In re Marriage of Epting

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Marriage of Epting, 2012 IL App (1st) 113727Appellate Court In re MARRIAGE OF BRENDA C. EPTING, Petitioner-Appellee, and
Caption PEDRO A. EPTING, Respondent-Appellant.
District & No. First District, Sixth Division
Docket Nos. 1-11-3727, 1-12-0068 cons.
Filed December 7, 2012
Rehearing denied December 28, 2012
Held The trial court had subject matter jurisdiction in a marriage dissolution
(Note: This syllabus proceeding because its factual finding of residency was not against the
constitutes no part of manifest weight of the evidence, and the trial court did not abuse its
the opinion of the court discretion in denying respondent’s motion to reconsider the prove-up
but has been prepared based on his claims that he lacked a “total understanding” of the
by the Reporter of settlement agreement and that he was coerced into signing it, especially
Decisions for the when respondent raised issues not raised in his motion to vacate without
convenience of the explaining why those issues were not raised earlier and he failed to show
reader.)
how the trial court misapplied the law.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-D-01839; the
Review Hon. Jeanne Cleveland Bernstein, Judge, presiding.
Judgment Affirmed.
Counsel on Paul L. Feinstein, of Paul L. Feinstein, Ltd., of Chicago, for appellant.
Appeal
Joseph G. Phelps, of Rinella & Rinella, Ltd., of Chicago, for appellee.
Panel JUSTICE R. GORDON delivered the judgment of the court, with
opinion.
Presiding Justice Lampkin and Justice Hall concurred in the judgment
and opinion.
OPINION
¶1 On March 3, 2009, petitioner Brenda Epting filed a petition for dissolution of marriage
in the circuit court of Cook County. The Eptings’ two children were both emancipated. On
July 13, 2011, the parties entered into an oral marital settlement agreement which was
included in the prove-up for the dissolution. That same day, the parties reduced the oral
marital settlement agreement to writing and signed it. The written settlement agreement
provided that respondent Pedro Epting would pay $3,967 per month for maintenance
payments, based in part on Pedro’s annual income of $119,678 and Brenda’s annual income
of $12,840. The written settlement agreement included a 50% income-sharing plan,
suggested by the trial court during a pretrial conference.
¶2 A month after signing the written settlement agreement, Pedro filed a motion on August
11, 2011, to “vacate the prove-up and other relief,” which the trial court denied. On October
11, 2011, the trial court entered a judgment dissolving the parties’ marriage and
incorporating the written marital settlement agreement. The dissolution judgment was signed
by each party’s attorney. Pedro’s attorney then filed a motion to withdraw, and on October
27, 2011, Pedro filed a pro se motion to reconsider the denial of Pedro’s previous motion to
vacate the prove-up. The trial court denied Pedro’s pro se motion to reconsider on November
17, 2011, after holding a hearing on the motion.
¶3 Pedro now appeals, claiming: (1) that the trial court lacked subject matter jurisdiction to
dissolve the marriage and (2) that even if the trial court had subject matter jurisdiction, it
erred in denying his motion to reconsider. For the following reasons, we affirm.
¶4 BACKGROUND
¶5 I. Pleadings
¶6 Brenda filed her petition for dissolution of marriage on March 3, 2009. In her petition,
she alleges that she and Pedro resided in Berkeley, Illinois, at the time she filed the petition
and that they had both continuously resided in the State of Illinois for at least 90 days
preceding the filing of the petition. She alleges that there were two children born to the
-2-
2
marriage and none have been adopted, that both children have been emancipated, and that
she is not presently pregnant.
¶7 Pedro filed a pro se appearance on April 8, 2009, but he did not file an answer. On
November 19, 2009, Pedro’s first attorney1 filed an appearance on behalf of Pedro, but he
also did not file an answer on Pedro’s behalf.
