In re Marriage of Gorman , 284 Ill. App. 3d 171 ( 1996 )

THIRD DIVISION
September 30, 1996
No. 1-95-0164
MARRIAGE OF ) Appeal from the
JAMES J. GORMAN, ) Circuit Court
) of Cook County
Petitioner-Appellant, )
)
and )
)
SHARON E. GORMAN, ) Honorable
) Samuel C. Maragos,
Respondent-Appellee. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
The circuit court granted respondent Sharon E. Gorman's
(Sharon's) petition pursuant to section 2-1401 of the Illinois
Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)) to vacate
the property settlement agreement (Agreement) that had been
incorporated into the judgment of dissolution of marriage
(Judgment) for Sharon and petitioner James J. Gorman (James).
On appeal, James asserts that the circuit court erred and
contends (1) that the appearance form filed on behalf of Sharon
was sufficient to confer personal jurisdiction over Sharon in the
dissolution of marriage proceedings; (2) that the Agreement was
neither unconscionable nor obtained by coercion on the part of
James; and (3) that Sharon failed to exhibit due diligence in
presenting grounds for relief advanced in her section 2-1401
petition. In addition, Sharon contends, for the first time on
appeal, that the trial court lacked subject matter jurisdiction
over the dissolution proceedings because the parties were not
separated for two years before the initiation of such
proceedings.
We agree with James and, therefore, reverse the circuit
court's order vacating the Agreement. We also reject Sharon's
assertion that the trial court lacked subject matter
jurisdiction.
On November 5, 1977, James married Sharon. On April 2,
1991, James filed his petition for the dissolution of marriage.
On April 9, 1991, a prove up was held and the trial court entered
a judgment for dissolution of marriage which incorporated the
property settlement agreement.
At the prove up on April 9, 1991, only James testified
because at that time, Sharon was in California. Prior to the
prove up, however, Sharon had signed the necessary papers, i.e.,
a pro se appearance, the Judgment and the Agreement. James
testified that he cohabited with Sharon until December 15, 1988,
and their efforts to reconcile had failed. James testified that
he and Sharon entered into a property settlement agreement. In
response to a question posed by the court, James testified that
Sharon has had the advice of an attorney and she met with a
lawyer before she signed the agreement. In addition, James'
attorney represented to the court that he had spoken to Sharon
the previous night "just to make sure there were no problems or
any last minute things she needed to know, and she told me she
was quite comfortable with the settlement and that she would be
divorced today."
The court then entered the Judgment incorporating the
Agreement. Pursuant to the Agreement, Sharon received:
the California house; $10,000 cash; the right to one-half the net
proceeds of James' individual retirement account(IRA) account
upon his death or termination of the account; 1990 Mitsubishi
Montero automobile; and the right to resume the use of her maiden
name, Sharon Gilchrist.
Pursuant to the Agreement, James received the Chicago house.
James incurred sole responsibility for paying all the taxes due
on the parties' joint 1990 federal and state tax returns,
including the taxes due from the sale of the Delavan, Wisconsin,
property.
Each party retained his or her own respective IRA accounts,
bank accounts, pension and profit sharing plans. The parties had
already divided their personal property, and the items in their
respective possession were deemed their sole property. Each
party would bear sole liability for any and all debts and
liabilities that he or she, respectively, had incurred.
More than 19 months later, on November 23, 1992, Sharon
filed a motion to vacate the Judgment, asserting that the court
lacked personal jurisdiction over her based on the allegedly
improper appearance filed on April 9, 1991, at the prove up.
While the November 1992 motion to vacate remained pending and
undetermined, Sharon filed, on March 29, 1993, a section 2-1401
petition to vacate the Agreement incorporated into the Judgment.
Sharon again asserted that the court lacked personal jurisdiction
over her and additionally contended that the Agreement was
unconscionable and procured by duress and harassment on the part
of James.
On October 31 and November 1, 1994, a hearing was held on
Sharon's petition to vacate the Agreement. Both Sharon and James
testified at the hearing.
Sharon testified that, when they first married in 1977, she
and James rented an apartment on Division Street in Chicago. In
1978, less than one year after marriage,the couple moved to
Houston, Texas, due to a company transfer for James. The couple
purchased a home in Houston and remained there until James was
transferred back to Chicago in November 1981.
Upon their return to Chicago in 1981, the couple bought a
condominium at 881 North LaSalle. In 1982, less than one year
later, the couple moved to a smaller condominium at 900 North
Lake Shore Drive and bought a home in Delavan, Wisconsin, which
they went to on a weekly basis. In April or May of 1989, the
couple sold the condominium at 900 North Lake Shore Drive and
moved to a home at 1849 North Halsted Street, costing $256,000.
