{ "id": 4266217, "name": "In re MARRIAGE OF CATHY HOUSTON McNEIL, Petitioner-Appellee, and KENNETH KARL McNEIL, Respondent-Appellant.-In re MARRIAGE OF CATHY HOUSTON McNEIL, Petitioner-Appellee, and KENNETH KARL McNEIL, Respondent-Appellant", "name_abbreviation": "In re Marriage of McNeil", "decision_date": "2006-09-26", "docket_number": "Nos. 2\u201405\u20140098, 2\u201405\u20140405 cons.", "first_page": "676", "last_page": "686", "citations": [ { "type": "official", "cite": "367 Ill. App. 3d 676" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "294 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35387 ], "year": 1998, "pin_cites": [ { "page": "723", "parenthetical": "\"where the trial court's discovery order is invalid, a contempt judgment for failure to comply with the discovery order must be reversed\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0720-01" ] }, { "cite": "199 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58943 ], "year": 2002, "pin_cites": [ { "page": "63", "parenthetical": "reversing contempt finding based on violation of invalid discovery order" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0047-01" ] }, { "cite": "183 Ill. App. 3d 18", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2627538 ], "year": 1989, "pin_cites": [ { "page": "22", "parenthetical": "contempt order vacated when trial court erred in entering the violated child support order" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0018-01" ] }, { "cite": "77 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3292503 ], "year": 1979, "pin_cites": [ { "page": "388", "parenthetical": "when a separation agreement involves the welfare and support of children, the court has a duty to ascertain all of the pertinent facts and circumstances and to determine whether the award is fair and equitable" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0383-01" ] }, { "cite": "259 Ill. App. 3d 685", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871454 ], "year": 1994, "pin_cites": [ { "page": "689", "parenthetical": "\"modification of a child support obligation is a judicial function, and the court is obligated in a dissolution proceeding to protect the interests of the children involved\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0685-01" ] }, { "cite": "163 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547406 ], "year": 1987, "pin_cites": [ { "page": "1080-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/1074-01" ] }, { "cite": "162 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509068 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0308-01" ] }, { "cite": "205 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2568789 ], "weight": 6, "year": 1990, "pin_cites": [ { "page": "1096" }, { "page": "1089" }, { "page": "1092" }, { "page": "1095-96" }, { "page": "1095-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/1082-01" ] }, { "cite": "164 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581848 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "1020" }, { "page": "1020-22" }, { "page": "1020-23" }, { "page": "1017" }, { "page": "1017" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/1011-01" ] }, { "cite": "130 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493573 ], "year": 1985, "pin_cites": [ { "page": "313", "parenthetical": "modification of a divorce decree rests in the sound discretion of the trial court, and a court of review will not disturb its findings unless the evidence clearly so requires" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0311-01" ] } ], "analysis": { "cardinality": 945, "char_count": 25443, "ocr_confidence": 0.763, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14291798479370804 }, "sha256": "d20d9b8727cb5321d236ebe4eeae16d297b0ae58a36f79e1651d7cf919edbab2", "simhash": "1:8a8fe8f6f34e9ef4", "word_count": 4098 }, "last_updated": "2023-07-14T20:55:49.400377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF CATHY HOUSTON McNEIL, Petitioner-Appellee, and KENNETH KARL McNEIL, Respondent-Appellant.\u2014In re MARRIAGE OF CATHY HOUSTON McNEIL, Petitioner-Appellee, and KENNETH KARL McNEIL, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nRespondent, Kenneth Karl McNeil, appeals from the circuit court\u2019s orders: (1) denying his motion to reject the terms of a divorce settlement agreement; (2) entering the divorce settlement agreement; (3) finding him guilty of willful contempt for failing to pay child support; and (4) denying his motion for rehearing on the contempt order. For the following reasons, we reverse and remand this cause for further proceedings.\nI. BACKGROUND\nA. Settlement Agreement\nRespondent and petitioner, Cathy Houston McNeil, now known as Cathy McNeil Stein, were married on October 12, 1986. The parties have two children. Petitioner filed a petition for dissolution of marriage on December 10, 1992. The parties executed a marital settlement agreement (agreement) on May 30, 1993, and, on June 29, 1993, a judgment for dissolution of marriage was entered, incorporating the terms of the agreement.