In re Marriage of Akbani

Illinois Official Reports
Appellate Court
In re Marriage of Akbani, 2014 IL App (5th) 130266
Appellate Court In re MARRIAGE OF SALIM AKBANI, Petitioner-Appellant, and
Caption DONNA S. AKBANI, n/k/a Donna S. Robbins, Respondent-
Appellee.
District & No. Fifth District
Docket No. 5-13-0266
Filed August 26, 2014
Held In dissolution proceedings, the trial court properly found that the
(Note: This syllabus separation and divorce the parties entered into in 2008, including the
constitutes no part of the provisions dividing the parties’ assets and obligations, was binding
opinion of the court but and enforceable on the parties, but that the agreement the parties
has been prepared by the entered into in 2010 was not binding, since that agreement contained
Reporter of Decisions an attorney review clause not present in the earlier agreement, that
for the convenience of clause was a condition precedent to the completion of the agreement,
the reader.) and the condition was not satisfied.
Decision Under Appeal from the Circuit Court of St. Clair County, No. 08-D-555; the
Review Hon. Zina R. Cruse, Judge, presiding.
Judgment Affirmed.
Counsel on Richard W. Thompson, of Belleville, and Jill Laux Schubert, of Law
Appeal Offices of Jill J. Laux, L.L.C., of O’Fallon, for appellant.
Daniel J. Grueninger, of Law Office of Daniel J. Grueninger, of
Belleville, for appellee.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Presiding Justice Welch and Justice Stewart concurred in the
judgment and opinion.
OPINION
¶1 Petitioner, Salim Akbani, appeals from a supplemental judgment of dissolution of marriage
entered in the circuit court of St. Clair County which, inter alia, confirmed two previous orders
of the trial court, the first being a finding that an April 2008 separation and divorce agreement
(2008 agreement) entered into between petitioner and respondent, Donna S. Akbani, n/k/a
Donna S. Robbins, is binding on the parties, and the second being a finding that a 2010
handwritten agreement (2010 agreement) is not binding on the parties. The 2010 agreement
was found unenforceable on the basis that it contained an attorney review clause, which was a
condition precedent to the completion of the 2010 agreement, and that condition was not met.
The supplemental judgment allocated property and debt between the parties pursuant to the
2008 agreement and resolved the remaining issues between the parties not covered by the 2008
agreement. Both parties filed motions to reconsider. Ultimately, the trial court entered an order
granting in part and denying in part each party’s motion to reconsider. Petitioner filed a timely
notice of appeal. The two issues raised by petitioner in this appeal are: (1) whether the 2008
agreement is enforceable and (2) whether the trial court erred in finding the 2010 agreement
unenforceable. We affirm.
¶2 BACKGROUND
¶3 The parties married on October 16, 1998. No children were born or adopted during the
marriage. The parties each blame the other for the divorce.
¶4 The parties became business partners, opening Gateway Classic Cars in St. Louis in April
1999, and a second classic car business, Streetside Classic Cars, in Charlotte, North Carolina,
in September 2005. Petitioner was mainly involved in sales, while respondent handled
administrative matters. However, respondent testified that petitioner was “definitely” involved
in the day-to-day bookkeeping and accounting of the businesses.
¶5 Respondent ultimately spent more and more time at the Charlotte business. According to
petitioner, respondent told him she wanted out of the marriage in March 2008. Petitioner
claims he was blind-sided by respondent’s announcement and tried to persuade respondent to
change her mind. He testified he was completely distraught and was willing to give respondent
whatever she asked for in order to make her happy and save the relationship. He later learned
that respondent was having an affair with Bob Mueller, one of their employees.
¶6 On the other hand, respondent testified the parties’ marriage was rocky for years, but the
final straw for her came in late February or early March 2008, over a proposed business
venture. Respondent and petitioner went to lunch at which time he informed her he wanted to
build a $20 million project on a seven-acre tract the parties owned. The parties purchased the
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tract with plans to build a new dealership on it. Petitioner now wanted to build a hotel,
convention center, and restaurant on the property and showed respondent plans of his proposal.
Respondent wanted no part of this business venture because she thought it was too risky.
¶7 According to respondent, petitioner told her if she was not happy in the marriage, she could
leave. Respondent testified petitioner always told her that, but by April 2008, she had had
enough and told him she believed that is what she should do. The parties then discussed how to
split up their businesses and assets.