In the spring and summer of 1990, the couple began
discussing moving to California. Sharon testified that she
regretted moving from Chicago because she "wanted very much to
wait until [James] was 55 years old to sell anything because
[she] knew that [they] could get a reduction in the real estate
and [they] wouldn't have to pay those capital gains." At the end
of May 1990, the Halsted Street and Delavan properties were
placed on the market. In June 1990, Sharon found a house in
Irvine, California, and signed a contract for the property in the
amount of $412,000, with a move-in date of September 1, 1990.
Sharon moved to California in October 1990.
At the end of August 1990, the Delavan property sold for
$700,000, providing net proceeds of $470,342.16. From the net
proceeds, $104,000 was used for the California house and the
remainder was put into a Paine Weber savings account, i.e.,
$366,342.16.
In the beginning of September 1990, James moved to
California and was able to maintain his employment with Korn
Ferry, an executive search business. In October 1990, Sharon
moved to California when her job transfer became effective.
After their move to California, their Halsted Street property
remained on the real estate market and Sharon wrote the checks to
make the mortgage payments for both properties.
By October 1990, James and Sharon barely spoke to one
another. Sharon testified that James was acting very strange and
was not talking or communicating to her. James declined Sharon's
suggestion to see a marriage counselor.
In January 1991, Sharon learned that James lost his job with
Korn Ferry and that he decided to look for employment in Chicago.
The couple put their California house on the market. Their house
on Halsted Street in Chicago had still not been sold. According
to Sharon, James told her that his priority was to get a job and
he could not think about their relationship. James told Sharon
that "[h]e needed to think, he needed time, he needed space, and
he could not do that with me being with him." Sharon deliberated
whether to return to Chicago and not live with James or to go
somewhere else. Sharon decided to go to Atlanta, Georgia,
because that is where she would have the best employment
opportunities. Sharon testified that between January and March
1991, James was living with Sharon in California and the couple
discussed separating but did not talk about getting a divorce.
On March 16, 1991, James left California on business and
that was the last time Sharon saw him prior to the time he filed
the divorce action. At that time, James and Sharon split up some
household goods. The whole garage was full of boxes that had
been packed by James, including most of his clothes and some
furniture. The items were transported to Chicago by professional
movers. The bulk of the household furniture and furnishings
remained in the California residence for Sharon to take to
Atlanta. For two months prior to March 1991, the couple talked
about James returning to Chicago, Sharon moving to Atlanta, and
both of them splitting up their household.
On March 22, 1991, a contract was obtained for the
California house with a sale price of $420,000. The closing date
was set for the middle of April. After speaking to James during
the day about obtaining the contract and after signing the
contract, Sharon left California that night (March 22) to travel
to Atlanta, Georgia, to explore housing. The next day (March 23)
Sharon found a place to live in Atlanta for $133,500, signed a
contract for it, and told James about it by telephone that
evening. James opined that Sharon was spending too much money.
On March 28, 1991, at 6:30 a.m. California time, James
telephoned Sharon and informed her that he was sending divorce
papers to her via Federal Express. Sharon testified that James
told her if she signed the papers, the matter would be finished
in nine days. If she did not sign the papers, James would not
give her the money for Atlanta and she would not have any place
to live. Sharon testified that James spoke in an intimidating
tone of voice. Sharon testified that she felt she had to sign
the papers because she did not have a house in California or
Chicago anymore and if she did not get the money, she would not
have the property in Atlanta. Sharon further testified that
James "was an extremely volatile person, very temperamental,
constantly screaming and yelling at me, whether it was my fault
for something or somebody else caused him anger."
The package of papers contained a copy of the petition for
dissolution, a copy of the property settlement agreement and four
copies of the pro se appearance. Sharon modified the Agreement
by changing the date specifying the time they lived separately
and apart from each other to December 15, 1988, and by crossing
out language relating to James' IRA account. Sharon initialled
every page and signed on the back. Sharon also signed and
returned the appearance form.
On March 29, 1991, Sharon took the divorce papers to a
California attorney to ascertain whether they were legal
documents. The California lawyer stated that he was not familiar
with Illinois law or her marital assets and recommended that
Sharon get an attorney. On March 30, 1991, Sharon signed and
returned the papers.
On April 8, 1991, Sharon had a conversation with Saul Foos,
James' attorney. Mr. Foos telephoned Sharon and asked if she
thought there was anything else, such as any other assets.
