In re Marriage of Lewin

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Appellate Court Date: 2018.08.21
14:12:16 -05'00'
In re Marriage of Lewin, 2018 IL App (3d) 170175Appellate Court In re MARRIAGE OF FANNY S. LEWIN, n/k/a LEVITT, Petitioner-
Caption Appellant, and PIERRE H. LEWIN, Respondent-Appellee.
District & No. Third District
Docket No. 3-17-0175
Filed May 30, 2018
Decision Under Appeal from the Circuit Court of Peoria County, No. 14-D-283; the
Review Hon. Kim Lee Kelley, Judge, presiding.
Judgment Affirmed.
Counsel on Jeffrey Alan Ryva, of Quinn, Johnston, Henderson, Pretorius &
Appeal Cerulo, of Peoria, for appellant.
Mark D. Walton, of Miller, Hall & Triggs, LLC, of Peoria, for
appellee.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Presiding Justice Carter and Justice Holdridge concurred in the
judgment and opinion.
OPINION
¶1 Petitioner Fanny Lewin, n/k/a Levitt, filed a motion to enforce or clarify the marital
settlement agreement she entered with respondent Pierre Lewin, which was incorporated in the
judgment of dissolution of their marriage. Pierre moved to dismiss, which the trial court
granted. Fanny appealed. We affirm.
¶2 FACTS
¶3 Petitioner Fanny Lewin, n/k/a Levitt, and respondent Pierre Lewin were married in July
1997 in Las Vegas, Nevada. They permanently moved to the United States from France in
1998, so Pierre could pursue business opportunities. In 2000 and again in 2004, Pierre was
terminated from his employment and the couple faced having to move back to France. In the
summer of 2004, a French business colleague, Patrick Peronnet, suggested he and Pierre start a
business in Illinois. One condition for the partnership was that Pierre and Fanny execute a
postmarital agreement. Patrick sought the agreement because he did not want Fanny involved
in the business or to become his business partner. Pierre and Fanny believed the postmarital
agreement would protect Fanny and the couple’s children from creditors should the new
business venture fail. In March 2005, the parties signed a postmarital agreement. The
agreement provided, in pertinent part, that Fanny would receive the marital home, her vehicle
and the savings account in exchange for waiving maintenance. Pierre would receive the
business interests. At the time the agreement was signed, neither Fanny nor Pierre anticipated a
divorce.
¶4 In May 2014, Fanny filed for dissolution of the marriage. The parties executed a marital
settlement agreement (MSA), which provides, in pertinent part:
“11. Respondent shall be allowed to claim for Federal and State Income Tax
purposes for 2016 all allowable deductions related to the properties on Brookforest and
St. Charles, including the real estate taxes and deducible interest.
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17. Petitioner shall have as and for her own, free and clear of any claim of
Respondent the former marital residence at 3100 S. St. Charles Place, Peoria, Illinois
and the residence at 908 W. Brookforest, Peoria, Illinois, free and clear of any claim of
Respondent. Petitioner shall be responsible for payment of 50% of the line of credit
obtained to pay attorney fees in these proceedings. The $50,000 shall be deducted from
the $2,000,000.00 settlement resulting in the $1,950,000.00 settlement. Respondent
shall be responsible for payment of the entire $100,000.00 line of credit and shall hold
Petitioner harmless therefrom.
Respondent shall have the right to live in and occupy the Brookforest residence
until such time as he advises the Petitioner that he will move to another location or until
Petitioner decides to sell the residence at which time she shall provide him with written
notice and allow him 90 days to move from the residence.
In the event Respondent decides to move from the Brookforest residence, he shall
provide Petitioner with his Notice of Intent to Move no less than 30 days before the
move.
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Respondent shall be responsible for payment of all utilities during his period of
occupancy of the Brookforest residence. In all other respects, Petitioner shall be
responsible for all expenses, debts and obligations arising out of ownership of both
properties, including the second installment of the 2015 real estate taxes payable in
2016 and all subsequent years of real estate taxes, home owner’s insurance, together
with cost of sale, including any closing costs and realtor’s commissions.”
¶5 A judgment of dissolution was entered on August 19, 2016, which incorporated the MSA.
The judgment of dissolution included an express integration clause. In November 2016, Fanny
filed a motion to enforce or clarify the MSA, arguing that it did not assign the mortgage
payments to her and that it was her understanding Pierre would remain responsible for paying
the mortgage because he had always made the payments. Fanny requested the court determine
that Pierre was responsible for the mortgage on the St. Charles Place residence and require him
to reimburse her for mortgage payments she had made and to hold her harmless.
¶6 Pierre moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Civil
Code) (735 ILCS 5/2-615 (West 2016)), alleging Fanny’s motion was untimely and failed to
state a cause of action. The motion was granted in part and denied in part. The trial court found
Fanny’s motion requested the clarification or interpretation, not the modification, of the MSA,
and rejected Pierre’s untimeliness argument. The trial court reviewed the agreement,
concluded the MSA was not ambiguous, and refused to apply the provisional admission
approach to interpret the agreement. The court granted dismissal under section 2-619(a)(9)
(735 ILCS 5/2-619(a)(9) (West 2016)) of the Civil Code. Fanny timely appealed.