¶8 The parties agree respondent drafted the 2008 agreement, which divided most of the
parties’ assets and businesses, but agree on little else. According to petitioner, respondent went
from wanting nothing to wanting everything, and he kept revising the 2008 agreement to meet
her demands in the hope of salvaging the relationship. Petitioner claimed he was in denial
about the parties’ relationship even when the 2008 agreement was formalized on April 14,
2008. He did not realize respondent was serious about the divorce until he came home from a
trip in May and found that respondent had taken many items out of the marital residence in
O’Fallon.
¶9 Respondent testified petitioner drafted the agreement on the day she told him she wanted
out of the marriage. The parties discussed splitting the businesses, with petitioner taking the St.
Louis business and respondent taking the Charlotte business. Respondent testified she did not
provide petitioner with any of the language he used in drafting the 2008 agreement and made
no changes to the 2008 agreement, except to change typographical and spelling errors.
¶ 10 The 2008 agreement provided, inter alia, that respondent would (1) receive the parties’
condo in Charlotte, (2) take over the Charlotte business, beginning on May 1, 2008, (3) receive
the parties’ 2003 Ford Expedition, and (4) receive a $135,000 cash settlement “for the business
and personal separation and divorce.” The $135,000 was to be paid in installments, including
$75,000 on May 1, 2008, from a then-existing line of credit and thereafter 12 installment
payments of $5,000 per month. The 2008 agreement further provided that petitioner would (1)
receive the marital home located in O’Fallon, (2) receive the parties’ land at Shafer Airfield,
but only after he paid respondent the $135,000 settlement, and (3) take over the parties’ St.
Louis business and any expenses incurred after April 20, 2008. The agreement also provided
the parties would share equally in the costs of the divorce and the parties would provide for the
payment of certain expenses pertaining to the Charlotte and St. Louis businesses, including
sharing the employ of Bob Mueller. Petitioner’s exhibit 37 shows that under the terms of the
2008 agreement petitioner would receive 40.17% of the marital property and respondent would
receive 59.83% of the marital property.
¶ 11 Petitioner signed the agreement on April 18, 2008. Respondent signed the agreement on
April 22, 2008, after petitioner faxed it to her in Charlotte. In accordance with the 2008
agreement, petitioner filed for divorce on July 10, 2008, citing irreconcilable differences and
noting that attempts at reconciliation had failed and further attempts were not in the best
interests of either party. At the same time, petitioner filed a petition for a temporary restraining
order, requesting an injunction against respondent concerning marital assets. Respondent took
over the day-to-day operations in Charlotte, while petitioner remained in charge of the St.
Louis operation.
¶ 12 On January 15, 2009, after a hearing, the trial court entered an order finding the 2008
agreement between the parties was binding on the parties, specifically stating, “[T]he court
finds that both parties are capable, financially-knowledgeable, and intelligent regarding the
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parties’ assets prior to signing the Separation and Divorce Agreement in April 2008.” The trial
court ordered the parties to comply with the terms of the 2008 agreement.
¶ 13 Unfortunately, this did not end the litigation. On May 22, 2009, petitioner filed an amended
petition for dissolution of marriage, seeking a judgment of dissolution and an order requiring
respondent to contribute to marital debts and expenses and to pay temporary and permanent
maintenance to petitioner, as well as a determination of each party’s nonmarital and marital
property and an equitable distribution of each. On October 29, 2009, respondent filed a petition
for rule to show cause, alleging inter alia that petitioner failed to pay her the $135,000 cash
settlement pursuant to the terms of the 2008 agreement and failed to make mortgage payments
on the O’Fallon marital residence, thereby adversely affecting her credit. Respondent sought
judgment in the amount of $135,000, plus interest, an order requiring the Shafer Airfield
property or the marital home to be placed for sale in order to satisfy the judgment, and
temporary maintenance, plus attorney fees and costs.
¶ 14 In May 2010, the parties participated in mediation in an attempt to reach an agreement on
all remaining issues. The mediation was voluntary, not court-ordered. The parties’ attorneys
were not present. The purpose of the mediation was to attempt to resolve issues that the 2008
agreement did not resolve. A retired judge, James Radcliffe, presided over the mediation. At
the end of the mediation, a handwritten agreement was signed by both of the parties. That
agreement specifically stated, “The above parties, having submitted this matter to mediation,
do now agree that their dispute has been compromised and settled on the following terms:
Review and consultation with respective attorneys.” Thereafter, the 2010 agreement was typed
into a 17-page document. Petitioner signed the typed 2010 agreement, but respondent, after
consulting with her attorney, refused to sign it and refused to abide by its terms.
