
increased visitation. Id. At the hearing on Rebecca’s motion to vacate, her attorney explained
that he was not the usual attorney handling her case and was not familiar with her file. Id. He
had been instructed to withdraw Rebecca’s petition for change of custody and to seek
additional visitation. In an accompanying affidavit, however, he stated that he had not been
authorized to agree to the change of custody. Id. In finding insufficient grounds to vacate the
agreed order, this court found that while it was not an agreement reached in open court as in
Szymkowski, it was also not a purely private discussion between two attorneys. Id. at 252-53.
Rebecca’s attorney had been given instructions, authorized by Rebecca, to withdraw her
petition to change custody in her favor. She had conveyed her position and did not attend the
pretrial conference. Id. at 253. Therefore, this court held that even if there was a
misunderstanding as to the change from joint custody, it did not automatically negate her
attorney’s authority to enter the order that he did. Id.
¶ 31 We find that the facts before us here present a stronger case than those in Clarke for the
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proposition that Garth’s attorney had the authority to bind him to the settlement agreement.
Unlike in Clarke, the agreement in question in the instant case was read onto the record in
open court. Both parties were represented by counsel and fully admonished as to the terms
of the agreement and their respective responsibilities thereto. The record, as set out above,
contains many statements by Garth’s counsel that demonstrate that the agreement was
acceptable to Garth, that he wished to proceed, and that he knew he had the alternative of
proceeding to trial. Garth’s numerous references to his absence during the proceeding are
inconsequential. As the trial court rightfully pointed out, this trial was set and came as no
surprise. After the first day of trial on February 7, 2011, the trial court set the next date for
March 23. This gave Garth and his counsel well over a month to prepare a writ or similar
request, which would have allowed him to be transported from Dixon Correctional Center
to the circuit court of Tazewell County to be present for the hearing. It should be noted that
Garth was similarly absent for the first day of trial on February 7. At oral argument, Garth’s
counsel advised this court that it was Garth’s choice to be absent from the proceedings.
¶ 32 Moreover, Garth did not provide the court with any affidavit or evidence to refute the
apparent authority that Mr. Dunn had to settle on his behalf. Garth only stated in subsequent
pleadings that he “no longer believes that the March 23, 2011 agreement is in his best
interests or is an equitable distribution of the parties’ marital assets and debts.” This change
of heart has no bearing on our decision, as “[a] court should not set aside a property
settlement agreement merely because one party has second thoughts.” In re Marriage of
Steichen, 163 Ill. App. 3d 1074, 1079 (1987). Accordingly, we find that the trial court’s
finding that a valid settlement occurred on March 23, 2011, was not against the manifest
weight of the evidence and, therefore, the trial court properly denied Garth’s motion to
vacate.
¶ 33 II. Meeting of the Minds and Mutual Mistake of Fact
¶ 34 Having established that there was, in fact, an oral agreement reached, and that Garth’s
attorney had the requisite authority to bind him to that agreement, we will address Garth’s
next contention that there was no “meeting of the minds” or there existed a mutual mistake
of fact that would warrant setting aside the agreement.
¶ 35 Garth’s entire argument in this context focuses on the attorney fees that were to go to
Murphy & Dunn. The following is the pertinent excerpt from the March 23 proceedings:
“MR. WAKEMAN: There is also a 2009 Mercedes ML-320 automobile presently
titled in the name of Garth Baecker. That vehicle is to be immediately placed for sale and
sold. Initially, we’re going to allow Jim Boyd, who operates Court Street Park and Sell,
to attempt to sell that vehicle for a period of up to 21 days. From the sales proceeds, the
unpaid legal fees of Murphy & Dunn will be paid from the net sales proceeds, up to
$25,000. Any remaining next sales proceeds after payment of those attorney’s fees will
be the property of Terry Baecker free and clear of any interest of Garth.
If Mr. Boyd has been unsuccessful in selling the car within that 21 day period, then
we will attempt to list it, with some minimum agreed reserved price, that will attempt to
sell it through eBay at some mutually agreed price. Again, the balance of any additional
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net sales proceeds after the payment of Murphy & Dunn’s legal fees, capped at $25,000,
are to be the sole and separate property of Terry Baecker.
***
MR. DUNN: With regard to–I want to make sure we’re all on the same page with
regard to the sale of the Mercedes Benz. Any amount over the $25,000 that we’re owed,
we collect from Garth, but the first $25,000 would come to us as the payment of at least
something towards the attorney fees that we’re owed.
MR. WAKEMAN: Anything above the 25 goes to Terry.
MR. DUNN: Did I say Garth? The first $25,000 comes to us as satisfaction of our
outstanding attorney’s fees owed. Anything above that $25,000, we have to go after
Garth for. That’s his problem. I just want to be very clear on that.”