¶8 II. Marital Settlement Agreement and Testimony
¶9 On April 4, 2011, this case was set for a trial on July 13, 2011. On the trial date, the trial
court conducted a pretrial conference and made a recommendation for maintenance based
on a model income-sharing plan, which equalized the parties’ annual incomes by calculating
each party’s tax liabilities, medical insurance premiums, the tax benefits to Pedro resulting
from his maintenance payments, and the tax liabilities to Brenda resulting from the
maintenance payments she received. Later that same day, the trial court held an oral prove-up
hearing in which both parties testified and agreed to the terms of the marital settlement
agreement.
¶ 10 At the prove-up hearing, Brenda testified that the parties were married in Maywood,
Illinois, that the marriage license was registered in Cook County, and that Brenda and Pedro
had been residents of Cook County for at least 90 days prior to the date of the hearing for
dissolution. Brenda and Pedro then agreed to an oral settlement agreement, requiring Pedro
to pay Brenda $3,976 per month in maintenance payments. The payments were based on
$2,820 for permanent maintenance with a 50% income-sharing plan designed to place the
parties “in the same position as a couple.” The income-sharing plan was based on Pedro’s
annual income of $119,678 and Brenda’s income of $12,840. If the parties’ financial picture
changed, the agreement provided that the income-sharing plan would be adjusted
accordingly.
¶ 11 During the prove-up, Brenda acknowledged in Pedro’s presence that the amount she
receives from Pedro would decrease if her income increased, and that she would cease
receiving payments from Pedro if she were to enter into a continuing, conjugal relationship
with another adult or if she or Pedro passed away. During the prove-up, Brenda
acknowledged that she understood the oral marital settlement agreement, and entered into
it freely and voluntarily, and agreed to be bound by the terms of the agreement.
¶ 12 Pedro testified that he heard “the agreement that was stated by Brenda’s attorney” and
that he understood the terms of the agreement. Pedro testified as follows:
“Q. And has anyone forced or coerced you into agreeing to this settlement today?
1
Over the course of the proceedings, Pedro had three attorneys. Pedro hired his first attorney
after filing his pro se appearance, and his first attorney withdrew after the prove-up hearing. Pedro’s
second attorney filed an appearance after the prove-up hearing and filed a motion to vacate the
prove-up on Pedro’s behalf. After the trial court denied the motion to vacate the prove-up, Pedro’s
second attorney withdrew. Pedro then filed a pro se motion to reconsider the denial of the motion
to vacate. On this appeal, Pedro is represented by his third attorney.
-3-
3
A. No.
Q. And are you doing this freely and voluntarily?
A. Kind of, sort of, yeah.
Q. Well, you can’t say kind of, sort of. Because if you aren’t doing it freely and
voluntarily, that means–
A. Yes.
Q. –someone has forced you to do it.
A. Well, I did agree to the terms, yes.
Q. So you’re doing it freely and voluntarily?
A. Yes.”
¶ 13 Following the parties’ testimony, the trial court found that the trial court had both
personal and subject matter jurisdiction over the parties, that the residency requirement had
been satisfied, that the grounds of irreconcilable differences had been satisfied, and that all
other statutory requirements had been met. Brenda’s attorney agreed to draft the judgment
for dissolution of the marriage, and that same day, the parties signed a written settlement
agreement, which was to be incorporated into the judgment for dissolution of the marriage.
¶ 14 III. Motions
¶ 15 Pedro’s first attorney withdrew as counsel on August 8, 2011. On August 11, 2011, four
days after Pedro’s first maintenance payment to Brenda was due, Pedro obtained new
counsel, who filed a motion to “vacate the prove-up and other relief.” In the motion, Pedro
alleges that the financial calculations used during the prove-up were incomplete and
inaccurate, and that the disposition of the property was based upon these incomplete and
inaccurate calculations. However, Pedro’s allegations did not show how the financial
calculations were incomplete and inaccurate. The trial court entered an order setting a
hearing date to hear the motion and to present the written judgment for dissolution of
marriage and any petitions for fees.
¶ 16 During the motion hearing on October 11, 2011, the following discussion was had on the
record:
“THE COURT: Do you understand that if I vacate [the prove-up] you are on trial
now? Do you understand that?
