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No. 1-00-1848 

First Division
September 28, 2001

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Respondent Raymond J. Terry appeals the denial of his motion to vacate a judgment ofdissolution of marriage incorporating as part of the judgment an oral property settlementagreement reached between him and petitioner Denise Gibson-Terry. On appeal Raymondalleges that: (1) his attorney entered into the settlement agreement without his consent and thetrial court failed to inquire whether he had in fact consented to the agreement; (2) the partiesclearly contemplated that the settlement agreement be reduced to writing and signed by theparties and that the lack of signatures thereby invalidates the agreement; (3) the trial court'sjudgment contains terms that vary from those stated by the parties' attorneys at the prove-uphearing; and (4) the settlement agreement was "hastily arranged," "unfair" and a product of hisattorney's "coercion." For the reasons set forth below, we affirm.

Raymond Terry and Denise Vaughan were married on April 22, 1986, in Chicago,Illinois. The couple have two children: Amanda, born November 8, 1991, and Mitchell, bornSeptember 27, 1994. Raymond and Denise lived together until October of 1997, when Raymondvacated the marital home and moved to Westchester, Illinois. Denise and the two childrenremained at the marital residence in Burbank, Illinois.

On November 4, 1997, Denise filed a petition for dissolution of marriage claimingirreconcilable differences. On November 19, 1997, attorney John R. Heying filed his appearanceon Raymond's behalf, along with a response to the petition for dissolution. During the course ofthe next two years, while the parties engaged in discovery and attempted to reach a negotiatedsettlement, Raymond retained no fewer than three attorneys to represent him in this matter. Apretrial conference was held on July 26, 1999, at which the parties agreed to proceed with trial.

Trial began the morning of October 20, 1999. Both parties gave their opening statementsand stipulated to the following: (1) Denise's defined benefit plan was valued at $28,200; (2)Raymond's defined benefit plan was valued at $152,325; (3) Raymond's severance trust fund wasvalued at $53,770.13; (4) Denise's 401K plan was valued at $5,227.19; and (5) the marital homelocated in Burbank, Illinois, was valued at $141,000. The parties further stipulated to: (6) anoutstanding mortgage on the marital home in the amount of $100,000; (7) a parenting agreement,signed by both parties, granting custody of the two children to Denise and outlining a visitationschedule for Raymond; and (8) a report compiled by a clinical psychologist pursuant to section604(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604(b) (West2000)).

Because of the numerous stipulations, the only issues that remained for trial were theclassification and distribution of marital property and debt. Denise was the first to be called totestify in support of her petition for dissolution. She proceeded to testify until the trial courtcalled a recess for lunch. During the recess, the parties and their attorneys conducted settlementnegotiations. The negotiations proved fruitful. After returning from lunch, the parties informedthe trial court that an agreement had been reached. A prove-up hearing was then conducted andthe terms of the settlement agreement were read into the record by the parties' attorneys. Theprincipal terms of the agreement were: (1) both parties waived maintenance; (2) Denise would beawarded Raymond's severance plan, pay all taxes and penalties and use the funds to pay allmarital debts, including the outstanding balance on Raymond's Discover credit card; (3) anydebts not covered by the severance package plan would be the debt of the party incurring it; (4)Raymond would be liable for the outstanding balance on his Visa credit card; (5) the maritalhome would be awarded to Raymond via a vendor's lien with no interest and payable uponDenise's remarriage, the sale of the home by Denise, Mitchell reaching 18 years of age or earlierat Denise's discretion; (6) Denise would be awarded the marital home subject to the vendor's lien,the mortgage and all taxes; (7) Denise would receive $20,802 from her defined benefit plan,$5,000 from her 401K plan and $63,148 from Raymond's defined benefit plan; (8) the remainingbalances of Denise's and Raymond's retirement accounts would be divided 50-50; and (9)Raymond would pay $800 a month in child support and half of Amanda's and Mitchell'sparochial school tuition.

