{ "id": 3384384, "name": "CHARLES D. WILKE, Plaintiff-Appellee, v. JOY M. WILKE, n/k/a Joy M. Clutter, Defendant-Appellant", "name_abbreviation": "Wilke v. Wilke", "decision_date": "1977-08-03", "docket_number": "No. 76-1562", "first_page": "438", "last_page": "442", "citations": [ { "type": "official", "cite": "51 Ill. App. 3d 438" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "280 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2910772 ], "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0411-01" ] }, { "cite": "350 N.E.2d 103", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 457", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5380351 ], "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0457-01" ] }, { "cite": "152 N.E.2d 582", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "14 Ill. 2d 295", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770479 ], "year": 1976, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0295-01" ] }, { "cite": "256 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "45 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897094 ], "year": 1958, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0019-01" ] }, { "cite": "302 N.E.2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681617 ], "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0074-01" ] }, { "cite": "352 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 442", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965512 ], "year": 1973, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0442-01" ] }, { "cite": "161 N.E.2d 832", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "17 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334421 ], "year": 1976, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0439-01" ] }, { "cite": "325 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783292 ], "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0241-01" ] }, { "cite": "190 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358431 ], "year": 1975, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0609-01" ] } ], "analysis": { "cardinality": 556, "char_count": 9352, "ocr_confidence": 0.861, "pagerank": { "raw": 1.1764116370463423e-07, "percentile": 0.5876141813673307 }, "sha256": "3b2c92024398cfac7bb445af254991d971bf8fa9fa8d58fed7c2c077301e31a2", "simhash": "1:ae91486c34a59be7", "word_count": 1496 }, "last_updated": "2023-07-14T14:38:54.645684+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES D. WILKE, Plaintiff-Appellee, v. JOY M. WILKE, n/k/a Joy M. Clutter, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SIMON\ndelivered the opinion of the court:\nPlaintiff instituted divorce proceedings against his wife (defendant) in September 1974, alleging mental cruelty. After an ex parte hearing, a divorce decree in plaintiff\u2019s favor incorporating a written property settlement agreement was entered by default in December 1974. Ten months later, defendant filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72), requesting the court to vacate the property settlement and child custody provisions of the decree.\nIn an evidentiary hearing on the section 72 petition, after the close of defendant\u2019s case, the court sustained plaintiff\u2019s motion to deny the petition. Defendant appeals that order. During the section 72 proceedings, the trial court entered an order which provided that half the proceeds of the sale of the marital residence were to be under the joint control of plaintiff\u2019s and defendant\u2019s respective attorneys. Plaintiff has requested an order releasing those funds and interest thereon.\nThe parties, who were married in 1966, had two children, bom in 1966 and 1970. In June 1974, defendant told plaintiff of her friendship with another man. She continued this friendship despite plaintiff\u2019s protestations, and married the man 2 days after her divorce. During the period plaintiff and defendant were discussing the divorce, defendant was not represented by an attorney. Plaintiff\u2019s attorney previously had represented both parties and had been a friend of both.\nPrior to the filing of the complaint, defendant left the marital residence, rented an apartment, and began working as a registered nurse. Shortly afterward, early in October 1974, defendant received a copy of the property settlement agreement she eventually signed. The agreement stated that defendant \u201caccording to her desire\u201d was \u201cnot represented by counsel.\u201d Under its terms plaintiff received the care, custody, control and education of the two children, while defendant, their mother, was given reasonable visitation rights. In addition, the agreement provided that she waived her rights to alimony. Defendant conveyed her title and interest in their home to plaintiff, who then became liable for the mortgage and all other related expenses. The instrument also covered the allocation of their bank accounts or safety deposit boxes, insurance policies and pension plans, savings bonds, furnishings and personal effects, including the two family automobiles.\nDefendant testified that she read the agreement in its entirety and reread portions. After reading the agreement, she called plaintiff\u2019s attorney and spoke to him for about 10 minutes. She said she was concerned with surrendering her future rights to custody of the children, and did not discuss any other aspects of the settlement. According to defendant\u2019s testimony, after the attorney assured her that she could at any time, with or without an attorney, return to court for custody of the children, she read the document through again at least once more and signed it, although she never showed the written agreement to anyone else before signing it.\nDefendant alleges in her section 72 petition that the divorce decree incorporating the property settlement agreement was procured while defendant was not represented by counsel, and after plaintiff\u2019s attorney had misrepresented to her the rights she would have in the future to regain custody of her children. Defendant is not asking that the decree be set aside, but only that the portions relating to child custody and property division be vacated.