PEDRO’S ATTORNEY: Yes, absolutely.
THE COURT: You have your party here, your case is here.
PEDRO’S ATTORNEY: Yes. Absolutely. We are in the process of hopefully settling
the case.
THE COURT: There’s no hopefully. I mean now. You are on trial. Do you still want
to go ahead?
PEDRO’S ATTORNEY: Your Honor, we would like to talk with regard to the
settlement.
-4-
4
THE COURT: You know what happened the last time your client backed out of it?
We went to trial, and all of a sudden miraculously then he went back to the agreement.
***
THE COURT: Motion to vacate is denied. We are done here.
PEDRO’S ATTORNEY: Your Honor, I think we should be given the chance for oral
arguments prior to–
THE COURT: Really? You haven’t read my standing orders then. Your motion to
vacate, I read it. I heard it was being objected to. I am intimately familiar with this case.
I am not going to put up with the shenanigans any more. We are done here. Take it to
post-decree or take it to the Appellate Court. You are done in front of me.
PEDRO’S ATTORNEY: Your Honor, if you–
THE COURT: Part of it you don’t understand?
PEDRO’S ATTORNEY: Your Honor, if you were to look over the fin [sic] plans
with regard to the–
THE COURT: I don’t need to look over them. If you were properly prepared when
you came to trial the last time, and you step into the shoes, you should have had them
then, or maybe you did, I don’t know.
PEDRO’S ATTORNEY: Your Honor, with all due respect, there was a different
attorney–
THE COURT: Too bad. Goodbye. Thank you. Thank you.
***
PEDRO’S ATTORNEY: [Brenda’s] [c]ounsel and I are actually in agreement with
regards to a new fin [sic] plan that actually has the correct numbers in it.
THE COURT: You can say anything you like after I have already ruled. I don’t know.
If [Brenda’s] counsel wants to do some kind of modification with you, then that is what
he will do, but it will not be with my participation.”
That same day, the parties and their attorneys signed a written stipulation to hear the matter
as an uncontested case, and the trial court entered a judgment dissolving the parties’
marriage, which incorporated the written settlement agreement. Pedro’s second attorney then
filed a motion to withdraw from the case.
¶ 17 Over a month later, Pedro, pro se, then filed his own motion to reconsider the trial court’s
denial of his prior motion to vacate the prove-up, claiming that he did not have a “total
understanding” of the marital settlement agreement when he agreed to it, and that he acted
pursuant to his attorney’s advice and felt “threatened by repercussions of not agreeing to the
prove up and then not signing the [marital settlement agreement].” Pedro further claimed that
his attorney told him that the trial court had stated that it would rule in Brenda’s favor if the
matter went to trial and that Pedro had no other option but to sign the marital settlement
agreement. Pedro further claimed that neither he nor his attorney understood that his
retirement pension was not part of the monthly payment of $3,976; that the parties met for
less than 20 minutes with the trial judge, who ignored the “relevant factors” presented by the
-5-
5
parties; that, when Pedro questioned the validity of the figures, his attorney told him that the
trial judge suggested that he file for bankruptcy; that the marital home had negative equity;
and that, under the marital settlement agreement, Pedro was solely responsible for all “losses,
liabilities, and marital debt.”
¶ 18 Although the trial court held a hearing on the motion, the appellate record contains
neither a transcript of the hearing nor a bystander’s report. In a written order denying Pedro’s
motion to reconsider, the trial court found that the pro se motion raised issues not raised in
the prior motion to vacate and violated Illinois Supreme Court Rule 274 (eff. Jan. 1, 2006),
which prohibits the filing of multiple postjudgment motions.
¶ 19 This appeal followed.
¶ 20 ANALYSIS
¶ 21 On appeal, Pedro first claims that Brenda did not prove that the parties satisfied the
residency requirement of the Illinois Marriage and Dissolution of Marriage Act (the Act)
(750 ILCS 5/401(a) (West 2008)), and therefore the trial court’s judgment must be vacated
because the trial court lacked subject matter jurisdiction. In the alternative, Pedro also argues
that even if the trial court had subject matter jurisdiction, it improperly denied his motion to
reconsider the vacation of the marital settlement agreement, because the agreement was
unconscionable and he was coerced into signing it.