¶ 36 Contrary to what Garth would have us believe, there was a meeting of the minds at the
March 23 hearing, and his argument that the parties did not have an agreement on the issue
of how the fees would be paid and the source from which they would be paid is
disingenuous. There were no uncertain terms. The car would immediately be placed for sale
with Jim Boyd, and, in the event it could not be sold, it would be placed on eBay with a
mutually agreed upon minimum reserve price. The minimum reserve price was to ensure that
if an offer of $1 or a similarly nominal amount was made, the parties would have the
authority to reject it. There was even discussion at subsequent hearings as to the blue book
value of the car; it was somewhere in the range of $30,000 to $35,000. Furthermore, it is
clear from the transcript of the August 18 hearing that the provisions in draft agreement
crafted on June 7 inadvertently left blank the amount Garth was to receive from the sale. At
all times, the parties had clearly agreed that Garth’s attorneys would receive $25,000 from
the net proceeds of the sale and any remaining amount would go free and clear to Terry.
¶ 37 Garth’s counsel also argues that the draft of the final judgment submitted to the trial court
on the day of the final hearing had material terms left blank; thus, there could not have been
a meeting of the minds and similarly no contract. Those “material terms” were the minimum
reserve price of the car and the amount Murphy & Dunn was to receive from the proceeds
of the sale. First, there was never any dispute that Murphy & Dunn would get the first
$25,000 of the proceeds from the sale of the car. As the record indicates, all parties agreed
to this, and the court believed that they inadvertently left out the dollar figure. As for the
minimum reserve price, the oral agreement indicated that the parties would decide on a
mutually agreed-upon reserve price. The fact that it was left blank in the final judgment
entered on June 7 does not render the complete agreement null and void. See First National
Bank of Oak Lawn v. Minke, 99 Ill. App. 3d 10 (1981) (finding that a contract must be clear,
definite and complete in all of its material provisions to be enforceable, but lack of
nonessential details will not render the contract unenforceable). Perhaps more importantly,
Garth filed a motion to amend the June 7 order, requesting that the trial court modify the
order to fill in the blanks and reflect the specific terms of the March 23 oral agreement, i.e.,
that Garth was to receive $25,000 from the net proceeds of the sale of the Mercedes. This
motion was granted by the trial court, without objection, on August 18, 2011. Garth clearly
received what he bargained for–a definite price term on the sale of the vehicle.
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¶ 38 We also take note of the fact that it was Garth’s own uncooperative attitude that led to
the issue with the car in the first place. The Mercedes was titled in his name; his power of
attorney, Brad McCollum, was to handle the certificate of title so that Jim Boyd could list
the vehicle for sale on his lot. As evidenced by Terry’s subsequent motions regarding the sale
of the car and motion to compel the delivery of the car, both Brad McCollum and Garth
refused to sign the documentation necessary to facilitate the transfer and sale of the vehicle.
For Garth to turn around and argue to this court that the car has yet to be listed for sale is
duplicitous, as he was clearly the roadblock preventing the sale.
¶ 39 Notwithstanding the above analysis, we note that the issue regarding the Mercedes is now
moot, as the vehicle was sold subsequent to the filing of the parties’ appellate briefs. Garth’s
attorneys received $25,000 from the sale of the car as agreed upon, and the argument that this
issue reflected that there was no “meeting of the minds” in regard to the sale of the car is
moot.
¶ 40 III. Unconscionability and Duress
¶ 41 A marital settlement agreement is unconscionable if there is “an absence of a meaningful
choice on the part of one of the parties together with contract terms which are unreasonably
favorable to the other party.” (Internal quotation marks omitted.) In re Marriage of
Steadman, 283 Ill. App. 3d 703, 709 (1996) (quoting In re Marriage of Carlson, 101 Ill.
App. 3d 924, 930 (1981)). The fact that an agreement “merely favors one party over another
does not make it unconscionable.” (Internal quotation marks omitted.) In re Marriage of
Gorman, 284 Ill. App. 3d 171, 181 (1996) (quoting In re Marriage of Hamm-Smith, 261 Ill.
App. 3d 209, 220 (1994)). “To rise to the level of being unconscionable, the settlement must
be improvident, totally one-sided or oppressive.” Gorman, 284 Ill. App. 3d at 182. Duress
may make an agreement between spouses unconscionable. In re Marriage of Richardson,
237 Ill. App. 3d 1067, 1082 (1992). “Acts or threats must be legally or morally wrongful to
constitute duress [citation], and duress is measured by an objective test, rather than a
subjective one [citation].” In re Marriage of Tabassum, 377 Ill. App. 3d 761, 775 (2007).
“The person asserting duress has the burden of proving, by clear and convincing evidence,
that he was bereft of the quality of mind essential to the making of the contract.” In re
Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 215 (1994). We review a trial court’s
finding of duress under a manifest weight of the evidence standard. Wermers Floorcovering,
Inc. v. Santanna Natural Gas Corp., 342 Ill. App. 3d 222, 224 (2003).
¶ 42 Garth contends that this agreement was unconscionable for a myriad of reasons, most
notably that he only had 20 minutes on the phone with his attorney to make a decision, that
he was not present for the oral settlement agreement, and that he later decided the terms of
said agreement did not represent a fair and equitable division of the parties’ marital assets.