\nOn December 23, 2002, petitioner filed a petition for rule to show cause, alleging that respondent failed to comply with the agreement\u2019s terms requiring him to pay child support; health, dental, and life insurance; and uninsured medical expenses, and that respondent owed over $60,000 in support and insurance payments. Petitioner alleged that respondent, a graduate of the Wharton School of Business and Harvard Law School, voluntarily resigned from a salaried legal position and willfully refused to obtain employment necessary to make child support and other payments.\nIn response, respondent admitted that he failed to fully comply with the agreement and that he was in arrears on his payments, but he denied that the arrearage approached $60,000. Moreover, he admitted that he voluntarily resigned from a salaried position, but he explained that he left his employment to begin a divorce mediation practice. Shortly after starting his new business, respondent was injured and immobilized and, ultimately, was unable to successfully start his practice. Respondent, \u201ca practitioner in the field of domestic relations,\u201d focused his efforts on representing parties in domestic relations cases and attempted bartending to supplement his income. Respondent further alleged that he was subject to a federal tax lien and that he was able to pay petitioner only $500 from July 2001 to December 2002. Respondent later amended his response, asserting that he had obtained employment and was a member of Nadler, Pritikin & Mirabelli, LLC, a domestic relations law firm.\nOn August 15, 2003, petitioner filed a petition to amend the dissolution judgment, seeking modification of various terms of the agreement, including respondent\u2019s custody and insurance obligations. On August 5, 2004, prior to the hearing on the return of the rule to show cause, the parties reached a settlement resolving all pending issues. At the proveup hearing, respondent was represented by Enrico Mirabelli, a partner at his law firm. Petitioner, also an attorney, appeared pro se. The settlement terms were read into the record. The settlement provided, in pertinent parts, that: (1) the rule to show cause would be discharged and there would be a finding that respondent\u2019s failure to pay support was not willful and contumacious, but was due to financial and health circumstances beyond his control; (2) respondent\u2019s monthly child support obligations would increase to $1,100; (3) joint custody of the children would remain intact, although certain decisionmaking responsibilities would be reallocated between the parties; (4) respondent\u2019s obligation for all past-due child support, and interest due on the child support, totaled $42,700; (5) respondent would immediately tender $12,700 as an initial payment on the arrearage; and (6) the remaining $30,000 would be paid at a rate of $6,000 per year, on or before December 31 of the year. No interest would accrue on the annual amount, and petitioner would not file any further actions to collect the unpaid balance. If, however, respondent failed to make a payment in a timely fashion, 9% interest would be added to the unpaid balance and the payment plan would be accelerated such that a judgment could be entered against him for the entire unpaid balance and all accrued interest.\nUpon examination at the proveup hearing, respondent testified that, although there was no petition filed to increase child support, he agreed to increase the support to a set amount of $1,100 per month. Respondent further agreed that he would pay $146.70 monthly for health insurance and $18.73 monthly for dental insurance. Respondent acknowledged that he understood each term of the settlement and further testified as follows:\n\u201cQ. Mr. McNeil, have you entered into this agreement freely and voluntarily?\nA. Yes.\nQ. Have I not advised that I have certain defenses that I wanted to present to the judge which may have saved you substantial money?\nA. Yes.\nQ. Notwithstanding that, you said [you] want to agree to a $40,000 arrearage?\nA. That\u2019s right.\u201d\nPetitioner and respondent both testified that they understood that a written order reflecting the settlement terms would be drafted and submitted to the court for entry and that, if the order were drafted to accurately reflect the terms as put on the record at the hearing, the court could enter the order with or without their signatures. Respondent\u2019s counsel presented petitioner with a $12,700 check, drawn on an Enrico Mirabelli Professional Corporation account, as the initial payment on the arrearage.