¶ 22 I. Standard of Review
¶ 23 On review, we have two issues before us, and two separate standards of review. For the
first issue, we will reverse a trial court’s finding of residency only if it is against the manifest
weight of the evidence. Rosenshine v. Rosenshine, 60 Ill. App. 3d 514, 517 (1978) (a trial
court’s finding of residency will not be disturbed unless it is against the manifest weight of
the evidence). “A judgment is against the manifest weight of the evidence only when an
opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not
based on evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995).
¶ 24 Our standard of review is different for the second issue: whether the trial court properly
denied Pedro’s motion to reconsider. An appellate court will not reverse a trial court’s
decision to grant or deny a motion to reconsider unless there was an abuse of discretion.
General Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1078 (2007) (hereinafter
GMAC). “An abuse of discretion occurs when no reasonable person would take the view
adopted by the court.” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801 (2002)
(citing In re Marriage of Blunda, 299 Ill. App. 3d 855, 865 (1998)). Although the two
standards are different, they are both highly deferential standards of review.
¶ 25 II. Residency Requirement
¶ 26 Pedro argues first on this appeal that the trial court lacked subject matter jurisdiction,
pursuant to the Act, to dissolve the parties’ marriage. Pedro claims that Brenda provided no
proof that either party was an Illinois resident at the time the action was commenced. The
-6-
6
Act states that Illinois courts may “enter a judgment of dissolution of marriage if at the time
the action was commenced one of the spouses was a resident of this State or was stationed
in this State while a member of the armed services, and the residence or military presence
had been maintained for 90 days next preceding the commencement of the action or the
making of the finding.” 750 ILCS 5/401(a) (West 2008). Pedro argues that Brenda’s
testimony alone was not sufficient to establish the Act’s residency requirement.
¶ 27 At no point during the dissolution proceeding did Pedro argue that the trial court lacked
subject matter jurisdiction. Pedro did not file a pro se answer, nor did his first attorney file
an answer on Pedro’s behalf. Pedro did not testify in the prove-up hearing that the trial court
lacked subject matter jurisdiction or that the parties had not satisfied the residency
requirement, nor did he challenge subject matter jurisdiction in either of his motions.
Generally, issues concerning an alleged error not raised in the trial court are forfeited and
may not be raised for the first time on appeal. Lemke v. Kenilworth Insurance Co., 109 Ill.
2d 350, 355 (1985).
¶ 28 However, Pedro raises a subject matter jurisdiction issue based on the residency
requirement of the Act. In re Marriage of Passiales, 144 Ill. App. 3d 629, 634 (1986)
(“residence in a divorce case is necessary to confer subject matter jurisdiction on the court”).
Subject matter jurisdiction challenges fall under an exception to the general rule about issues
raised for the first time on appeal, and a judgment entered by a court that lacked subject
matter jurisdiction is void and may be attacked at any time. In re Marriage of Chrobak, 349
Ill. App. 3d 894, 897 (2004). If subject matter jurisdiction is lacking, it cannot be conveyed
by stipulation, consent, or waiver. Chrobak, 349 Ill. App. 3d at 897. We must therefore
address the merits of Pedro’s subject matter jurisdiction claim.
¶ 29 By arguing that Brenda presented absolutely no proof that either party was an Illinois
resident at the time the action was commenced, and that she “merely testified” to her
residency, Pedro appears to be arguing that the trial court’s factual finding, that the parties
resided in Illinois, was against the manifest weight of the evidence. Passiales, 144 Ill. App.