\nA section 72 petition invokes a court\u2019s equitable powers to prevent the enforcement of a default judgment attended by unfair, unjust or unconscionable circumstances. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613, 190 N.E.2d 348; Leach v. Leach (1975), 26 Ill. App. 3d 241, 244, 325 N.E.2d 19.) The law favors resolution of differences between husband and wife by property settlement agreements incorporated into a decree of divorce, and all presumptions are resolved in favor of their validity. (Guyton v. Guyton (1959), 17 Ill. 2d 439, 444, 161 N.E.2d 832; Bellow v. Bellow (1976), 40 Ill. App. 3d 442, 447, 352 N.E.2d 427; Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 78-79, 302 N.E.2d 201.) However, such agreements will be vacated and set aside if procured through fraud or coercion (Roth v. Roth (1970), 45 Ill. 2d 19, 23, 256 N.E.2d 838) or if not reasonably fair and sufficient in light of the parties\u2019 circumstances and stations in life. James v. James (1958), 14 Ill. 2d 295, 305, 152 N.E.2d 582; Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 462, 350 N.E.2d 103.\nTo be fraudulent, a misrepresentation must consist of a statement of material fact, false and known to be false by the party making it, made to induce the other party to act in reliance on the truth of the statement, and acted upon by the party to whom the misrepresentation was directed. (Roth.) Fraud must be established by clear and convincing evidence. Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 423, 280 N.E.2d 444.\nIn this case, defendant, who bears the burden of proof on the section 72 petition, has failed to establish fraud. Her unverified petition alleges that she had been assured by plaintiff\u2019s attorney that her rights for future custody would not be prejudiced either by the agreement or by the taking of a default. In an affidavit attached to her petition, she contended that she had been told by plaintiff\u2019s attorney that she could obtain a change of custody of the children at a later date, when she had obtained housing and a job. However, her testimony in court did not support the allegation in her petition or substantiate the statement in her affidavit. Her testimony, both on direct and cross-examination, was that the attorney told her she could at any time, with or without an attorney, return to court for custody of the children. We conclude, as the trial court did, that she had no basis for inferring from the attorney\u2019s comment that custody would be granted to her automatically or that the children would be given to her merely on her demand.\nNor does her testimony show that she was informed her agreement to give up custody would have no bearing on any future attempt she might make to change custody. It appears from defendant\u2019s testimony that plaintiff\u2019s attorney told her only that custody when granted is subject to modification, and this is not a misrepresentation. Defendant\u2019s in-court testimony falls short of clearly and convincingly establishing the existence of a fraudulent misrepresentation, and the denial of her section 72 petition was not against the manifest weight of the evidence.\nAlthough defendant seeks relief in her petition because she was not represented by counsel when the settlement was negotiated, the agreement itself expressly stated that she \u201caccording to her desire is not represented by counsel,\u201d and that her husband was so represented. Defendant was an educated woman; at the hearing she testified that she possessed an associate degree from a community college, and a registered nurse\u2019s certificate. She read the property settlement agreement several times in the privacy of her own apartment, over a period of approximately 1 week. Under these circumstances there is no basis for concluding that defendant did not understand or intelligently consent to the terms of the property settlement agreement, despite her not being represented by an attorney, or that she was coerced.\nNot only was the property settlement agreement defendant signed not obtained by fraud or coercion; neither was it proven unreasonably unfair and insufficient in light of the two parties\u2019 circumstances. By its terms, defendant received *500 cash and one of the two family automobiles. She and her husband made provision for their other assets, such as bank accounts, personal property and insurance policies. Although plaintiff received custody of the children and sole title to the couple\u2019s home, which defendant testified was worth *20,000 when purchased and *30,000 when the settlement was reached, he also assumed the financial responsibilities of providing for the children and of paying the mortgage on the house. Defendant does not claim that any misrepresentations were made to her regarding the plaintiff\u2019s assets and there was no showing that the trial court\u2019s finding in the divorce decree that the agreement was \u201cfair and reasonable\u201d was an abuse of discretion. In the absence of such a showing, the trial court\u2019s decision regarding the terms of the property settlement should not be disturbed.\nAccordingly, the judgment of the trial court is affirmed and an order releasing the plaintiff\u2019s funds deposited pursuant to the trial court\u2019s order, and any interest earned thereon, will be entered.\nJudgment affirmed and cause remanded for entry of an appropriate order relating to plaintiff\u2019s funds.\nJIGANTI and McGILLICUDDY, JJ\u201e concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SIMON" } ], "attorneys": [ "Ebers, Metskas, Bjorvik & Kyros & Associates, of Chicago (Earl S. Ebers, Jr., of counsel), for appellant.", "Haffner, Grow, Overgaard & Berghoff, of Chicago (Robert A. Berghoff, of counsel), for appellee." ], "corrections": "", "head_matter": "CHARLES D. WILKE, Plaintiff-Appellee, v. JOY M. WILKE, n/k/a Joy M. Clutter, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 76-1562\nOpinion filed August 3, 1977.\nEbers, Metskas, Bjorvik & Kyros & Associates, of Chicago (Earl S. Ebers, Jr., of counsel), for appellant.\nHaffner, Grow, Overgaard & Berghoff, of Chicago (Robert A. Berghoff, of counsel), for appellee." }, "file_name": "0438-01", "first_page_order": 460, "last_page_order": 464 }