{ "id": 5552044, "name": "In re MARRIAGE OF PATRICK LAWRENCE BECK, Petitioner-Appellee, and JANICE MARY BECK, Respondent-Appellant", "name_abbreviation": "In re Marriage of Beck", "decision_date": "1980-05-05", "docket_number": "Nos. 79-218, 79-441 cons.", "first_page": "976", "last_page": "982", "citations": [ { "type": "official", "cite": "83 Ill. App. 3d 976" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "45 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896694 ], "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0820-01" ] }, { "cite": "77 Ill. App. 3d 716", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3289762 ], "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0716-01" ] }, { "cite": "77 Ill. App. 3d 936", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3289541 ], "pin_cites": [ { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0936-01" ] }, { "cite": "26 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783292 ], "weight": 2, "pin_cites": [ { "page": "244" }, { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0241-01" ] }, { "cite": "45 Ill.2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897094 ], "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0019-01" ] } ], "analysis": { "cardinality": 642, "char_count": 13294, "ocr_confidence": 0.893, "pagerank": { "raw": 2.3791192089283334e-07, "percentile": 0.7966396882598175 }, "sha256": "cbb0a00c0a43f1a74650b3a459e4a333f3d8c29042c5ba629e5f4822dce951b6", "simhash": "1:822200cedc40825b", "word_count": 2272 }, "last_updated": "2023-07-14T21:00:47.613815+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF PATRICK LAWRENCE BECK, Petitioner-Appellee, and JANICE MARY BECK, Respondent-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nJanice Mary Beck (wife) appeals from an order dismissing her petition to vacate a judgment of dissolution of her marriage with Patrick Lawrence Beck (husband), and from an order denying post-decretal relief.\nThe judgment of dissolution, which included a disposition of property rights based upon an alleged oral agreement which the wife disputes, was entered on August 29, 1978. The wife filed a petition to vacate the judgment on November 9, 1978, pursuant to section 72 of the Illinois Civil Practice Act (111. Rev. Stat. 1977, ch. 110, par. 72). She has, essentially, alleged two grounds for granting her petition to vacate the judgment of dissolution: (1) that a fraud was committed upon the court resulting in the entry of the judgment; and (2) that it was manifestly unfair and inequitable.\nFor several months prior to July 1978, the husband and wife had not been getting along and had generally discussed divorce. The wife testified on cross-examination that she had discussed the disposition of the car, the house and the custody of the child with her husband but that they \u201cnever came up with an agreement.\u201d She said the discussion as to the type of settlement she might agree to was \u201c[s]ort of\u201d that she would take the car and he would keep the van providing he made payments on it and he would make mortgage payments on the house which he was going to keep. She also said that she \u201cin a way\u201d agreed to the husband having custody of the child.\nOn July 1, 1978, the husband told the wife that he had an appointment with an attorney whom the wife had never met. At the meeting the attorney (who is not the attorney representing the husband on the appeal) told them that before he started any papers \u201che wanted to make sure that this is what [they] both wanted.\u201d The wife testified that the husband said, \u201cyes it was.\u201d She said \u201cthe next thing I knew papers were being thrown at me to be signed.\u201d She signed them because she \u201cdidn\u2019t know what was going on.\u201d\nThe attorney prepared a handwritten document while the parties were in his office. The document admitted into evidence was addressed to an attorney whom the wife did not know, and contained the following: \u201cDear Mr. [Attorney]:\nPlease represent me in the divorce filed by my husband in Lake County, Illinois. I do not wish to contest the divorce, however, I want the following items in the decree. They are:\nNumber 1, we both waive maintenance (alimony).\n2, I retain my 1972 Oldsmobile.\n3, my husband keeps his 1978 Chevy van and pays the loan on it.\nNumber 4, my husband will retain as his sole property his home and furnishings at 1505 Leslie, Round Lake Beach, and be responsible for the mortgage on it.\nNumber 5, each party will retain their personal effects and clothing.\nNumber 6, my husband shall have custody of our minor child, Jennifer Marie, and I shall have reasonable visitation rights.\nNumber 7, my husband shall pay all attorney\u2019s fees and costs.\u201d (Petitioner\u2019s exhibit No. 2.)\nThe wife signed the document and was given a copy. She and her husband left the attorney\u2019s office and went home together. The wife testified that she at no time made an appointment with the attorney named for her to discuss the divorce and that he at no time contacted her.\nThe attorney in question testified that he had \u201cno understanding with Mrs. Beck whatsoever,\u201d that she never called him and he did not speak with her at any time.