In re the Marriage of: JACQUELINE AMMAR, Petitioner-Appellee, v. ESSAM A. AMMAR, Respondent-Appellant.
No. 1-13-3722
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
September 30, 2015
Modified upon denial of rehearing January 13, 2016
2015 IL App (1st) 133722-U
JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment.
THIRD DIVISION. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
¶ 1 Held: (1) There was no merit to the husband‘s argument that a marital settlement agreement should be vacated as procedurally unconscionable because the husband was on “psychostimulant medication” at the time he entered into the agreement, the agreement was “hastily contrived” and he did not review it, and because the court and his counsel coerced him into entering into the agreement. The husband did not present any objective evidence at the motion to vacate that he was on any medication at the time the marital settlement agreement was reached and the husband‘s sworn testimony at the prove-up indicated he reviewed the marital settlement agreement with his counsel, that he understood he was not required to accept the circuit court‘s recommendation, that no one coerced him, and that he accepted the agreement. (2) There similarly was no merit to the husband‘s argument that the marital settlement agreement
BACKGROUND
¶ 2 Respondent-Appellant Essam Ammar appeals the judgment entered by the circuit court on a marital settlement agreement in the dissolution proceedings below, raising numerous arguments regarding alleged “fraudulent concealment,” procedural unconscionability, and substantive unconscionability of the marital settlement agreement and the judgment. We address this appeal as a summary order because we unanimously determine that the disposition is clearly controlled by case law (
¶ 4 The parties were married on November 2, 1985. Petitioner Jacqueline Ammar filed her petition for dissolution of marriage on January 25, 2010. The parties engaged in extensive litigation and discovery for more than three years in divorce proceedings which resulted in the entry of a judgment on February 14, 2013 for dissolution of marriage incorporating a marital settlement agreement. The court made its recommendation, which was largely represented by the settlement agreement entered into by thе parties after the pre-trial and settlement conference with
¶ 5 Under the terms of the marital settlement agreement, both Essam and petitioner Jacqueline waived maintenance, agreed that each party was responsible for their own health insurance, medical expenses, and life insurance policies. Jacqueline was awarded the parties’ real estate located at 900 N. Lake Shore Drive, Unit 709, Chicago, Illinois. This property was acquired by Essam before the marriage but became the marital home. At the time of the judgment, Jacqueline had $14,494 in retirement funds, and Essam had $231,686 in retirement funds in his individual retirement account (IRA). The marital settlement agreement awarded Jacqueline half of Essam‘s retirement funds, less half of Jacqueline‘s retirement funds. The parties agreed to be responsible for their respective debts. Jacqueline‘s debts totaled $205,548.31, and Essam‘s debts totaled $51,126.
¶ 6 One of the provisions of the marital settlement agreement provided, in relevant part:
“Except for the distribution and rollover to JACQUELINE pursuant to this Article, ESSAM is enjoined from taking any distributions or loans from his IRAs until any and all judgment and or liens on Unit 709 pursuant to the terms of this Agreement are satisfied and proof of the release of the liens is provided to JACQUELINE. In addition, except as otherwise set forth in this Agreement, ESSAM is enjoined from taking any loans or
distribution from his IRAs that would result in a balance in his account(s) to be less than $12,000 [sic] until all condominium assessments are paid during the time he lives in Unit 709, the second installment of the 2012 real estate taxes (that are paid in 2013) are paid and ESSAM has vacated the premises and turn [sic] over the keys at the inspection on August 15, 2013.”
¶ 7 Essam initialed every page of the marital settlement agreement and signed it.
¶ 8 At the prove-up hearing, Essam testified that he understood and accepted the agreement, and that he was entering into the agreement freely and voluntarily. Essam also testified that he would cooperate with rolling over the portion of his IRA into Jacqueline‘s IRA as set forth in the marital settlement agreement. After the prove-up hearing, the court entered judgment of dissolution incorporating the martial settlement agreement.
¶ 9 On March 15, 2013, Essam filed a motion to vacate the judgment through new counsel. Essam argued that he was taking psychostimulant medication at the time the marital settlement agreement was reached, the marital settlement agreement was procedurally unconscionable, that he was coerced and under duress by his attorney who pressured him to enter into the agreement, and that the settlement‘s asset division was substantively unconscionable and “wildly unfair.”
¶ 10 The court held a hearing and Essam testified. Essam admitted that the cost and uncertainty of going to trial influenced him to enter into the settlement agreement. Essam did not present any medical evidence regarding his claim that he was on medication, and there was no evidence, other than Essam‘s testimony, that he was under any duress or coercion. The court found that Essam‘s claim about his attorney‘s cоercion was fabricated, and that his claim regarding being on medication was also fabricated and that Essam lacked credibility. The court further found that Essam failed to meet his burden of proving that the condominium on Lake
ANALYSIS
¶ 12 Jacqueline argues initially that this appeal should be dismissed because Essam did not file a proper record on appeal, but Essam filed the certified record on February 10, 2014.