¶ 15 Petitioner then filed a motion for declaratory judgment or, in the alternative, to enforce the
settlement agreement, seeking to enforce the 2010 agreement. On August 25, 2010, the trial
court entered an order finding the review and consultation clause set forth above to be a
condition precedent to the completion of the agreement and denying petitioner’s motion for
declaratory judgment. As a result, the 2010 agreement was found not binding on the parties.
¶ 16 On November 17, 2010, an order was entered which dissolved the parties’ marriage,
restored respondent’s maiden name, provided that both parties waived maintenance, and
awarded each party his or her own life insurance policy. All other issues were reserved. A
hearing on all remaining issues was scheduled for December 29, 2010.
¶ 17 On that date, a hearing was conducted, after which the case was taken under advisement.
On June 8, 2012, the trial court entered a supplemental judgment of dissolution with regard to
the disposition of property and debt which remained outstanding. Both parties filed motions to
reconsider.
¶ 18 On April 26, 2013, the trial court entered an order granting in part and denying in part each
party’s motion to reconsider. The judge was a different judge than the one who ruled on the
applicability of the 2008 agreement and 2010 agreement. The new judge specifically stated
that she would not “second guess[ ]” either the January 15, 2009, or the August 25, 2010,
rulings by a different judge and that “neither party owes any additional amount to the other,
except the $66,000 judgment against the Petitioner in favor of the Respondent.” The trial court
struck the findings in paragraphs 16 and 21 of the supplemental judgment and amended other
parts, making petitioner responsible for real estate taxes and insurance on the O’Fallon marital
residence since 2007. The trial court also found that all other orders not inconsistent with its
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order remain in full force and effect and denied any relief requested and not specifically
addressed or granted. Petitioner filed a timely notice of appeal.
¶ 19 ISSUES
¶ 20 I. 2008 Agreement
¶ 21 The first issue we are asked to address is whether the trial court erred in finding the 2008
agreement enforceable. Petitioner contends the 2008 agreement is unenforceable because: (1)
he was under duress and not in his right mind at the time he signed it due to the distress caused
by respondent’s asking for a divorce and he felt pressured into giving respondent everything
she asked for in order to give her space and time in which to change her mind and save their
marriage; (2) it is unconscionable; and (3) it is based on mutual mistakes of fact. Respondent
replies the trial court did not err in finding the 2008 agreement binding on the parties because
the duress experienced by petitioner was nothing more than the normal anxieties and stress
anyone undergoing a divorce goes through and certainly did not rise to the level where
petitioner was deprived of his free will, the agreement is not unconscionable, and it does not
present a mutual mistake of fact. We agree with respondent.
¶ 22 “Duress has been defined as including the imposition, oppression, undue influence or the
taking of undue advantage of the stress of another whereby one is deprived of the exercise of
his free will.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 215, 633 N.E.2d 225, 230
(1994). It is generally accepted that “stress is common in dissolution proceedings.”
In re Marriage of Flynn, 232 Ill. App. 3d 394, 401, 597 N.E.2d 709, 713 (1992). Stress alone
does not prove duress. Flynn, 232 Ill. App. 3d at 401, 597 N.E.2d at 713. Even the stress of
possibly losing custody of a child does not demonstrate that one lacked the ability to make a
voluntary decision. See In re Marriage of Steadman, 283 Ill. App. 3d 703, 710, 670 N.E.2d
1146, 1151-52 (1996). The person asserting duress has the burden of proving by clear and
convincing evidence that he was bereft of the quality of mind essential in making the contract.
In re Marriage of McCaskey, 167 Ill. App. 3d 860, 865, 522 N.E.2d 300, 303 (1988);
In re Marriage of Riedy, 130 Ill. App. 3d 311, 314, 474 N.E.2d 28, 30 (1985).
¶ 23 Furthermore, a marital settlement agreement is unconscionable in cases where there is an
absence of a meaningful choice on the part of one of the parties combined with contract terms
which are excessively favorable to the other party. In re Marriage of Baecker, 2012 IL App
(3d) 110660, ¶ 41, 983 N.E.2d 104. In order to rise to the level of being unconscionable, a
settlement has to be “ ‘improvident, totally one-sided or oppressive.’ ” Baecker, 2012 IL App
(3d) 110660, ¶ 41, 983 N.E.2d 104 (quoting In re Marriage of Gorman, 284 Ill. App. 3d 171,
182, 671 N.E.2d 819, 827 (1996)). Such is not the case here.