Sharon responded that it was fine. On April 9, 1991, the prove
up was held and the Judgment was entered.
In July 1991, in a phone conversation, James told Sharon
that he had a new woman in his life. In December 1991, Sharon
met with a lawyer to seek advice about the contents of the
Agreement. Sharon waited until that time to obtain legal advice
because she did not realize until the fall of 1991 that she and
James were not going to get back together when she found out that
James had a girlfriend.
James testified that while married to and living with
Sharon, he met his current wife Jill at the end of July or the
first of August 1990. Since they lived in different States,
James and Jill saw each other very infrequently for the next six
months. James testified that he did not recall his testimony at
the prove up.
Sharon had been steadily employed with Delta Airlines
before, during and after the marriage. In 1992, Sharon began
working with Private Jet Expedition. During the marriage, James
lost his job twice. About 1987 or 1988, James was unemployed and
in January 1991, James lost his job and relocated back to
Chicago.
On December 2, 1994, the trial court entered an order
vacating the Agreement of April 1991. The court specifically
found that the Agreement was unconscionable; that Sharon was
forced and coerced by James to enter into the Agreement; that
Sharon exercised due diligence based in part on the fact that
Sharon continued to hope that she would be able to get back
together with James after Judgment had been entered; that even if
the requirement of due diligence had not been satisfied, justice
and fairness require that the Judgment be vacated and thus the
requirement of due diligence need not strictly be applied; and
that the court lacked in personam jurisdiction over Sharon
because the appearance filed on behalf of Sharon does not bear
her signature and she did not authorize the signing of the
document. Subsequently, the court denied a motion for
reconsideration filed by James.
On appeal, James asserts that the trial court erred in
finding a lack of personal jurisdiction over Sharon in the
divorce proceedings. James argues that personal jurisdiction was
conferred because Sharon signed a pro se appearance, returned the
document to James' attorney for use in the divorce proceedings,
and, thereby, intended to appear and be bound by the judgment.
Sharon contends that the circuit court lacked personal
jurisdiction over her at the time judgment was entered because
the appearance form filed at the prove up was signed by James'
attorney (Saul Foos) and that Sharon did not give him the
authority to sign an appearance on her behalf. Sharon concedes
that she signed an appearance form pro se before the prove up.
Initially we observe that Sharon failed to provide any
authority for the jurisdictional issue and argument. Such
failure violates Illinois Supreme Court Rule 341, which governs
appellate briefs. 134 Ill. 2d R. 341. Rule 341(e)(7) mandates
that an appellant's brief include "[a]rgument, which shall
contain the contentions of the appellant and the reasons
therefor, with citation of the authorities and the pages of the
record relied on." 134 Ill. 2d R. 341(e)(7). This mandate also
applies to an appellee under Rule 341(f), which provides that
"[t]he brief for the appellee and other parties shall conform to
the foregoing requirements." 134 Ill. 2d R. 341(f).
Personal jurisdiction is acquired either by service of
summons or by general appearance, and it is derived from actions
of the person sought to be bound. In re Marriage of Verdung, 126
Ill. 2d 542, 547 (1989); In re Marriage of Wilson, 193 Ill. App.
3d 473, 480 (1990).
In the present case, there is no dispute that Sharon was not
served with a summons. However, the requirement of prior service
of process is waived where a person participates in the court
proceeding, thereby recognizing the case as being in court.
E.g., In re Estate of Zoglauer, 229 Ill. App. 3d 394, 397 (1992).
Sharon certainly recognized and participated in the case by
signing and returning the forms necessary to the dissolution of
marriage proceedings, such as the Judgment and Agreement.
Sharon signed and returned a pro se appearance to James'
attorney, and James' attorney signed and submitted to the court
another version of the appearance form to the court. Both forms
clearly indicate that Sharon was entering a pro se appearance.
We do not believe that the validity of Sharon's appearance
was in any way undermined or insufficient merely based on the
filing of the more current version of the appearance form used in
the domestic relations division. "[I]n a variety of contexts,
the law has consistently interpreted `signed' to embody not only
the act of subscribing a document, but also anything which can
reasonably be understood to symbolize or manifest the signer's
intent to adopt a writing as his or her own and be bound by it."
Just Pants v. Wagner, 247 Ill. App. 3d 166, 173 (1993). In Just
Pants, an arbitrator's name was typewritten at the end of a
memorandum prior to the arbitrator's death. Just Pants, 247 Ill.