\nOn December 16, 2004, petitioner moved to memorialize the settlement terms as presented to the court on August 5, 2004. The motion included a draft agreed order. On December 28, 2004, the parties appeared before the court for entry of the agreed order modifying the dissolution judgment. That same day, respondent moved to \u201creject or modify the terms of the agreed order,\u201d arguing that the settlement\u2019s support and custody modifications and the payment schedule on the arrearage were unconscionable and not in the children\u2019s best interests. In part, respondent asserted that the increase in his child support obligations was unconscionable because there had been no showing that he could financially sustain the increase and, in fact, he could not meet the revised obligations. The following discussion ensued:\n\u201cTHE COURT: *** [Y]ou both agree then that the revised proposed order is in conformity with the transcript [from August 5] and then if I sign that, that\u2019s the end of that, right? We\u2019re done, I think? You don\u2019t have any objection to the entry? You don\u2019t claim it doesn\u2019t conform in some way, or there is some other problem?\nMR. McNEIL: No, sir. I don\u2019t claim that it doesn\u2019t conform. I only claim that it\u2019s [sic] provisions financial, and with respect to modification of custody and in certain other smaller matters is unconscionable. As soon as this order is entered \u2014 well, since August 5th when we were before the court\u2014\nTHE COURT: Right.\nMR. McNEIL: Judge, I\u2019ve tried to comply with the financial terms of the order and I have been unable to do so. I will be in noncompliance as soon as it is entered.\nTHE COURT: Okay. I mean, but you recognize at least on that day \u2014 and I think that\u2019s the last time I\u2019ve seen you guys. I can\u2019t remember seeing you since.\nMS. McNEIL-STEIN: Yes.\nTHE COURT: On any motions or anything. You both said that that was the agreement\u2014\nMR. McNEIL: Yes, sir.\nTHE COURT: \u2014You had an attorney here, Mr. Mirabelli\u2014\nMR. McNEIL: Yes, sir.\nTHE COURT: So, at least as of that day \u2014 okay. So, I\u2019m going to sign the order and then at least at that point then if you want to seek to modify it, you can start to take some action because otherwise we are kind of \u2014 I\u2019m not really sure where we are here otherwise, okay?\nMR. McNEIL: Okay. Just for the record\u2014\nTHE COURT: Yes. I know. You\u2019ve made it clear.\nMR. McNEIL: I would like to be heard on unconscionability\u2014 THE COURT: Well\u2014\nMR. McNEIL: \u2014before the entry of the order.\nTHE COURT: You agreed to the order on August 5th, right?\nMR. McNEIL: Yes, sir.\nTHE COURT: You guys asked for time to reduce it to writing. It\u2019s now the end of December. And so I\u2019m going to sign this order and make it nunc pro tunc to August 5th and then anything after that, you can do whatever you think you need to do, but I\u2019m going around in a circle the wrong direction here, okay?\u201d\nThe court made no other comments regarding respondent\u2019s motion, and no memorandum opinion denying the motion was entered. The court entered the settlement order, modifying the dissolution judgment, and dated the order nunc pro tunc to reflect an August 5, 2004, date of entry. Respondent did not file a subsequent motion to modify the judgment. Instead, on January 27, 2005, respondent filed a notice of appeal.\nB. Contempt Finding\nOn March 4, 2005, petitioner filed a second petition for rule to show cause, alleging that respondent failed to comply with the agreement, as modified by the August 5, 2004, settlement, and that he failed to pay child support in December 2004 and January and February 2005. At the hearing on the petition, respondent admitted that he was not in compliance with the agreement and agreed that the petition be returnable instanter. Then, at the hearing on the return of the rule, respondent testified that there were two primary reasons for his failure to pay support in compliance with the order. First, respondent explained that the $12,700 payment to petitioner at the August 5, 2004, hearing was a loan from one of his law partners. Respondent agreed to repay the loan by working without compensation; thus, his financial obligations to petitioner were increased while his revenue decreased by $12,700. Respondent testified that, in order to keep his job, he felt he needed to repay the loan to his law firm before paying support. Second, respondent testified that, when he entered the agreement, he was working on a case that occupied an estimated 80% of his time and from which he expected compensation. However, his client\u2019s money was held under an injunction that had not yet been lifted.\nRespondent also explained that members of his firm share expenses, but not revenue. Thus, respondent felt that in order to hold onto his job, he needed to cover his share of firm expenses before paying child support. Nevertheless, as a result of his working on an uncompensated basis and his client\u2019s funds becoming unavailable, he was unable to pay his share of the firm\u2019s expenses in January and February 2005. Accordingly, his employment was to terminate effective March 15, 2005. Finally, respondent testified that he was also in arrears on child support owed to his second ex-wife and that he was forced to give up his apartment.