¶ 13 Jacqueline also argues the appeal should be dismissed because Essam‘s brief on appeal violates Illinois Supreme Court Rules 341 and 342. See
¶ 14 We note that Essam‘s statement of facts does not contain citations for all of the facts set forth. See
¶ 15 In our discretion, however, we consider this appeal because it is apparent that the issues are easily disposed of, as the record demonstrates Essam‘s arguments have no merit.
¶ 16 Essam filed a mоtion to vacate the marital settlement agreement within 30 days of the judgment. “[A] property settlement * * * which has been approved by the court and incorporated in the judgment of dissolution[ ] becomes merged in the judgment, and the rights of the parties thereafter rest on the judgment.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 21 (quoting In re Marriage of Hoffman, 264 Ill. App. 3d 471, 474 (1994)). A party may move to vacate a judgment in cases tried without a jury within 30 days pursuant to section 2-1203.
¶ 17 ” ‘A marital settlement agreement is construed in the same manner [as] any оther contract.’ ” In re Marriage of Doermer, 2011 IL App (1st) 101567, ¶ 27 (quoting Blum v. Koster, 235 Ill. 2d 21 (2009)). But, a marital settlement agreement “is not typically subject to appellate review because an agreed order ‘is a recordation of the agreement between the parties and *** not a judicial determination of the parties’ rights.’ ” In re Marriage of Gibson-Terry, 325 Ill. App. 3d 317, 325 (2001). As opposed to an order of the court, which is a judicial determination on an issue, a marital settlement agreement represents the parties’ own agreement as to their rights. In re Marriage of Tutor, 2011 IL App (2d) 100187, ¶ 13. “When a party seeks to vacate a settlement incorporated into a judgment for dissolution of marriage, all presumptions are in favor
¶ 18 To vacate a marital settlement agreement, the movant must show that the agreement is unconscionable. ” ’ “[F]airness” and other similar standards * * * have been replaced 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 & Practice Notes, at 400 (Smith–Hurd 1980)). The Illinois Marriage and Dissolution of Marriage Act (
¶ 19 There are two types of unconscionability: (1) procedural unconscionability, which “involves impropriety during the process of forming a contract thаt deprives a party of a meaningful choice;” and (2) substantive unconscionability, which “relates to situations where a clause or term in a contract is allegedly one-sided or overly harsh.” In re Gibson-Terry & Terry, 325 Ill. App. 3d 317, 326 (2001) (quoting Bishop v. We Care Hair Development Corp., 316 Ill. App. 3d 1182, 1196 (2000)).
¶ 20 The determination of whether a valid settlement occurred is in the trial court‘s discretion and we will not reverse a court‘s decision unless it is contrary to the manifest weight of the evidence. Kim v. Alvey, Inc., 322 Ill. App. 3d 657 (2001). The trial court abuses its discretion when its “ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20 (2000). We will reverse the
¶ 21 Essam argues the judgment incorporating the marital settlement agreement should be vacated because the marital settlement agreement is both (I) procedurally unconscionable and (II) substantively unconscionable. Jacqueline argues (III) that Essam‘s appeal is frivolous, and not taken in good faith but, rather, to harass the wife and cause unnecessary delay or increase in the cost of litigation, thereby justifying sanctions pursuant to Illinois Supreme Court Rule 375(b) (
I. Procedural Unconscionability
¶ 23 Essam first argues that the marital settlement agreement was procedurally unconscionable because it was “hastily contrived” and procured through coercion, fraud, and duress. Essam argues that his previous counsel coerced him into signing the mаrital settlement agreement, and that he was in a “mental state of total collapse at the time of the prove-up,” and maintains that he did not see the marital settlement agreement that was emailed to him that morning until he returned home after signing the agreement and after the prove-up.
¶ 24 The Illinois Supreme Court has defined procedural unconscionability as “some impropriety during the process of forming the contract depriving a party of meaningful choice.” Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 23 (2006) (citing Razor v. Hyundai Motor America, 222 Ill. 2d 75, 100 (2006)). Coercion and duress have 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.” In re Marriage of Flynn, 232 Ill. App. 3d 394, 399 (1992). See also In re Marriage of Tabassum, 377 Ill. App. 3d 761, 775 (2007).
¶ 25 We first find there is no objective evidence in the record that Essam was on any alleged psychostimulant medication at the time the marital settlement agreement was reached. Essam presented only his own self-serving testimony at the hearing on his motion to vacate and did not present any medical evidence to corroborate his contention that he was under the influence of medication at the time he entered into the marital settlement agreement.