Denise's attorney advised the trial court that a written judgment would be prepared,signed by the parties and subsequently presented for the court's review. The trial court thenordered counsel to submit the proposed judgment within 28 days along with other documents. On November 1, 1999, a "Stipulation and Request to Hear Uncontested Cause" was filed andsigned by both parties, stipulating "that all matters pending between [them] ha[d] been settled,agreed and compromised, freely and voluntarily after full disclosure." A proposed judgment wassubmitted to the trial court for entry on November 24, 1999, and a hearing was held on the samedate. At the hearing, Raymond had retained yet another attorney, Jeffrey Vollen, to representhim. However, Mr. Vollen was not present at the hearing and failed to file an appearance. Instead another attorney, Peter Regulski, appeared on Raymond's behalf. Because Mr. Regulskiwas not professionally affiliated with Mr. Vollen and had similarly not filed an appearance, thetrial court refused to entertain any of Mr. Regulski's arguments. Raymond and his attorney ofrecord, Nicholas Spina, were present, however. Mr. Spina acknowledged Raymond's interest inobtaining new counsel. The trial court then asked Raymond if he had anything that he wanted toaddress and Raymond responded, "[o]ther than I want to change my lawyer, no." Based on theabove, the trial court reserved entry of the judgment and stated that it would review the proposedjudgment and the trial transcript prior to making a determination.

On December 10, 1999, the trial court entered judgment incorporating the propertysettlement agreement that had been reached between Raymond and Denise in open court onOctober 12, 1999, the "Stipulation and Request to Hear Uncontested Cause" dated November 11,1999, and the subsequent written judgment. A copy of the judgment was submitted toRaymond's attorney of record, Mr. Spina, for Raymond's signature. Raymond refused to sign thejudgment. On December 17, 1999, Mr. Vollen filed his appearance and a motion to vacate theproperty settlement agreement. In the motion to vacate, Raymond alleged that he did notauthorize Mr. Spina to negotiate a marital settlement agreement on his behalf and he did notunderstand that a marital settlement agreement was being negotiated, nor did he agree to theprovisions of the marital settlement agreement. Raymond further alleged that if he did in factengage in conduct that indicated his assent to the property settlement agreement he did so underthe duress of his attorney, Mr. Spina. Lastly, Raymond alleged that the provisions of thesettlement agreement were unconscionable.

Denise and Mr. Spina filed responses to the motion to vacate. A hearing was held onApril 20, 2000. Both parties' attorneys had an opportunity to present their arguments before thetrial court. The trial court requested the transcript, a copy of the motion to vacate and legalauthority and reserved its ruling until after it had an adequate opportunity to review thesematerials. On April 26, 2000, the trial court entered an order denying Raymond's motion tovacate. This appeal followed.

I. Judgment of the Trial Court

In his first argument, Raymond alleges that the trial court erred in incorporating theproperty settlement agreement into its judgment. Raymond claims that: (1) his attorney enteredinto the agreement without his consent and the trial court failed to inquire at the prove-up hearingwhether he did in fact consent to the agreement; (2) the parties intended that the settlementagreement be reduced to writing and signed by the parties; and (3) the trial court's judgmentcontains terms that vary from those stated by the parties' attorneys at the prove-up hearing. Although Raymond frames the issue in this case as "whether the trial court erred by incorporatinga marital settlement in its judgment," the issue is whether such an agreement was ever reached.

"'Whether a contract exists, its terms and the intent of the parties are questions of fact tobe determined by the trier of fact. [Citation].'" In re Marriage of Kloster, 127 Ill. App. 3d 583,586 (1984). We will not reverse the judgment of the trial court unless it is contrary to themanifest weight of the evidence. Kloster, 127 Ill. App 3d at 586.

A. Lack of Consent

Raymond initially contends that his attorney entered into the property settlementagreement without his consent and without the trial court inquiring at the prove-up hearingwhether Raymond did in fact consent to the agreement. Raymond claims that he left in themiddle of the settlement discussions and that while he was gone his attorney entered into theproperty settlement agreement without his consent. Raymond also claims that he informed hisattorney immediately after the prove-up hearing that he was not agreeing to the settlement. Raymond further claims that had he been asked by the trial court whether he agreed to the termsof the property settlement agreement his answer would have been emphatically "no."

"Generally, a client is bound by the acts or omissions of his attorney within the scope ofthe attorney's authority." In re Marriage of Marr, 264 Ill. App. 3d 932, 935 (1994). "While anattorney's authority to settle must be expressly conferred, the existence of the attorney of record'sauthority to settle in open court is presumed unless rebutted by affirmative evidence thatauthority is lacking." Szymkowski v. Szymkowski, 104 Ill. App. 3d 630, 633 (1982). In asituation "where a party is present in court and permits his attorney to act on his behalf, the partymay not subsequently deny his attorney's apparent authority." Marr, 264 Ill. App. 3d at 935.