\nThe trial court stated:\n\u201cI do find you in contempt. I find that your failure to pay the child support is wilful. I find this financial situation you\u2019re in is one of your own making entirely; that you\u2019ve chosen to practice law in this fashion. That you have chosen to become employed in a firm where this is how it\u2019s set up as opposed to taking some type of salary employment. So I do find you in contempt.\u201d\nThe trial court stayed the mittimus to provide respondent 14 days to acquire and pay the owed support.\nOn March 21, 2005, respondent\u2019s motion for rehearing was denied. At the hearing, respondent was unable to pay the entire $4,850 he owed petitioner, and the mittimus was served. On April 20, 2005, respondent filed a second notice of appeal.\nII. ANALYSIS\nRespondent argues that, despite his motion and request to be heard on the unconscionability and best interests issues, the trial court considered only one issue at the hearing to enter the order: whether the proposed order conformed with the settlement terms as read into the record on August 5, 2004. Respondent contends that the court erred by denying him an opportunity to be heard on the issues of unconscionability and the best interests of the children before entering the order incorporating the parties\u2019 settlement into the dissolution judgment. We agree and find that the trial court abused its discretion in denying respondent\u2019s motion without considering the unconscionability and best interests issues. See, e.g., In re Marriage of Riedy, 130 Ill. App. 3d 311, 313 (1985) (modification of a divorce decree rests in the sound discretion of the trial court, and a court of review will not disturb its findings unless the evidence clearly so requires).\nSection 502(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/502(b) (West 2004)) provides:\n\u201cThe terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.\u201d (Emphasis added.)\nThe statute anticipates that a court will consider the unconscionability of a settlement agreement upon a motion by one of the parties. Here, the trial court denied respondent\u2019s motion and entered the settlement order without addressing the merits of respondent\u2019s unconscionability and best interests arguments. While we are sympathetic to the time pressures and frustrations faced by trial courts, particularly in the realm of domestic relations, we find that the failure to address the merits of respondent\u2019s arguments was erroneous.\n\u201cA party alleging unconscionability of a settlement agreement must be permitted to present evidence relevant to that agreement ***.\u201d In re Marriage of Smith, 164 Ill. App. 3d 1011, 1020 (1987). In Smith, at a proveup hearing on an oral settlement agreement, the respondent testified that she understood and agreed to the settlement agreement\u2019s terms. Shortly thereafter, she disavowed the agreement and urged the court not to enter the agreement, arguing that its maintenance and monetary awards were unconscionable. The trial court entered the settlement order, noting the respondent\u2019s objection and stating that it found the agreement not unconscionable. The respondent subsequently moved to vacate the order entering the supplemental judgment, again alleging unconscionability and asserting that the financial results of the settlement left her destitute and her ex-husband financially advantaged. The motion to vacate was denied after an evidentiary hearing. The appellate court found that the trial court erred at the evidentiary hearing in excluding as irrelevant evidence that not all assets were disclosed prior to the prove up. Smith, 164 Ill. App. 3d at 1020-22. The court determined that the evidence might have affected the trial court\u2019s unconscionahility finding. The court reversed the orders entering the supplemental judgment and denying the motion to vacate, and it remanded for a new hearing concerning the parties\u2019 relative economic circumstances resulting from the oral settlement agreement. Smith, 164 Ill. App. 3d at 1020-23.\nIn In re Marriage of Burch, 205 Ill. App. 3d 1082 (1990), the petitioner moved to vacate an oral prove up prior to the entry of a dissolution judgment, on the grounds that the property settlement agreement was unconscionable. At a hearing on the motion to vacate, the petitioner asked the court to allow further discovery based on newly discovered information relating to fraud and unconscionahility of the agreement. The trial court denied the motion, stating that it had reviewed the agreement and found that it was not unconscionable. The appellate court held that the trial court abused its discretion in denying the motion without an evidentiary hearing. Burch, 205 Ill. App. 3d at 1096. In doing so, the court noted that \u2018\u2018[d]ocumentary information in support [of the petitioner\u2019s claim] was submitted to the trial court for its perusal, which in and of itself was sufficient to require the court to hold an evidentiary hearing to establish the truth of the allegation.