¶ 26 Our review of the record also establishes that there is no evidencе, let alone clear and convincing evidence, that would rise to the level of coercion, fraud or duress to justify vacating the settlement agreement. Essam‘s sworn testimony, under oath, was that he reviewed the marital settlement agreement and there was no indication by Essam of any coercion, fraud or duress in his testimony. Essam was questioned by his counsel regarding reviewing the marital settlement agreement early that morning with his counsel:
“Q: And then the Levin/Brend firm worked until 11:00 o‘clock last night drafting this [marital] settlement agreement, correct?
A: That‘s what you said.
Q: Which was e-mailed to me, correct, and then I forwarded the document to you?
A: This morning, early in the morning. Yes.
Q: Before 6:00 a.m.?
A: Yes.
Q: Okay. So we were on the phone from 6:00 a.m. on – A: Yes.
Q: -- and then you came down in person and we went through it again?
A: Yes.
Q: And then we came over to court, correct?
A: Yes.
Q: And then we did some more work here in court over the language?
A: Yes.
Q: Then we went back to the Levin and Brend firm, correct?
A: Yes.”
¶ 27 Essam also acknowledged, upon questioning by his counsel, that he had the opportunity to reviewed the entire marital settlement agreement with his counsel, and that he accepted it:
“Q: You have had the opportunity to review the entire agreement; is that correct?
A: Yes.
Q: In fact, as I stated earlier, we were at my office. We put it on the big screen. In fact, you even had your own hard copy to look at, correct?
A: Yes.
Q: Do you believe the terms of this agreement are fair and equitable?
A: I accept it.
Q: Do you believe – And you understand that you are bound by the terms of this agreement; is that correct?
A: Yes. Yes.”
¶ 29 There is also no evidence to support Essam‘s claim that he was coerced by his own attorney into entering the settlement agreement. The case of In re Gibson-Terry & Terry, 325 Ill. App. 3d 317 (2001) is instructive. In the husband‘s motion to vacate, he alleged that he did not authorize his attorney to negotiate a marital settlement agreement on his behalf and he did not understand that a marital settlement agreement was being negotiated, nor did he agree to the provisions of the marital settlement agreement. In re Gibson-Terry & Terry, 325 Ill. App. 3d at 321. But the record revealed that the husband was present in court when his attorney entered into the property settlement agreement on his behalf and during the course of the prove-up hearing the husband did not voice an objection to the agreement, did not inform the court that he misunderstood any part of the agreement, and in fact, participated in the recitation of the agreement by clarifying terms. At the hearing, the husband had the opportunity to contest the marital settlement agreement and he did not do so. In re Gibson-Terry & Terry, 325 Ill. App. 3d at 322-23. The court held that “[b]ecause he sat silently and permitted his attorney to enter into the proрerty settlement agreement on his behalf, Raymond is estopped from denying the existence of the property settlement agreement.” In re Gibson-Terry & Terry, 325 Ill. App. 3d at 323.
¶ 30 Similarly here, during the prove-up hearing Essam testified under oath that he accepted the agreement, and at no point did Essam ever indicate any objection to the agreement or indicate
“Q: Did anyone force or coerce you into entering into this agreement?
A: Absolutely not.
Q: Is your entry into this agreement a free and voluntary act on your part?
A: Yes.
Q: Without coercion by anyone?
A: Yes.”
¶ 31 In its November 26, 2013 order denying Essam‘s motion to vacate the judgment, the circuit court noted “that ESSAM testified at the hearing on his Motion to Vacate that everything he said at the prove-up was true at the time he said it.” The court also noted in its order that Essam “also admitted that the cost of going to trial and the uncertainty of going to trial influenced him to settle on the terms of the MSA [marital settlement agreement].” Although Essam argues that there was no merit to Jacqueline‘s contention regarding his dissipation of assets caused by his large transfers of money to Egypt because those transfers allegedly occurred over 10 years ago, Essam acknowledged in his testimony at the hearing on the motion to vacate that this issue could be a problem if he chose to go to trial. Thus, Essam acknowledged his choice in settling rather than going to trial.
¶ 32 Essam further argues that there was an injunction “hidden” in the marital settlement agreement, prohibiting him from making any withdrawals from his IRA, in contravention of section 12-1006 of the Illinois Code of Civil Procedure, which exempts certain personal
¶ 33 We first note the Essam‘s argument is not well-grounded because the marital settlement agreement incorporated into the judgment in this case is not a judgment in favor of a creditor. Rather, as explained above, a marital settlement agreement that is merged into a judgment is a contract entered into voluntarily by the parties. If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement. In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 21 (citing Chodl v. Chodl, 37 Ill. App. 3d 52, 53 (1976)).