3d at 634-35 (a trial court’s factual finding of residence will not be disturbed unless it is
against the manifest weight of the evidence). Although Pedro argues that Brenda failed to
prove that she satisfied the residency requirement of the Act, he does not dispute that the
parties were residents of Illinois for 90 days prior to the filing of the petition for dissolution
of marriage. In addition, he has not offered any evidence that the parties were residents of
any other state for the 90 days prior to the filing of the petition or that either of them was not
a resident of Illinois. Pedro’s argument is simply that Brenda did nothing more than allege
in her verified petition and testify at the prove-up hearing that she and Pedro were residents
of Illinois for the 90 days prior to the filing of the petition. Pedro claims that, without
additional evidence, Brenda failed to prove that she or Pedro satisfied the Act’s residency
requirement.
¶ 30 This argument is not persuasive. First, when Pedro failed to file an answer to the petition,
he not only failed to deny Brenda’s allegation that the parties had been residents of Illinois
for 90 days, but he also admitted the allegation. Roth v. Roth, 45 Ill. 2d 19, 23 (1970); Hecht
v. Hecht, 49 Ill. App. 3d 334, 338-39 (1977). In Roth, our Illinois Supreme Court held that
“[a] purpose of pleading is to develop the issues to be determined. A failure to respond to an
-7-
7
adversary pleading may constitute an admission of all the facts well pleaded by the adversary
and admissions thus drawn from a failure to plead may be considered as evidence.” Roth, 45
Ill. 2d at 23. See also Hecht, 49 Ill. App. 3d at 338-39 (holding that where the allegations of
a complaint are not denied, they stand admitted). Thus, Pedro’s failure to answer constitutes
an admission of the residency requirement.
¶ 31 Even if Pedro had denied Brenda’s residency allegation, Pedro’s claim that there was no
evidence in the record to support a finding of residency is not persuasive. In Kijowski v.
Kijowski, this court examined whether the trial court had jurisdiction to enter a divorce
decree, despite the petitioner’s failing to allege in her petition that the parties satisfied the
residency requirement. Kijowski v. Kijowski, 36 Ill. App. 2d 94, 96 (1962). We held that the
failure to allege residency was not fatal, so long as the record disclosed that residency
actually existed. Kijowski, 36 Ill. App. 2d at 96. In Kijowski, the record revealed “undisputed
testimony by [the petitioner]” concerning the parties’ residence prior to the filing of the
petition for dissolution of marriage. Kijowski, 36 Ill. App. 2d at 96. Relying solely on the
petitioner’s undisputed testimony, this court found that the record contained sufficient
evidence of residency. Kijowski, 36 Ill. App. 2d at 96. Similarly, in the case at bar, Brenda’s
testimony was undisputed and was sufficient evidence of residency. Therefore, because
Pedro admitted Brenda’s residency allegation by failing to file an answer, and because he did
not dispute her testimony, we cannot say that the trial court’s factual finding of residency was
against the manifest weight of the evidence. Thus, the trial court had subject matter
jurisdiction over the case, and we have subject matter jurisdiction to hear this appeal.
¶ 32 III. Motion to Reconsider
¶ 33 Next, Pedro argues that the trial court improperly denied his pro se motion to reconsider,
arguing that the agreement was unconscionable and he was coerced into signing it. In
response, Brenda argues that we must dismiss the appeal or summarily affirm the trial court’s
decision because Pedro did not prepare a complete record, as required by Illinois Supreme
Court Rule 323. Ill. S. Ct. R. 323 (eff. Dec. 13, 2005). As noted, our standard of review with
respect to a motion to reconsider is whether the trial court abused its discretion. GMAC, 374
Ill. App. 3d at 1078.
¶ 34 A. Incomplete Record
¶ 35 Illinois Supreme Court Rule 323(a) provides that “[t]he report of proceedings shall
include all evidence pertinent to the issues on appeal.” Ill. S. Ct. R. 323(a) (eff. Dec. 13,
2005). Rule 323(c) provides that “[i]f no verbatim transcript of the evidence of proceedings
is obtainable the appellant may prepare a proposed report of proceedings from the best
available sources, including recollection.” Ill. S. Ct. R. 323(c) (eff. Dec. 13, 2005). It is
incumbent upon Pedro, as the party claiming error, to provide a record sufficiently including
all evidence pertinent to the appeal and preserving for review all matters necessary for a
disposition. Murphy v. Chestnut Mountain Lodge, Inc., 124 Ill. App. 3d 508, 510 (1984). We
will resolve any doubts rising from an incomplete record against Pedro because, absent
record evidence to the contrary, we must assume that the trial court acted in conformity with
-8-
8
the law and had before it the necessary facts to support its decision. Murphy, 124 Ill. App.