The record reveals that Raymond was present in court when his attorney entered into theproperty settlement agreement on his behalf. During the course of the prove-up hearing,Raymond did not voice an objection to the agreement, he did not inform the court that hemisunderstood any part of the agreement, and in fact, he participated in the recitation of theagreement by clarifying terms regarding waiver of maintenance and the division of certainproperty, namely, which automobile and which of several paintings he was to receive. Furthermore, at the hearing concerning the proposed judgment, Raymond had the opportunity tocontest the agreement. However, when Raymond was asked by the trial court whether he hadanything that he wanted to address, he responded "[o]ther than I want to change my lawyer, no."

While in cases such as this, where an oral property settlement agreement is placed on therecord, perhaps a better procedure would have been for the trial court to call both parties to thestand and question them concerning their capacity and desire to consent to the agreement,nevertheless, the trial court's failure to ask Raymond whether he consented to the agreement isnot dispositive here. Because he sat silently and permitted his attorney to enter into the propertysettlement agreement on his behalf, Raymond is estopped from denying the existence of theproperty settlement agreement. Marr, 264 Ill. App. 3d at 935; Szymkowski, 104 Ill. App. 3d at633. We therefore find that Raymond's argument is without merit.

B. Reduced to Writing

Raymond next contends that there was no valid settlement agreement because the partiesintended that the settlement agreement be reduced to writing and signed by the parties, andneither party signed the written agreement.

Section 502(a) of the Illinois Marriage and Dissolution of Marriage Act encouragesparties to enter into written or oral agreements "containing provisions for disposition of anyproperty owned by either of them, maintenance of either of them and support, custody andvisitation of their children." 750 ILCS 5/502(a) (West 2000). The fact that the parties enteredinto an oral agreement that is not subsequently reduced to writing does not alter the bindingeffect of the oral agreement. Marr, 264 Ill. App. 3d at 935. "[W]here the parties have assentedto all the terms of the oral agreement the mere reference to a future written document does notnegate the existence of a present contract * * *." Ceres Illinois, Inc. v. Illinois Scrap Processing,Inc., 114 Ill. 2d 133, 143 (1986).

Here, there is no evidence in the record of the parties' supposed intention that a signedwritten agreement be a condition precedent to the binding effect of the oral agreement. At trial,Denise's attorney stated that she would "prepare the written judgment, have the parties sign it,with Mr. Spina's approval" and then submit the written judgment to the court for entry. Thecourt requested that counsel submit the proposed judgment order in 28 days. What Raymond ischaracterizing as a "written agreement" is not actually a separate agreement, but a typed copy ofthe judgment. See In re Marriage of Carlson, 186 Ill. App. 3d 635, 638 (1989) (the parties didnot intend to reduce the oral agreement to writing, but intended to present a typed copy of thejudgment to the trial court). As such, Raymond's argument is without merit.

C. Varying Terms

Raymond also contends that the trial court's judgment contains terms that vary from thosestated by the parties' attorneys at the prove-up hearing. Specifically, Raymond alleges that thejudgment states that Denise's pension plan has a value of $30,000 whereas at the prove-uphearing the parties' attorneys stated that Denise's pension plan had a value of $20,800. Accordingto Raymond, this error resulted in Denise receiving "approximately $10,000 more than a 50-50split of the marital portions of the pension plan of the parties."

Typically an issue is waived on appeal unless a timely objection is made at trial and isspecifically raised in a written posttrial motion. People v. Reid, 136 Ill. 2d 27, 38 (1990). Oursupreme court has outlined two purposes behind the waiver rule. "First, timely objections allowthe circuit court to promptly correct any error. [Citation.] Second, a party who fails to objectcannot obtain the advantage of receiving a reversal by failing to act." Reid, 136 Ill. 2d at 38. While we recognize that under the peculiar facts of this case Raymond could not have objected tothe varying valuation of Denise's pension plan in the judgment until after trial, we neverthelessfind that he has waived the issue on appeal.

At trial, a stipulation was entered valuing Denise's pension plan at $28,200. However,when Denise's attorney recited the terms of the oral settlement agreement at the prove-up hearingthe attorney either misstated the value of the pension plan at $20,800 or the court reportercommitted an error in transcription. Raymond possibly failed to object to this discrepancybecause of a transcription error. The proposed judgment incorporating the property settlementagreement was then prepared by Denise's attorney. The proposed written settlement agreementcontained yet another variance, valuing Denise's pension plan at "approximately $30,000." Raymond failed to object to this valuation at the hearing on November 24, 1999, concerning theentry of the proposed judgment.