\u201d Burch, 205 Ill. App. 3d at 1089. The court found that the trial court erred in refusing to consider certain evidence in support of the petitioner\u2019s allegations pertaining to unconscionahility. Burch, 205 Ill. App. 3d at 1092. Finally, the court noted that it made no difference that the petitioner\u2019s motion to vacate was made prior to the entry of judgment. \u201cAlthough the case at bar involves a motion to vacate an oral prove up and a hearing on the motion, rather than a post-judgment petition and hearing, pursuant to section 2 \u2014 1401 of the Code of Civil Procedure [(735 ILCS 5/2 \u2014 1401 (West 2004))], the same legal and public policy principles logically apply.\u201d Burch, 205 Ill. App. 3d at 1095-96.\nWe acknowledge that this case does not involve fraud or the failure to disclose assets. Nevertheless, even in Burch and Smith, where the trial courts were reversed, the trial courts either held hearings on the motions to vacate or expressly found that the agreements were not unconscionable. Here, we have neither one. Respondent attached exhibits to his unconscionahility motion, including a comprehensive financial statement pursuant to the court\u2019s local rules, and alleged that the financial terms of the agreement were so oppressive that he was unable to comply. No hearing was held to permit respondent to present evidence regarding the truth of his assertion, nor did the court discuss the agreement\u2019s financial ramifications with respondent during the December 28, 2004, hearing. The trial court\u2019s sole stated reason for denying the motion to reject the order was that respondent had agreed to the terms at the prove up. However, an argument that an agreement is unconscionable necessarily presumes the existence of an agreement. Thus, the trial court\u2019s statement that respondent agreed to the settlement\u2019s terms was nonresponsive to respondent\u2019s contention that the settlement was nevertheless unconscionable. Moreover, we cannot presume that, by entering the order, the court implicitly found that the agreement was not unconscionable or that it was in the children\u2019s best interests. There is no need or basis for such a presumption, because the trial court gave an explicit reason for denying the motion \u2014 the order conformed to the terms as read into the record at the proveup hearing \u2014 that had nothing to do with the unconscionability of the agreement.\nPetitioner contends that the trial court did not err in \u201cfinding that the settlement agreement at issue was not unconscionable.\u201d However, she does not indicate where in the record such a finding was made, except to say that the trial court addressed respondent\u2019s unconscionability argument by pointing out that respondent agreed to the settlement terms at the prove up and was represented by counsel. As discussed above, we do not agree that the trial court\u2019s confirmation that respondent agreed to the terms at the prove up constitutes consideration of whether the terms themselves were unconscionable. In any event, the inquiry into unconscionability requires a two-prong analysis, and the trial court must consider: (1) the conditions under which the agreement was made; and (2) the parties\u2019 economic circumstances resulting from the agreement. See Smith, 164 Ill. App. 3d at 1017. Here, even if the trial court arguably addressed the circumstances under which respondent made the agreement, it did not address the parties\u2019 economic circumstances resulting from the agreement.\nPetitioner likens this case to In re Marriage of Chapman, 162 Ill. App. 3d 308 (1987), where an evidentiary hearing on a motion to vacate was denied as unnecessary because the trial court was thoroughly familiar with the allegations of the motion and extensively involved in the settlement negotiations, the motion was verified, and the court made a finding that the property settlement was not unconscionable when it orally entered the dissolution agreement. Petitioner asserts that the trial court here \u201crecalled\u201d and \u201cwas aware\u201d of certain aspects of this case, including respondent\u2019s arguments, so a hearing was unnecessary. Petitioner does not provide any record citation to support her contentions. Moreover, we find that this case is distinguishable from Chapman. Here, although the motion was verified, the trial court had no integral role in the settlement negotiations and, critically, made no explicit finding that the agreement was not unconscionable.\nPetitioner also asserts that the trial court recommended that respondent file a petition to modify the judgment, because it \u201cwas not buying [respondent\u2019s] argument that the settlement agreement was unconscionable.