3d at 510.
¶ 36 In the instant case, Pedro argues that the trial court improperly denied his pro se motion
to reconsider. The trial court scheduled a hearing on the motion for November 17, 2011, and
entered an order denying the motion on the same day. The record includes neither a transcript
of the hearing nor a bystander’s report of the proceedings. If the record fails to “shed light
on the court’s reasons” for denying the motion, we must conclude that the trial court properly
based its decision on the law and the evidence. In re Marriage of Thomsen, 371 Ill. App. 3d
236, 242 (2007).
¶ 37 However, in this case, the record does “shed light on the court’s reasons” for denying
Pedro’s motion. Thomsen, 371 Ill. App. 3d at 242. Although Pedro failed to submit a
transcript or bystander’s report of the hearing, the trial court issued a written order finding:
(1) that Pedro’s pro se motion to reconsider raised issues not in his original motion; and (2)
that Pedro’s pro se motion to reconsider violated Illinois Supreme Court Rule 274 (eff. Jan.
1, 2006), which prohibits the filing of multiple postjudgment motions. Since the record
includes Pedro’s original motion to vacate, his pro se motion to reconsider, and the trial
court’s order setting forth its reasons for denying the motion to reconsider, the record is
sufficient for us to review the alleged errors which Pedro now appeals. Higgins v. Columbia
Tool Steel Co., 76 Ill. App. 3d 769, 776 (1979).
¶ 38 B. Illinois Supreme Court Rule 274
¶ 39 Illinois Supreme Court Rule 274 states that parties “may make only one postjudgment
motion directed at a judgment order that is otherwise final.” Ill. S. Ct. R. 274 (eff. Jan. 1,
2006). On August 11, 2011, Pedro filed his motion to vacate the prove-up. On October 11,
2011, the trial court denied the motion and entered a final judgment dissolving the marriage.
On October 27, 2011, approximately two weeks after the entry of the dissolution judgment,
Pedro filed the motion to reconsider his motion to vacate the prove-up. Pedro’s pro se
motion to reconsider is the motion at issue in this appeal. Since Pedro filed only one motion
after the trial court’s entry of final judgment, Pedro’s motion to reconsider did not violate
Rule 274.2
¶ 40 C. Issues Not Raised in the Motion to Vacate
¶ 41 The trial court was within its sound discretion to deny Pedro’s pro se motion to
reconsider. The intended purpose of a motion to reconsider is to bring to the court’s attention
newly discovered evidence, changes in the law, or errors in the court’s previous application
of the existing law. GMAC, 374 Ill. App. 3d at 1078. Newly discovered evidence is evidence
that was not previously available. GMAC, 374 Ill. App. 3d at 1078. A party may raise a new
issue for the first time in a motion to reconsider only when a party has a reasonable
2
Brenda admits in her brief that the trial court was “possibl[y] mistaken” in finding that the
motion to reconsider violated Illinois Supreme Court Rule 274.
-9-
9
explanation for why it did not raise the issue earlier in the proceedings. Kopley Group V.,
L.P. v. Sheridan Edgewater Properties, Ltd., 376 Ill. App. 3d 1006, 1022 (2007).
¶ 42 Pedro’s original motion to vacate claimed that the financial calculations used in drafting
the marital settlement agreement were “incomplete and inaccurate.” The motion to vacate
was filed by Pedro’s second attorney, who had not represented Pedro during the drafting of
the marital settlement agreement. However, the motion to vacate did not specify which
calculations were “incomplete and inaccurate,” or how they were “incomplete and
inaccurate.” The motion also did not allege that the marital settlement agreement was
unconscionable or that Pedro had been coerced into signing it. In contrast, Pedro’s pro se
motion to reconsider claims that the marital settlement agreement was unconscionable and
that he signed it only because his first attorney pressured him to do so and because the stress
of the dissolution made him feel that he had no choice but to sign it.