More significant is Raymond's failure to raise the issue specifically in his written posttrialmotion. In his motion to vacate, Raymond stated only that the agreement awarded Denise herpension plan valued at $30,000. This statement alone is not enough to preserve the issue onappeal. See People v. Pace, 225 Ill. App. 3d 415, 432 (1992) ("[c]atch-all arguments in post-trialmotions do not preserve unspecified claims of error on appeal"). Because Raymond failed toobject to the variance in the judgement concerning the valuation of Denise's pension plan, byposttrial motion or otherwise, we deem the issue waived.

Based on the above, we find that the parties entered into a valid, enforceable maritalsettlement agreement.

II. Denial of Motion to Vacate

In his second argument, Raymond alleges that the trial court erred in denying his motionto vacate the judgment for dissolution of marriage incorporating the property settlementagreement. In support of his argument, Raymond claims that the settlement agreement was"hastily arranged," "unfair" and a product of his attorney's "coercion."

"When a party seeks to vacate a property settlement incorporated in a judgment ofdissolution of marriage, all presumptions are in favor of the validity of the settlement." In reMarriage of Gorman, 284 Ill. App. 3d 171, 180 (1996). A settlement agreement is not typicallysubject to appellate review because an agreed order "is a recordation of the agreement betweenthe parties and * * * not a judicial determination of the parties' rights." In re Haber, 99 Ill. App.3d 306, 309 (1981). However, "[a] settlement agreement can be set aside if it is shown that theagreement was procured through coercion, duress or fraud, or if the agreement isunconscionable." Gorman, 284 Ill. App. 3d at 180.

A. Unconscionability

Raymond's claims that the settlement agreement was hastily contrived and unfair raisequestions of unconscionability. "'"[F]airness" and other similar standards * * * have beenreplaced by the standard of unconscionability.'" In re Marriage of Foster, 115 Ill. App. 3d 969,971 (1983), quoting Ill. Ann. Stat., ch. 40, par. 502, Historical & Practicing Notes, at 400 (Smith-Hurd 1980). "Unconscionability exists where there is '"an absence of a meaningful choice on thepart of one of the parties together with contract terms which are unreasonably favorable to theother party.'" [Citations.]" In re Marriage of Steadman, 283 Ill. App. 3d 703, 709 (1996). Thefact that an agreement "'merely favors one party over another does not make it unconscionable.[Citation.]'" Gorman, 284 Ill. App. 3d at 181. "To rise to the level of being unconscionable, thesettlement must be improvident, totally one-sided or oppressive." Gorman, 284 Ill. App. 3d at182.

There are two types of unconscionability: (1) procedural unconscionability, which"involves impropriety during the process of forming a contract that deprives a party of ameaningful choice;" and (2) substantive unconscionability, which "relates to situations where aclause or term in a contract is allegedly one-sided or overly harsh." Bishop v. We Care HairDevelopment Corp., 316 Ill. App. 3d 1182, 1196 (2000). Raymond does not allege that the termsof the marital settlement agreement were "totally one-sided or oppressive." He alleges only theprocedural claim that the steps leading to the formation of the agreement deprived him of ameaningful choice. Raymond argues that the parties reached the agreement in an atmospheresufficiently hostile and coercive to cause him to be "deprived [of his] day in court." Specifically, Raymond claims that the settlement agreement was "hastily arranged" in thatafter 13 years of marriage the settlement agreement was reached over a lunch break. However,the number of hours spent negotiating is not a "per se formulation of unconscionability."Steadman, 283 Ill. App. 3d at 710. Rather, significance lies in the fact that the parties negotiatedat "arm's length with the aid of counsel." Steadman, 283 Ill. App. 3d at 710.

Here, the case had been in the trial court for nearly two years when a final settlement wasreached. The "negotiations over lunch" that resulted in the property settlement agreement werenot the first negotiations into which the parties had entered. Indeed, the record reflects at leasttwo prior years of settlement negotiations. The record further reflects that at trial the partiesentered into numerous stipulations regarding the value of their assets and debts. As a result, theonly unresolved issue for trial and thus subject to settlement was the nature and disposition of theparties' property. During the negotiations leading to the ultimate resolution of this issue bysettlement, both parties were represented by counsel.

Raymond now urges this court to consider his affidavit avowals that he became upset andleft in the middle of the negotiations, that he disavowed the agreement his attorney entered intowhile he was gone, that he refused to sign the proposed agreement and that he ultimately retainedalternate counsel.⁽¹⁾ "It is well established that determinations by the trier of fact as to thecredibility of parties are given great deference." In re Marriage of McHenry, 292 Ill. App. 3d634, 641 (1997).