\u201d We have no way of knowing from the record whether the trial judge was \u201cnot buying\u201d respondent\u2019s unconscionability argument, and we therefore cannot conclude that the reference to filing a petition to modify was in some way a reflection of the trial court\u2019s assessment of the merits of respondent\u2019s arguments. And, while a motion to modify the judgment is an appropriate method for addressing compliance issues (see, e.g., In re Marriage of Steichen, 163 Ill. App. 3d 1074, 1080-81 (1987)), there is no reason why respondent had to wait until after the judgment was entered to move to reject the settlement terms. Burch, 205 Ill. App. 3d at 1095-96.\nFinally, petitioner claims that the settlement terms pertained entirely to the minor children. Petitioner therefore suggests that the unconscionability issue is not properly before the court, because the Act provides that \u201c[t]he terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds *** that the agreement is unconscionable.\u201d (Emphasis added.) 750 ILCS 5/502(b) (West 2004). Petitioner misinterprets the statute. The cited language does not mean that the court cannot find unconscionable an agreement with terms pertaining solely to children. Rather, the Act anticipates consideration as to whether the agreement as a whole is unconscionable and provides that, even if the agreement is not unconscionable, the court may still reject or modify the terms involving children. See, e.g., Smith, 164 Ill. App. 3d at 1017. In any event, this argument does not help petitioner, because the trial court arguably possessed a heightened obligation to address respondent\u2019s argument that the modifications were not in the children\u2019s best interests. See, e.g., In re Marriage of Ingram, 259 Ill. App. 3d 685, 689 (1994) (\u201cmodification of a child support obligation is a judicial function, and the court is obligated in a dissolution proceeding to protect the interests of the children involved\u201d); Weber v. Weber, 77 Ill. App. 3d 383, 388 (1979) (when a separation agreement involves the welfare and support of children, the court has a duty to ascertain all of the pertinent facts and circumstances and to determine whether the award is fair and equitable).\nIn sum, we conclude that the trial court abused its discretion in denying respondent\u2019s motion without considering the merits of his unconscionability and best interests arguments. We reverse the trial court\u2019s August 5, 2004, order entering the settlement agreement and remand this cause to the trial court for the purpose of addressing whether the agreement is unconscionable and in the children\u2019s best interests. Should the trial court find that the agreement is unconscionable or not in the children\u2019s best interests, the court should vacate the August 5, 2004, oral prove up and conduct further proceedings pursuant to section 502 of the Act. If, on the other hand, the trial court concludes that the agreement is not unconscionable and that the modifications are in the children\u2019s best interests, the settlement agreement may be approved by the court and reentered into the dissolution judgment.\nIn light of our conclusion that the settlement agreement was improperly, or at least prematurely, entered, we reverse the order holding respondent in contempt for failing to comply with the order. See, e.g., In re Marriage of Watling, 183 Ill. App. 3d 18, 22 (1989) (contempt order vacated when trial court erred in entering the violated child support order); see also Reda v. Advocate Health Care, 199 Ill. 2d 47, 63 (2002) (reversing contempt finding based on violation of invalid discovery order); In re Marriage of Bonneau, 294 Ill. App. 3d 720, 723 (1998) (\u201cwhere the trial court\u2019s discovery order is invalid, a contempt judgment for failure to comply with the discovery order must be reversed\u201d).\nIII. CONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and the cause is remanded with directions.\nReversed and remanded with directions.\nBOWMAN and BYRNE, JJ., concur.\nThat same day, and before the hearing, petitioner filed a response to respondent\u2019s motion. In her response, petitioner modified the draft agreed order to delete certain procedural provisions to which respondent had objected. Petitioner\u2019s response did not, however, substantively respond to respondent\u2019s unconscionability arguments.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "Kenneth Karl McNeil, of Chicago, appellant pro se.", "Cathy McNeil Stein, of Villa Park, appellee pro se." ], "corrections": "", "head_matter": "In re MARRIAGE OF CATHY HOUSTON McNEIL, Petitioner-Appellee, and KENNETH KARL McNEIL, Respondent-Appellant.\u2014In re MARRIAGE OF CATHY HOUSTON McNEIL, Petitioner-Appellee, and KENNETH KARL McNEIL, Respondent-Appellant.\nSecond District\nNos. 2\u201405\u20140098, 2\u201405\u20140405 cons.\nOpinion filed September 26, 2006.\nKenneth Karl McNeil, of Chicago, appellant pro se.\nCathy McNeil Stein, of Villa Park, appellee pro se." }, "file_name": "0676-01", "first_page_order": 694, "last_page_order": 704 }