¶ 43 On appeal, Pedro does not argue that a change in the law occurred between when the trial
court denied his motion to vacate the prove-up and when he filed his motion to reconsider.
Nor does he argue that he has any newly discovered evidence to present. However, Pedro
does assert that his pro se motion addressed errors in the trial court’s previous application
of the existing law, which is a proper subject for a motion to reconsider. GMAC, 374 Ill.
App. 3d at 1078. Specifically, Pedro argues that, although “the law looks with favor upon the
amicable settlement of the property rights between a husband and wife prior to their divorce,
a settlement agreement will be set aside and vacated if said agreement is procured by fraud,
coercion or if contrary to the rule of law, public policy, or morals.” In re Marriage of Perry,
96 Ill. App. 3d 370, 373 (1981). Pedro argues that the trial court improperly refused to set
aside the written settlement agreement in light of his claimed coercion and the
unconscionability of the agreement.
¶ 44 Pedro cites to numerous cases to argue that marital settlement agreements should be set
aside if there is evidence of gross unfairness, coercion, or unconscionability. For example,
in Crawford v. Crawford, 39 Ill. App. 3d 457 (1976), this court reversed the trial court’s
entry of a divorce decree that incorporated a marital settlement agreement. Crawford, 39 Ill.
App. 3d at 458, 464. Before the trial court entered the divorce decree, petitioner obtained
new counsel and filed a motion to stay the proceedings and return the case to the trial call.
Crawford, 39 Ill. App. 3d at 458. The trial court held a hearing on the motion, and petitioner
testified that her first attorney had not consulted or advised her of the terms of the settlement
agreement before she testified at the prove-up hearing and that she did not understand the
significance of the prove-up hearing. Crawford, 39 Ill. App. 3d at 458. Petitioner further
testified that, although she found the terms of the marital settlement agreement to be
unacceptable, she did not object to them at the prove-up hearing because “she did not know
that this subject would be mentioned.” Crawford, 39 Ill. App. 3d at 460. This court found
that petitioner’s testimony had provided ample evidence that she had been coerced into
accepting the agreement by her first attorney. Crawford, 39 Ill. App. 3d at 462.
¶ 45 Similarly, in In re Marriage of Perry, 96 Ill. App. 3d 370 (1981), this court reversed the
trial court’s denial of a motion to set aside an oral settlement agreement. Perry, 96 Ill. App.
3d at 375. After the prove-up hearing, petitioner retained additional counsel and filed her
motion to set aside the oral settlement agreement and reset the case for a contested hearing.
-10-
1
Perry, 96 Ill. App. 3d at 372. The trial court held a hearing on the motion and, as in
Crawford, the petitioner testified about acts of coercion. Specifically, she testified that her
attorney, respondent, and respondent’s attorney met for 15 minutes on the morning of the
prove-up hearing to negotiate a marital settlement agreement, and she was not present. Perry,
96 Ill. App. 3d at 372. When petitioner’s attorney informed her of the terms that he had
negotiated, she told him that the terms were unfair and that respondent’s representations
concerning his income and assets were not true. Her attorney responded that he “felt there
was no way he could disprove respondent’s statements.” Perry, 96 Ill. App. 3d at 372. This
court concluded that petitioner’s testimony provided sufficient evidence to indicate that the
agreement was procured by coercion and had to be set aside. Perry, 96 Ill. App. 3d at 375.
In re Marriage of Moran, 136 Ill. App. 3d 331, 336-37 (1985) (setting aside a marital
settlement agreement because evidence showed that one party had no input in drafting the
agreement and repeatedly objected to the terms of the agreement); In re Marriage of Kloster,
127 Ill. App. 3d 583, 588 (1984) (holding that a marital settlement agreement will be found
unconscionable if it was “hastily contrived” or where a party immediately objects to the
agreement).