In this case, the trial court conducted a hearing on Raymond's "motion to vacate maritalsettlement agreement." Both parties' attorneys were allowed to argue. During the hearing thefollowing exchange took place:

"MR. VOLLEN [Raymond's attorney]: My client's position is that he neveragreed to the terms of the agreement that were announced to the Court, that hetold his lawyer Mr. Spina, at lunch that he would not agree to the terms, that hetold Mr. Spina after the purported agreement that was announced to the Court hetold -

THE COURT: You have the transcript with everything on the record? Idon't know if I accept that. These proceedings were outside of the Court, thematter was settled and we completed it at that time. The matter was settled." (Emphasis added.)

Despite this exchange, the trial court considered Raymond's motion to vacate, Denise'sand Mr. Spina's responses, the transcript and legal authority prior to making its determination. Asubsequent hearing was held on April 26, 2000. At this hearing the court stated, "I reviewed yourargument and have gone over the transcript completely. Counsel, we had done part of the trial. After lunch the matters changed. We entered prove up at that time. I find no basis, Counsel, toupset that judgment." The record does not support a determination that the trial court erred in itsassessment of Raymond's credibility. Rather, the record reflects that the parties negotiated atarm's length while represented by counsel. Steadman, 283 Ill. App. 3d at 710. Raymond's claimof unconscionability must therefore fail.

B. Coercion

Raymond next argues that, assuming he did enter into an oral settlement agreement, hedid so because his trial counsel coerced him into settling his case. Coercion includes "'theimposition, oppression, undue influence, or the taking of undue advantage of the stress ofanother, whereby that person is deprived of the exercise of her free will.'" In re Marriage ofGorman, 284 Ill. App. 3d at 180, quoting In re Marriage of Flynn, 232 Ill. App. 3d 394, 401(1992). Because stress is common in dissolution proceedings, stress alone is not enough. In reMarriage of Flynn, 232 Ill. App. 3d 394, 401 (1992). The person asserting coercion bears theburden of proving it by clear and convincing evidence. Gorman, 284 Ill. App. 3d at 180.

In his motion to vacate, Raymond specifically alleges that his trial attorney, Mr. Spina,advised him "that he had no alternation [sic] but to accept the terms of the marital settlementagreement." According to Raymond, "Mr. Spina advised [him] that he had done everythingwhich could be done and that [he] had to accept the agreement." Mr. Spina filed a response toRaymond's motion to vacate alleging that an agreement had been reached with the consent of allparties. Mr. Spina further alleged that Raymond "knew, understood and consented" to thesettlement agreement. Similarly, Denise filed a response to Raymond's motion to vacateasserting that Raymond entered into the settlement agreement "willingly and with full knowledgeof the contents of the agreement."

"It is the function of the circuit court to weigh the evidence, determine the credibility ofthe witnesses, and to resolve any conflict in their testimony." People v. Daniels, 272 Ill. App. 3d325, 334 (1994). Raymond's conduct at trial and at the prove-up hearing supports Denise's andMr. Spina's assertions that he entered into the marital settlement agreement willingly andknowingly. Although Raymond's affidavit directly contradicts those of Denise and Mr. Spina,the trial court's comments at the hearing on the motion to vacate and the subsequent hearingclearly demonstrate that it found Raymond's affidavit incredible.

There is ample evidence in the record to support the trial court's determination that themarital settlement agreement was neither unconscionable nor the result of coercion on the part ofRaymond's trial attorney. Indeed, Raymond does not deny he willingly signed the "Stipulationand Request to Hear Uncontested Cause," stipulating that "all matters pending between [him andDenise had] been settled, agreed and compromised, freely and voluntarily after full disclosure." Raymond has failed to present any evidence, let alone clear and convincing evidence, that hisattorney coerced him into entering into the property settlement agreement. Gorman, 284 Ill.App. 3d at 180.

It is probable that Raymond had a change of heart following the prove-up hearing andsubsequently decided that he wanted to have the agreement set aside. However, "a settlementagreement incorporated into a judgment for dissolution will not be vacated based on a merechange of heart of one of the parties." In re Marriage of Morris, 147 Ill. App. 3d 380, 395-96(1986). For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNULTY and TULLY, JJ., concur.

1. While Raymond did obtain Mr. Vollen to represent him on his "motion to vacate maritalsettlement agreement," Raymond never fired his trial attorney, Mr. Spina. The appearance filedby Mr. Vollen on December17, 1999, only states that Mr. Vollen was representing Raymond as"additional or trial counsel" and not "substitute counsel." There is no evidence in the record thatMr. Spina withdrew his appearance as attorney of record for Raymond.