\nOn August 9, 1978, the husband and his attorney appeared in court with the attorney designated for the wife for a hearing on the petition for dissolution. The designated attorney advised the court that he represented the wife and was given leave to file an answer to the petition for dissolution. The answer was prepared by the husband\u2019s attorney and had never ben discussed with the wife. In the answer the designated attorney admitted that the parties acquired certain marital and nonmarital property, and that there was no arrangement concerning custody and property. He testified that he did not know whether the wife knew what marital and nonmarital property was at the time the wife signed exhibit No. 2. He also testified that the only information he had at the time of the hearing as to the oral property settlement agreement was that he had been so informed by the husband\u2019s attorney and by the husband. He was paid a fee by the husband.\nAfter hearing the proveup by the husband the court continued the cause to August 29, 1978, and the judgment was entered on that date.\nThe testimony also showed that the husband and wife had continued to live together until September 6,1978, when the husband forced her to get out. She testified she knew nothing about the court hearing; and that she made several efforts to contact the husband to discuss her being thrown out and with reference to visitation with the minor child. She contacted an attorney at the beginning of October and then, according to her testimony, for the first time found out about the entry of the judgment in August.\nThere was also testimony that the wife received a bed, a dresser and a 1972 Oldsmobile; that she worked as a file clerk and earned $94 per week and did not work prior to that time; that her health was not very good and that she had consulted a physician as to a thyroid problem. In the judgment the husband received a 1978 Chevy van, subject to money owed thereon, as well as the marital home and furnishings, subject to mortgage, and was also given custody of the minor child. The judgment also recited that both parties waived maintenance and the husband would pay all attorney\u2019s fees and costs. The husband was self-employed and worked for an electric company. However, no evidence of his earnings or the value of property was adduced.\nFollowing the dismissal of the wife\u2019s petition to vacate the judgment, the wife filed a subsequent motion to vacate that order and petitioned for attorney\u2019s fees. The trial court denied the motion to vacate its prior order and ordered the husband to pay $250 in attorney fees. The trial court also denied the wife\u2019s motion for a temporary restraining order and a stay of judgment pending appeal.\nAgreements to settle property rights, \u201cif fairly made and in good faith,\u201d will be enforced; but they will \u201cbe set aside and vacated for fraud or coercion practiced by either party, or if contrary to any rule of law, public policy or morals.\u201d (James v. James (1958), 14 I11. 2d 295, 305.) A petition filed under section 72 of the Civil Practice Act may appropriately be pursued to vacate or modify a decree which has been procured through the fraud of either party. (Roth v. Roth (1970), 45 Ill.2d 19, 23.) \u201cThe section 72 remedy * 0 * is principally designed to give relief to those whose interests are inequitably treated before a trial court, \u00b0 (Leach v. Leach (1975), 26 Ill. App. 3d 241, 244.) Where a court is led by one of the parties to believe an agreement has been reached and there has been none, a fraud has been perpetrated on the court. (Leach v. Leach (1975), 26 Ill. App. 3d 241,245.) One test of materiality of a representation alleged to be fraud upon the court is a determination whether the court would have approved the settlement had it known the facts. (Semmens v. Semmens (1979), 77 Ill. App. 3d 936,941.) Under the Illinois Marriage and Dissolution of Marriage Act \u201cconditions that justify the reopening of a judgment under the laws\u201d permit the revocation or modification of provisions as to property disposition. Ill. Rev. Stat. 1977, ch. 40, par. 510(a).\nApplying these principles to the facts before us, we conclude that the trial court erred in dismissing the wife\u2019s section 72 petition.\nThe determination of the trial court that a settlement agreement had been voluntarily entered into is against the manifest weight of the evidence. The letter which the husband\u2019s attorney prepared and which the wife signed was addressed to any attorney designated by her husband\u2019s attorney and whom she did not know. The letter does not clearly amount to a final property settlement agreement by its terms. It purports to be an expression of terms the wife wanted to appear in any judgment to be entered. The wife testified that -she believed she was merely signing a preliminary agreement and that she would be contacted by her attorney before any papers were to be drawn up. She testified that nothing was explained to her as \u201cif he ever wanted to sell the house if I get anything out of the house or if I get anything out of any property that we own.