¶ 24 Petitioner asserts that the loss of his marriage is analogous to the loss suffered in
In re Marriage of Richardson, 237 Ill. App. 3d 1067, 606 N.E.2d 56 (1992), where the duress
on the wife was found sufficient to warrant setting aside a postnuptial agreement as
unconscionable. The instant case is distinguishable from Richardson for numerous reasons.
First, in Richardson it was the husband who wanted a divorce and the agreement in question
was signed only one week after the wife’s father had died. Richardson, 237 Ill. App. 3d at
1080-81, 606 N.E.2d at 65. Second, the husband had his counsel find a second attorney for the
wife after her first attorney recommended she not sign the agreement. Richardson, 237 Ill.
App. 3d at 1081, 606 N.E.2d at 65-66. The first attorney was not explicitly terminated, and the
second attorney was not aware the wife had previously been represented. Richardson, 237 Ill.
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App. 3d at 1072-73, 606 N.E.2d at 60. The wife never met the second attorney until the
meeting during which the agreement was signed, and she was at the meeting under false
pretenses, having been told the meeting was for the purpose of exchanging titles between
certain properties. Richardson, 237 Ill. App. 3d at 1074, 606 N.E.2d at 61. Third, the wife did
not receive any letters or a copy of the agreement prior to the meeting and “had no independent
knowledge of the assets or liabilities listed on the balance sheet.” Richardson, 237 Ill. App. 3d
at 1074-75, 606 N.E.2d at 61. Finally, the economic circumstances of the parties rendered the
contract unconscionable because the wife at most received only 7.55% of the parties’ assets
and the husband fraudulently misrepresented the parties’ main asset of stock as a nonmarital
asset in inducing respondent to sign the agreement. Richardson, 237 Ill. App. 3d at 1083-84,
606 N.E.2d at 67.
¶ 25 In the instant case, the parties agree that petitioner wrote the 2008 agreement. Petitioner is
an astute businessman who was ready to take on a $20 million project. He knew what assets the
parties had amassed, and he signed the agreement before respondent. Respondent made no
changes to the document, except to correct typographical and spelling errors. The facts of
Richardson are in no way similar to the facts herein.
¶ 26 After careful consideration of the record before us, we unequivocally believe that the
duress petitioner suffered as the result of the parties’ marital discord was in no way greater than
the stress a party is under when he or she is faced with the possibility of losing custody of a
child. The type of stress petitioner faced was no greater than the normal stress caused by a
divorce. Likewise, petitioner has failed to convince us that the 2008 agreement is
unconscionable.
¶ 27 Under the 2008 agreement, petitioner received the St. Louis business, which even he
admitted was making more money than the Charlotte business that was awarded to respondent
under the 2008 agreement. Petitioner submitted a spreadsheet in which he claims the actual
division of property per the 2008 agreement left him only 17.35% of the marital assets, while
respondent garnered 82.65% of the assets; however, petitioner’s exhibit 37, submitted during
the first hearing, shows he received 40.17% of the parties’ assets, while respondent received
59.83% of the assets. Our own review of the record shows that the division of assets is not so
“totally one-sided” as to rise to the level of unconscionability necessary to overturn the trial
court’s ruling. See In re Marriage of Foster, 115 Ill. App. 3d 969, 973, 451 N.E.2d 915, 919
(1983).
¶ 28 We are also unconvinced by petitioner’s argument that the 2008 agreement is
unenforceable because it is based on mutual mistakes of fact. Petitioner argues it is obvious the
parties had different understandings about what the 2008 agreement meant and understood its
terms differently. For example, with regard to the mortgage on the O’Fallon marital residence,
respondent thought the 2008 agreement meant petitioner would take it over completely, while
petitioner thought it meant he would pay it only until May 2008. According to petitioner,
because the parties were under mistaken notions about what the agreement meant, it is
unenforceable.
¶ 29 Whether a mutual mistake of fact has been shown is for the trial court to decide and should
not be set aside on appeal unless the trial court’s decision is against the manifest weight of the
evidence. In re Marriage of Shelton, 127 Ill. App. 3d 775, 781, 469 N.E.2d 618, 623 (1984). A
judgment is against the manifest weight of the evidence only when an opposite conclusion is
apparent or when the findings appear to be unreasonable, arbitrary, or not based upon the
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evidence. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 461
(1995). A property settlement should not be set aside merely because one of the parties has
second thoughts. In re Marriage of Chapman, 162 Ill. App. 3d 308, 318, 515 N.E.2d 424, 431
(1987).