App. 3d at 174. The court held that the typewritten name "can
serve to manifest his intent that the 11-page memorandum
constitutes his final word on the subject and that he adopted it
as his opinion of the proper resolution of the dispute between
the parties." Just Pants, 247 Ill. App. 3d at 174. Moreover,
the court held that "the typewritten name at its end can execute
and give legal effect to the memorandum, for we cannot agree with
defendant that such an endorsement by an arbitrator of his award
is to be accorded no more importance than if it had been
accomplished by means of a smoke blanket." Just Pants, 247 Ill.
App. 3d at 174; see also People v. Stephens, 12 Ill. App. 3d 215,
217 (1973) ("It is the intent of the person executing his
signature, not the manner by which it is executed, which
determines the signature's validity").
Similarly, we find in the present case that Sharon's
undisputed signature on the pro se appearance, albeit a different
version of the same form, constitutes her intent to adopt and
enter such appearance. Moreover, "[a]ny action taken by a
litigant which recognizes the case being in court will amount to
a general entry of appearance unless such action was for the sole
purpose of objecting to jurisdiction over the person." Zoglauer,
229 Ill. App. 3d at 397; see also Verdung, 126 Ill. 2d at 547-48 ("[t]here are, nevertheless, instances prior to entry of a
general appearance or service of process where the court may have
jurisdiction over a party because of either the person's
participation in the case or recognition of benefits from the
proceedings") (and cases cited therein).
We do not condone or approve of counsel signing Sharon's
name without her knowledge or consent. That act was
inappropriate. However, it does not alter the fact that she had
previously voluntarily signed a pro se appearance form and
forwarded it to counsel for filing.
Next, James asserts that the trial court erred in finding
that he coerced Sharon to enter into the Agreement and the
Agreement was unconscionable.
Sharon contends that coercion by James and unconscionability
of the Agreement were shown by the following circumstances: (1)
Sharon was not represented by counsel of her choice; (2) a period
of only 12 days elapsed between the time Sharon was sent the
Agreement and the time Judgment was entered; (3) Sharon believed
that James did not want a divorce; (4) Sharon believed that she
and James would get back together; (5) James initiated the
relocation to California and then returned to Chicago; (6) Sharon
believed that she would not get the money for the Atlanta
property unless she signed the Agreement and attendant documents;
and (7) the terms of the Agreement unreasonably favor James.
When a party seeks to vacate a property settlement
incorporated in a judgment of dissolution of marriage, all
presumptions are in favor of the validity of the settlement. In
re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (1994).
A settlement agreement can be set aside if it is shown that
the agreement was procured through coercion, duress or fraud, or
if the agreement is unconscionable. In re Marriage of Flynn, 232
Ill. App. 3d 394, 399 (1992).
Coercion has been defined as "the imposition, oppression,
undue influence, or the taking of undue advantage of the stress
of another, whereby that person is deprived of the exercise of
her free will." Flynn, 232 Ill. App. 3d at 401. The person
asserting coercion bears the burden of proving it by clear and
convincing evidence. Flynn, 232 Ill. App. 3d at 401.
Our review of the record establishes that there is simply no
evidence, let alone clear and convincing evidence, that would
rise to the level of coercion to justify vacating the Agreement.
The record reveals that Sharon was well aware of the assets held
by the couple, was not unsophisticated in financial matters,
voluntarily agreed to live in different states, chose to remain
unrepresented even after a California lawyer recommended that she
obtain legal counsel, and freely and voluntarily entered into the
Agreement. While we sympathize with Sharon's belief that she and
James would reconcile, we also note that Sharon did not object to
the Agreement until she discovered that James had entered a
relationship with another woman. "A court should not set aside a
settlement agreement merely because one party has second
thoughts." Hamm-Smith, 261 Ill. App. 3d at 214, citing In re
Marriage of Steichen, 163 Ill. App. 3d 1074, 1079 (1987); see
also In re Marriage of McCaskey, 167 Ill. App. 3d 860, 865 (1988)
("[w]aiting until after Larry's remarriage and his termination of
the maintenance is not conducive to a persuasive argument of
coercion and duress"); Horwich v. Horwich, 68 Ill. App. 3d 518,
522 (1979) (a change of mind should not render the settlement
invalid). Under the facts of this case, we cannot find clear and
convincing evidence to justify a finding of coercion.
To determine whether an agreement is unconscionable, we
consider two factors: (1) the conditions under which the
agreement was made; and (2) the economic circumstances of the
parties that result from the agreement. Hamm-Smith, 261 Ill.