In support of that contention, Garth cites to In re Marriage of Moran, 136 Ill. App. 3d 331
(1985), and In re Marriage of Perry, 96 Ill. App. 3d 370 (1981).
¶ 43 In Moran, the appellate court vacated the property settlement agreement incorporated into
the dissolution decree “because of the misrepresentation, duress and coercion practiced upon
Marianne.” Moran, 136 Ill. App. 3d at 336. The appellant-wife, Marianne, secured the legal
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services of attorney Rosenberg. Marianne testified that she showed up at Rosenberg’s office
for a meeting and was shocked to see her husband in the waiting room. Id. at 333. At that
meeting, Rosenberg presented Marianne with a settlement agreement that he told her to sign,
though he had not previously reviewed its terms with her or even discussed with Marianne
the assets and liabilities of the parties’ marital estate. Furthermore, the record indicated that
the trial court misled and coerced Marianne into signing the marital settlement agreement by
advising her that she would not be entitled to more than five years of maintenance, and that
the agreement was “the best she could do.” Id. at 338-39. Upon review, this court found that
the record established that Marianne had no input into the drafting of the settlement
agreement prior to the time it was presented to her on July 12, 1983, and that she continually
objected to its contents. Id. at 337. Her attorney responded to her objections by saying that
“ ‘she got a good deal’ ” and that John’s (her husband’s) attorney was one of the best trial
lawyers. Id.
¶ 44 We believe Moran is so factually distinguishable from the case at bar as to render it
inapposite. First, the settlement agreement Marianne was coerced into signing left her with
only one significant asset–the marital home. As a result, she was saddled with the substantial
mortgage payments. Marianne had been a homemaker throughout the duration of the parties’
27-year marriage. While she did receive a maintenance award, it was temporary in nature and
called for a reduction in monthly payments the last two years. By contrast, John was a
cardiovascular surgeon with an income of $191,000 in the year the parties divorced. He kept
all the remaining assets, including a condo in Chicago, property in North Dakota and
Minnesota, and all of his retirement and pension funds. The economic disparity alone was
enough to render that property settlement agreement void, let alone the fact that Marianne’s
own attorney and the trial court misled her into thinking it was the best deal for her.
¶ 45 The type of economic disparity and weakened bargaining power simply does not exist
in this case. Garth’s attorneys did not force him into settling his case. According to Mr.
Dunn, he indicated to Garth that he did, in fact, have a choice as to whether to settle the case
or proceed to day two of trial. Garth’s attorneys also indicated to Garth at the time that they
believed the settlement agreement represented a reasonable division of the parties’ assets,
with approximately 52% to Terry and 48% to Garth. Based on the facts of this case, we
would agree with Garth’s counsel–he probably would not get a better day in court. But, note
that unlike in Moran, the trial court did not once mention Garth’s likelihood of loss in an
attempt to force him into settling. In fact, the trial court carefully and methodically ensured
that it was the parties’ intent to settle all outstanding issues via agreement and that Garth’s
attorney had his express authority to do so.
¶ 46 Later, Garth’s attorney argued that “the result of that agreement, when you take into
consideration the fact that anything Garth is awarded, that’s collectible, Terry will collect,
is literally 92% in Terry’s favor and 8% in Garth’s favor of the overall distribution of marital
assets he has.” Frankly, this argument defies logic. If we were to follow that stream of
consciousness, the end result would be that Terry would be paying herself on the judgment
she won against Garth. The fact of the matter is, Terry’s personal injury judgment against
Garth, for obvious reasons, is not part of the marital estate. However, by shifting more of the
marital assets to Garth to offset the judgments against him, we would effectively be shifting
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the burden to Terry to pay both of those judgments. The terms of the oral settlement
agreement were not unconscionable.
¶ 47 We find Garth’s recital of the “horrible” facts against him equally unpersuasive. There
is nothing in the record to indicate that Garth was coerced or under duress at the time the
agreement was read into the record. The only evidence he has given to support that theory
is the fact he is in prison and he no longer believes the terms of the settlement agreement are
in his best interests. In the context of duress, it has been held that stress alone does not rise
to the level of duress, as stress is common. In re Marriage of Flynn, 232 Ill. App. 3d 394,
401 (1992). Furthermore, Garth has not pointed to a single instance of wrongdoing by Terry
or her counsel that would rise to the level of coercion or duress. Indeed, in order for a duress
claim to pass muster here, Terry must have committed the illegal or immoral act. See
Thompson v. Thompson, 91 Ill. App. 3d 943, 945-46 (1980) (holding there were no
allegations of wrongdoing attributable to the opposing party and therefore there was no
coercion).
¶ 48 Accordingly, we find that it was not against the manifest weight of the evidence for the
trial court to enforce the oral settlement agreement as it was read onto the record at the
March 23, 2011, hearing. To the contrary, we find Garth’s arguments lack the slightest
scintilla of merit.
¶ 49 CONCLUSION
¶ 50 For the foregoing reasons, the judgment of the circuit court of Tazewell County is
affirmed.
¶ 51 Affirmed.
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