\u201d At any rate it is undisputed that the husband\u2019s attorney did not say anything to the wife with regard to her rights in the property, and did not explain to her the difference between marital and nonmarital property. The record does not show clearly what rights were explained to the wife regarding custody of the child. The attorney who was designated to represent her prepared the answer to the dissolution petition without any inquiries made to the wife regarding its contents. At no time during the entire course of the dissolution proceedings did the wife\u2019s attorney ever speak with her regarding the petition for dissolution or the handwritten agreement. The wife\u2019s attorney did not know whether, at the time she signed the handwritten agreement, the wife knew what marital and nonmarital property was. The answer to the petition for dissolution which he filed indicated that no agreement existed for custody or visitation rights at the time of its filing.\nMoreover, testimony at the dissolution hearing indicated that the wife\u2019s representative received his information that there had been an acquiescence to the provisions of the letter from information he received from the husband or the husband\u2019s attorney \u201coutside the corridor\u201d just prior to the dissolution hearing.\nThe record of the proceedings supports the view that the judge proceeded under the belief that the wife\u2019s attorney did, in fact, represent her and that she was agreeing to the items noted in her letter with finality when, in fact, the wife had not been contacted.\nThe apparent unfairness of the purported agreement, which the trial court characterized as a \u201cbad deal,\u201d enhances the likelihood that the court would not have accepted the supposed settlement if it had been fairly apprised of the facts at the time.\nIt it also evident that the wife acted with reasonable diligence in protecting her rights. Her testimony that she was not told at any time about the court hearings or entry of judgment stands unrefuted. She was forcibly evicted from her home by her husband approximately one week after the dissolution judgment had been entered. Although she waited approximately one month prior to seeking legal advice which led to her filing the petition, we cannot conclude that she acted without reasonable diligence under all the circumstances.\nThe circumstances which were not made known to the court call for an additional comment. The practice of one spouse\u2019s attorney selecting and designating an attorney for the other, the preparation of the appearance and the signing of the authorization for such representation without the spouse\u2019s consultation with the selected attorney, can only lead to inequities in most cases. This is particularly true when, as here, one spouse is not present at the prove up. We condemn the procedure,\nThe order of the trial court which allowed the wife\u2019s attorney\u2019s fees in the amount of $250 and which the wife claims is inadequate is, however, affirmed. The allowance, pursuant to section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 508(a)) was within the sound discretion of the trial court. In re Marriage of Pedersen (1979), 77 Ill. App. 3d 716, 720.\nThe main thrust of the wife\u2019s section 72 petition and the argument made on her behalf at the hearing was that she was without the benefit of independent counsel and that therefore the purported property settlement agreement was unconscionable and void. No-allegations were made or evidence adduced tending to show that grounds for dissolution were not proved. There is thus no basis upon which to vacate that portion of the August 29 judgment dissolving the marriage. We therefore affirm that part of the trial court\u2019s order dismissing the section 72 petition insofar as it sought to vacate the dissolution. However, we reverse the dismissal of the wife\u2019s petition as to all other issues and remand the cause to the trial court with directions to conduct further hearings limited to the issues of property division, maintenance, and custody. (See Harris v. Harris (1977), 45 Ill. App. 3d 820, 824.) The wife\u2019s claim that the trial court erred in denying the motion for a temporary restraining order and for a stay pending appeal is moot.\nAffirmed in part, and reversed and remanded in part with directions.\nWOODWARD and NASH, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SEIDENFELD" } ], "attorneys": [ "John D. Kightlinger, of Meinhardt & Kightlinger, of Arlington Heights, for appellant.", "William G. Rosing, of Rosing, Carlson and Magee, of Waukegan (Stephen G. Applehans, of counsel), for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF PATRICK LAWRENCE BECK, Petitioner-Appellee, and JANICE MARY BECK, Respondent-Appellant.\nSecond District\nNos. 79-218, 79-441 cons.\nOpinion filed May 5, 1980.\nJohn D. Kightlinger, of Meinhardt & Kightlinger, of Arlington Heights, for appellant.\nWilliam G. Rosing, of Rosing, Carlson and Magee, of Waukegan (Stephen G. Applehans, of counsel), for appellee." }, "file_name": "0976-01", "first_page_order": 998, "last_page_order": 1004 }