App. 3d at 219. Unconscionability encompasses "an absence of
meaningful choice on the part of one of the parties together with
contract terms which are unreasonably favorable to the other
party." In re Marriage of Broday, 256 Ill. App. 3d 699, 704-05
(1993).
In the present case, the parties agree that Sharon received
assets with a total value of $137,000 from the proceeds from the
sale of the California house ($83,000), cash ($10,000), a
Mitsubishi car ($20,000), and an employment savings plan
($24,000). The parties disagree about the value of the assets
received by James. Sharon submits that the total value of the
assets distributed to James amounted to $490,000, while James
places the value of his assets at $340,000. Most notably,
however, Sharon fails to represent the value of the liabilities
James bore. In the Agreement, James expressly agreed to be
"solely responsible for paying all the taxes due on the
parties['] joint 1990 Federal and State tax returns as a result
of the sale of [the Delavan, Wisconsin,] property." James
represents that the tax liability for the Wisconsin property
amounted to $68,200. Moreover, the April 1991 Agreement provided
that Sharon received the California property while James received
the Chicago property on Halsted Street, which had been on the
real estate market since May 1990 when the couple decided to move
to California. When the Halsted Street property eventually was
sold, a loss of $30,000 was incurred. Regardless of which
parties' figures are employed, James received a greater share of
the net assets. However, "that an agreement merely favors one
party over another does not make it unconscionable." Hamm-Smith,
261 Ill. App. 3d at 220.
The record also reveals that Sharon was steadily employed
before, during and after the marriage. Although the income of
James substantially exceeded the income of Sharon when he was
working, James was unemployed at least twice during the marriage.
Less than one month before the Judgment, James relocated to
Chicago to find employment because he had recently lost his last
job. The record does not indicate when James secured employment.
To rise to the level of being unconscionable, the settlement
must be improvident, totally one-sided or oppressive. Flynn, 232
Ill. App. 3d at 400. We find that the division of the marital
property in the Agreement in the present case does not remotely
rise to the level of unconscionability.
Finally, the purpose of a section 2-1401 petition for relief
from judgment is to bring facts to the attention of the court
which, if known at the time of judgment, would have prevented its
entry. Hamm-Smith, 261 Ill. App. 3d at 214; Broday, 256 Ill.
App. 3d at 705. The aim of the court in applying this section is
to achieve "justice, not to give the litigant `a new opportunity
to do that which should have been done in an earlier proceeding
or to relieve the litigant `of the consequences of his mistake or
negligence.'" Broday, 256 Ill. App. 3d at 705, quoting In re
Marriage of Travlos, 218 Ill. App. 3d 1030, 1035 (1991).
Although the granting or denying of a section 2-1401 petition
falls within the discretion of the trial court, we hold that
Sharon failed to prove coercion or unconscionability and thus her
petition to vacate the Agreement should have been denied.
Finally, Sharon seeks, for the first time on appeal, a
challenge the validity the Judgment based on alleged lack of
subject matter jurisdiction. Sharon argues that she and James
did not satisfy the two-year separation requirement provided in
the Illinois Marriage and Dissolution of Marriage Act (Act). 750
ILCS 5/401(a)(2) (West 1992). Sharon maintains that the
uncontroverted testimony showed that she and James did not
separate until March 16, 1991, less than one month before the
Judgment was entered.
We reject Sharon's argument because the trial court had
general jurisdiction over the dissolution proceedings and because
Sharon adjudicated her rights to final judgment and made no
objection to subject matter jurisdiction before this appeal. In
re Marriage of Monken, 255 Ill. App. 3d 1044, 1046 (1994); cf. In
re Marriage of Robinson, 225 Ill. App. 3d 1037 (1992) (where the
parties have lived separately for a period of not less than six
months, the two-year waiting period can be waived by written
stipulation but an oral waiver is not sufficient to confer
subject matter jurisdiction to enter an order of dissolution).
Moreover, the date of the parties' legal separation is
stated as December 15, 1988, on the petition for dissolution of
marriage, the Judgment and the Agreement. In addition, for
purposes of a no-fault divorce under the Act, the two-year
separation requirement can be satisfied even where the couple
live in the same house because irreconcilable differences can be
realized between the couple without living in separate
residences. See In re Marriage of Dowd, 214 Ill. App. 3d 156
(1991); In re Marriage of Kenik, 181 Ill. App. 3d 266 (1989).
For all the foregoing reasons, we reverse the order granting
Sharon's petition to vacate the Agreement incorporated in the
Judgment.
Reversed.
TULLY, P.J., and GALLAGHER, J., concur.