¶ 30 Here, the record shows that petitioner took no action to contest the terms of the 2008
agreement until a week before the January 15, 2009, hearing. Between April 2008, when the
parties signed the agreement, and January 2009, both parties proceeded as if the agreement was
in effect. Respondent moved out of the marital home in O’Fallon, took up residence at the less
expensive condo in Charlotte, and took control of the Charlotte business, while petitioner
continued to own and operate the more profitable St. Louis business and live in the more
expensive O’Fallon residence. Pursuant to the agreement, petitioner filed for divorce in July
2008, alleging irreconcilable differences. Petitioner continued to pay the mortgage on the
O’Fallon residence until October 2008, thereby contradicting his own argument that he
thought he only had to pay the mortgage until May 2008.
¶ 31 The record before us does not show that there was a mutual mistake of fact that would
warrant vacating the 2008 agreement written by petitioner. Petitioner’s second thoughts about
the 2008 agreement he wrote and signed are not enough to set it aside. It is well established that
the law favors peaceful settlement of marital dissolution disputes. Guyton v. Guyton, 17 Ill. 2d
439, 444, 161 N.E.2d 832, 835 (1959). Accordingly, we find the trial court did not err in
finding the 2008 agreement enforceable.
¶ 32 II. 2010 Agreement
¶ 33 The second issue raised in this appeal is whether the trial court erred in finding the 2010
agreement unenforceable. Petitioner asserts that respondent’s reliance on the attorney review
provision in the 2010 agreement is misplaced and the trial court erred in finding it to be a
condition precedent to the formation of a binding agreement between the parties. Respondent
replies that the trial court correctly ruled that the 2010 mediation did not result in a binding
contract. We agree with respondent.
¶ 34 As petitioner points out, the resolution of this issue depends on whether the attorney review
provision in the 2010 agreement is a condition precedent to the formation of a binding contract.
If the language is ambiguous, then the determination of its meaning is a question of fact, but if
the language is unambiguous, then the construction of the alleged contract is a question of law.
Interway, Inc. v. Alagna, 85 Ill. App. 3d 1094, 1098, 407 N.E.2d 615, 619 (1980). An
ambiguity is not created by the fact that, as here, the parties do not agree upon an interpretation.
Groshek v. Frainey, 274 Ill. App. 3d 566, 569, 654 N.E.2d 467, 470 (1995). Whether a contract
is clear or ambiguous is a question of law for the court. Groshek, 274 Ill. App. 3d at 569, 654
N.E.2d at 470. As such, we agree with petitioner that our review is de novo. In re Marriage of
Mulry, 314 Ill. App. 3d 756, 758, 732 N.E.2d 667, 670 (2000).
¶ 35 In the instant case, the attorney review provision is plain and unambiguous in that, as a
term of the contract, each party is allowed the opportunity to review and consult with his or her
respective attorney. Parties may specifically provide that negotiations are not binding until a
formal agreement is executed. Interway, Inc., 85 Ill. App. 3d at 1098, 407 N.E.2d at 618. While
petitioner contends the review is a condition subsequent within the offer, we find there is no
difference between the instant clause and an attorney approval clause.
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¶ 36 In Groshek, our colleagues in the First District specifically stated as follows:
“A contract which contains an attorney approval clause is appropriately construed
as a qualified or conditional acceptance of the terms of that contract. Invocation of the
clause triggers a rejection of the contract and, at times, a counteroffer. See generally 2
Williston on Contracts § 6:13, at 104-18 (4th ed. 1991) (conditional acceptance occurs
when a party to an agreement imposes as a condition of the bargain the favorable
opinion of his lawyer).” Groshek, 274 Ill. App. 3d at 570, 654 N.E.2d at 470.
The purpose of giving such broad latitude to an attorney is to give the parties who may not be
sophisticated in such matters a chance to have their attorneys scrutinize the offer prior to final
acceptance. Olympic Restaurant Corp. v. Bank of Wheaton, 251 Ill. App. 3d 594, 601, 622
N.E.2d 904, 909 (1993).