¶ 46 Unlike in Crawford or Perry, the appellate record contains no testimony by Pedro or
evidence to substantiate his claims. Although the trial court held a hearing on Pedro’s
motion, Pedro chose not to provide either a transcript or bystander’s report of that hearing.
Thus, if Pedro offered testimony or evidence at that hearing, it is simply not a part of the
record before us. As a result, the record in the case at bar does not disclose any evidence of
coercion or unconscionability. Although Pedro argues now that the marital settlement
agreement was hastily contrived, that he did not understand its terms, and that his attorney
indicated to him that he had no choice but to sign the agreement, we have no evidence to
support Pedro’s claims and the record does not disclose evidence of coercion or
unconscionability. Pedro does not provide evidence of what he did not understand or how
the agreement was unconscionable.
¶ 47 By contrast, in Crawford, Perry, and also in Moran, the complaining parties testified to
the wrongful behavior of their attorneys and opponents, and the petitioners in these cases
were also not part of the settlement proceedings and had no opportunity to object to them.
Crawford, 39 Ill. App. 3d at 458, 460; Perry, 96 Ill. App. 3d at 373; Moran, 136 Ill. App. 3d
at 333-35. In the case at bar, Pedro was present for the settlement proceedings and the prove-
up, and basically agreed to its terms. In addition, on October 11, 2011, after the trial court
denied Pedro’s motion to vacate the prove-up, Pedro still personally signed a stipulation to
have the matter heard as an uncontested case. As a result, the cases cited by Pedro, such as
Crawford, Perry, and Moran, do not support his argument.
¶ 48 The facts of this case are closer to the cases of Stutler v. Stutler, 61 Ill. App. 3d 201(1978), and In re Marriage of De Frates, 91 Ill. App. 3d 607 (1980). In both Stutler and
De Frates, the appellants argued that the marital settlement agreements were invalid. Stutler,
61 Ill. App. 3d at 203 (arguing that she had been coerced into signing a marital settlement
agreement that was unfair); De Frates, 91 Ill. App. 3d at 608 (arguing that both parties had
not agreed to all the terms of the marital settlement agreement). In both cases, this court
found that the appellants’ reliance on cases like Crawford was distinguishable because the
-11-
1
appellate records disclosed no evidence of coercion or unfairness. Stutler, 61 Ill. App. 3d at
205 (distinguishing Crawford, and holding that the appellate record disclosed the fact that
the appellant had participated in settlement negotiations and did not object to the marital
settlement agreement before and during the negotiations); De Frates, 91 Ill. App. 3d at 613-
14 (distinguishing Crawford because there was no evidence in the appellate record that the
marital settlement agreement had been hastily contrived, that there was coercion, or that the
marital settlement agreement was unfair).
¶ 49 Like in Stutler and De Frates, the appellate record in the case at bar does not indicate that
Pedro was coerced or treated unfairly in the negotiations process or in the final settlement
agreement. Stutler, 61 Ill. App. 3d at 205-06. Instead, the record indicates that Pedro most
likely suffered a “change of heart” after the prove-up hearing. Stutler, 61 Ill. App. 3d at 205-
06. Without any testimony or evidence in the record indicating that Pedro was coerced, or
that the marital settlement agreement was unfair or unconscionable, we cannot substitute our
judgment for that of the trial court. Stutler, 61 Ill. App. 3d at 206. Therefore, we cannot find
that the trial court abused its discretion in denying Pedro’s motion to reconsider.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we affirm the judgment of the trial court. We cannot say that
the trial court’s factual finding of residency was against the manifest weight of the evidence.
Nor can we say that the trial court abused its discretion in denying Pedro’s motion to
reconsider when Pedro raised new issues not raised in his motion to vacate without a
reasonable explanation for why he did not raise the issues in his first motion and without a
showing that the trial court misapplied the existing law.
¶ 52 Affirmed.
-12-
1