¶7 ANALYSIS
¶8 Fanny presents several arguments that dismissal was improper, including the trial court
erred in converting Pierre’s section 2-615 motion to dismiss into a section 2-619 motion to
dismiss, failed to apply the provisional admission approach to interpret the MSA, did not
consider the incompleteness and mistake exceptions to the parol evidence rule, and improperly
found the MSA was unambiguous.
¶9 A section 2-615 motion to dismiss alleges the complaint fails to state a claim on which
relief may be granted. 735 ILCS 5/2-615 (West 2016). The motion presents the question of
whether the complaint’s allegations, taken as true and viewed in a light most favorable to the
nonmovant, are sufficient to state a cause of action on which relief may be granted. Turner v.
Memorial Medical Center, 233 Ill. 2d 494, 499 (2009). A section 2-619(a)(9) motion accepts
the legal sufficiency of the complaint but alleges that plaintiff’s claim is barred by other
affirmative matter that avoids or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2016). “An
‘affirmative matter’ is something in the nature of a defense that negates the cause of action
completely.” Martinez v. Cook County Sheriff’s Office, 2017 IL App (3d) 160514, ¶ 15. Our
review of a dismissal under either section 2-615 or section 2-619 is de novo. Morrow v.
Pappas, 2017 IL App (3d) 160393, ¶ 42 (section 2-615); In re Marriage of Morreale, 351 Ill.
App. 3d 238, 240 (2004) (section 2-619).
¶ 10 As a first matter, we address Fanny’s argument that the trial court improperly converted
Pierre’s section 2-615 motion to dismiss to a section 2-619 motion, precluding her from
presenting evidence in support of her motion to enforce or clarify. She submits the trial court’s
conversion shifted the focus on Pierre’s motion to dismiss from a legal inquiry to a fact-based
dispute and argument on the merits. According to Fanny, she was never given an opportunity
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to submit any evidence to show an ambiguity exists in the MSA, which prejudiced her and
resulted in the improper dismissal of her motion to enforce or clarify.
¶ 11 The mislabeling of a motion to dismiss is not always fatal and the court will consider the
motion where no prejudice resulted from the improper designation. Wallace v. Smyth, 203 Ill.
2d 441, 447 (2002). However, where the mislabeling prejudices the nonmoving party, the
court’s grant of the dismissal must be reversed. Premier Electrical Construction Co. v.
La Salle National Bank, 115 Ill. App. 3d 638, 642 (1983).
¶ 12 When ruling on a section 2-615 motion to dismiss, a court may not consider affidavits, the
results of discovery, or other documentary evidence that was not included with the pleadings as
exhibits or other supporting evidence. Hartmann Realtors v. Biffar, 2014 IL App (5th) 130543,
¶ 14. The court may not consider evidence outside the pleading when ruling on the motion.
Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 654 (1994). In contrast, a section 2-619 motion
asserts defects or defenses outside the pleadings that defeat the claims. Solaia Technology,
LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). The court must determine
whether the supporting materials establish an affirmative matter defeating the petitioner’s
claim. Turner v. 1212 S. Michigan Partnership, 355 Ill. App. 3d 885, 892 (2005) (citing
Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 343 (1994)). In a
ruling on a section 2-615 motion to dismiss, a court may not rely on facts outside the
complaint. Visvardis v. Eric P. Ferleger, P.C., 375 Ill. App. 3d 719, 724 (2007).
¶ 13 An integration clause is designed to bind the parties to the terms of their written agreement.
Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 464 (1999) (citing Armstrong Paint
& Varnish Works v. Continental Can Co., 301 Ill. 102, 106 (1921)). By using an integration
clause in a contract, the parties are “explicitly manifesting their intention to protect themselves
against misinterpretations which might arise from extrinsic evidence.” Air Safety, 185 Ill. 2d at
464. Where an integration clause is included in an agreement, the four corners rule applies and
extrinsic evidence is not admissible to interpret the agreement. Eichengreen v. Rollins, Inc.,
325 Ill. App. 3d 517, 522 (2001). In contrast, the provisional admissibility approach allows the
use of extrinsic evidence to aid in interpreting an agreement that is otherwise unambiguous on
its face. Ahsan v. Eagle, Inc., 287 Ill. App. 3d 788, 790 (1997). Under that approach, the court
first provisionally examines the extrinsic evidence to determine whether there is an ambiguity.
Id. The provisional admission approach does not apply to contracts with an integration clause.
Air Safety, 185 Ill. 2d at 464.
¶ 14 Pierre argues that the provisional admission approach is not applicable because the parties’
MSA was an integrated statement of settlement of the parties’ dissolution issues. The judgment
of dissolution, which incorporated the MSA and included an express integration clause, was
attached to Pierre’s motion to dismiss. The judgment provides that the MSA settles “all
questions of property rights, claims against each other, rights of maintenance and all other
marital rights arising out of their marriage to each other.” The MSA was a fully integrated
agreement and intended to be the entire agreement between the parties. Insertion of the
integrated clause in the dissolution judgment reflects Fanny and Pierre’s intent to bind
themselves to their written agreement. The integration clause precluded the use of the
provisional admissibility approach, and extrinsic evidence was not admissible to support
Fanny’s claim that the MSA was ambiguous regarding the mortgage payment. Because Fanny
could not present any extrinsic evidence to support her interpretation of the MSA, she could
not have been prejudiced by the trial court’s treatment of the section 2-615 motion as a section
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2-619(a)(9) motion. We find the trial court did not err when it granted Pierre’s motion to
dismiss.
¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.
¶ 17 Affirmed.
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