¶ 37 The contested clause in Olympic Restaurant, which the Groshek court also relied upon, is
similar to the clause in the instant case. In that case, the contested provision gave the parties’
attorneys the right to “ ‘review and make modifications.’ ” Olympic Restaurant, 251 Ill. App.
3d at 596, 622 N.E.2d at 906. Here, the clause provides for “[r]eview and consultation with
respective attorneys.” Olympic Restaurant concerned a real estate sale, but the rationale used
in deciding the case applies equally here:
“ ‘The purpose of such an attorney approval clause is to provide the purchaser
or seller with the opportunity of obtaining legal advice with respect to the
transaction, and its value lies in the fact that the contract may be canceled upon
receiving such advice. Parties to a real estate transaction are entitled to the benefit
of the judgment of a trusted counselor, and an approval contingency is designed to
accord this right to those who, for some reason, enter into a purchase and sale
agreement before reviewing the matter with their attorney [sic].’ [Citation.]
We believe this is sound logic and should apply in the present matter. The only
reason to have an attorney review clause is to give the parties to a contract, who may
not be sophisticated in matters relating to real estate and/or contracts, a chance to have
their attorneys scrutinize the offer before final acceptance. In the present matter, if
there was no way for the parties to get out of the October 25 contract during the review
period, the review clause was meaningless and the attorney review process was a
pointless exercise.” Olympic Restaurant, 251 Ill. App. 3d at 600-01, 622 N.E.2d at 909.
Similarly, the parties in the instant case were also entitled to the benefit of counsel prior to
making the 2010 agreement binding.
¶ 38 While the parties here are both savvy and sophisticated business owners, there is nothing in
the record to suggest they are well versed in divorce matters. Each party was represented by an
attorney who concentrates in family law matters. The parties agreed to voluntary mediation in
the hope of coming to a final resolution of the remaining matters, but neither agreed to proceed
pro se. Both parties agreed to the inclusion of the attorney review clause during mediation
because neither party’s attorney was present at the mediation session where the 2010
agreement originated. A clause was added to the agreement providing that it was subject to
review and consultation with respective attorneys. If that clause is not viewed as a condition
precedent to the formation of a contract, then it is rendered meaningless and would mean that
the parties were ordered to proceed pro se even though they both had retained counsel.
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¶ 39 Petitioner asserts that in actuality the parties were not mediating during the session where
the 2010 agreement was reached, but were creating a binding marital settlement which
respondent’s lawyer agreed to by agreeing to the mediation. Petitioner’s argument is not
supported by this record. The parties were involved in an informal, voluntary mediation
session. The local rules regarding mediation specifically provide that during mediation “[i]f an
agreement is reached in whole or in part, it shall be reduced to writing on the Memorandum of
Agreement Form or attached thereto and signed by the parties and their counsel, if any, at the
conclusion of the mediation.” (Emphasis added.) 20th Judicial Cir. Ct.–Annexed Mediation for
Civil Cases IV(M) (Oct. 26, 2004). Because neither attorney was present at the mediation,
neither attorney signed the 2010 agreement. By local rules, this was a nonbinding agreement.
¶ 40 During oral argument, petitioner’s attorney specifically asked this court for guidance with
regard to future cases in which parties seek to reach a marital settlement agreement via
mediation. The guidance we offer petitioner’s attorney is simple: be consistent. Represented
parties cannot agree to proceed pro se and then include an attorney review clause in their
mediation agreement. If the mediation session is truly meant to result in a binding marital
settlement agreement, the parties should specifically state they are agreeing to proceed pro se,
and an attorney review clause should not be included in the agreement, or counsel should be
present, participate, and sign the resulting memorandum.
¶ 41 Finally, we point out that there is no evidence of bad faith in respondent’s rejection of the
2010 agreement. Respondent rejected the 2010 agreement after review and consultation with
her attorney within a few days after the mediation session. Respondent’s rejection of the 2010
agreement after review and consultation with her attorney means no contract was formed, and,
thus, the trial court properly refused to order respondent to sign the 17-page marital settlement
agreement which was prepared after the mediation session.
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, we hold that the trial court did not err in finding the 2008
agreement to be binding, but that the 2010 handwritten notes which were later turned into the
2010 agreement were not. We do not agree with petitioner that it is inequitable to hold him to
the 2008 agreement, but not hold respondent to the 2010 agreement. The 2010 agreement
contained an attorney review clause not present in the 2008 agreement. Accordingly, we affirm
the judgment of the circuit court of St. Clair County in its entirety.
¶ 44 Affirmed.
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