¶ 34 Moreover, there was no concealment of this provision. “Fraudulent concealment,” which may cause property settlement to be vacated, consists of affirmative acts or misrepresentations intended to exclude suspicion or prevent injury. In re Marriage of Palacios, 275 Ill. App. 3d 561, (1995), appeal denied, 165 Ill. 2d 554. There was no affirmative act or misrepresentation. Although Essam argues that this provision was “hidden” in the marital settlement agreement, he testified that his attorney in fact reviewed the marital settlement agreement with him, with both a projection of the agreement and a hard copy of the agreement. At the prove-up, Essam even asked questions to ensure certain changes were made to the agreement. The court noted in its order denying Essam‘s motion to vacate that “Essam exhibited an in depth understanding of the terms and intricacies of the MSA [marital settlement agreement] from memory.” We also note that Essam initialed every page of the marital settlement agreement, include the pages containing this provision enjoining Essam from taking any withdrawals from his IRA until all liens on the Lake Shore Drive condominium and taxes are paid.
¶ 36 It appears that Essam merely had a change of heart concerning the disposition of the Lake Shore Drive condominium to Jacqueline and the fact that Jacqueline would receive half of his IRA. “A court should not set aside a settlement agreement merely because one party has second thoughts.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (1994).
¶ 37 We hold the circuit court did not abuse its discretion in denying Essam‘s motion to vacate the judgment incоrporating the marital settlement agreement based on any of Essam‘s alleged grounds of procedural unconscionability.
II. Substantive Unconscionability
¶ 40 Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act requires the division of marital property upon the dissolution of marriage.
¶ 41 The circuit court rejected Essam‘s argument in his motion to vacate that the marital settlement agreement was substantively unconscionable, noting that Jacqueline assumed $205,000 in debt compared to the $51,000 in debt assumed by Essam, and that Jacqueline waived a dissipation claim of several hundred thousand dollars that Essam had transferred to Egypt. We agree with the circuit court‘s determination and hold that the terms themselves are not substantively unconscionable.
¶ 42 Essam argues that the court erred in barring Essam from presenting any evidence regarding the transfer of $600,000 to Egypt in three transfers in 2001 and 2002, and that Essam allegedly had evidence tracing those funds to non-marital assets. But Essam admits in his brief that he “doesn‘t have any record to present any more regarding the USE of the three separate
¶ 43 Essam also argues he “doesn‘t know the basis on which the trial court made its determination that ESSAM‘s premarital IRA is now marital.” Essam‘s argument regarding the statutory marital versus non-marital nature of his IRA is not a ground for relief because when parties “decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 21 (citing Chodl v. Chodl, 37 Ill. App. 3d 52, 53 (1976)).
¶ 44 Even under statute, marital property is “all property acquired by either spouse subsequent to the marriage.”
¶ 45 Further, while Jacqueline was awarded half of Essam‘s much larger IRA, she also agreed to be solely responsible her own much larger debt. The provision regarding the allocation of half of Essam‘s IRA to Jacqueline is not substantively unconscionable.
¶ 46 The record belies any claim by Essam regarding substantive unconscionability of the marital settlement agreement. At the prove-up Essam was specifically questioned by his counsel
“Q: Do you believe the terms of this agreement are fair and equitable?
A: I accept it.
Q: Do you believe – and you understand that you are bound by the terms of this agreement, is that correct?
A: Yes. Yes.”
* * *
“Q: Do you have any questions regarding any provision of this agreement?
A: Not at the moment.
Q: Okay.
THE COURT: Well this is the moment.
THE WITNESS: Your Honor, I accept it.
THE COURT: Okay.”
¶ 47 Essam is bound by his own sworn testimony at the prove-up where he affirmatively testified that he had the opportunity to review the agreement, had no questions about any provisions, and that accepted the agreement. Essam has no evidence supporting his contentions and has failed to make the required showing to vacate the judgment entered on the martial settlement agreement. The circuit court did not abuse its discretion in denying Essam‘s motion to vacate the judgment of dissolution of marriage incorporating the marital settlement agreement. We find, as did the circuit court, that Essam‘s arguments are fabricated, as they have no support in the record and, in fact, are contradicted by Essam‘s own sworn testimony at the prove-up.
¶ 49 Jacqueline seeks sanctions against Essam, arguing that Essam‘s appeal is meritless, frivolous, and not taken in good faith but, rather, to harass Jacqueline and cause unnecessary delay or increase in the cost of litigation. Jacqueline argues that because of Essam‘s frivolous appeal, the judgment was stayed and he continued to residе in the parties’ residence on Lake Shore Drive that had been awarded to Jacqueline, forcing her to make alternative living arrangements. We agree with Jacqueline.
¶ 50 Illinois Supreme Court Rule 375(b) provides, in relevant part:
“(b) Appeal or Other Action Not Taken in Good Faith; Frivolous Appeals or Other Actions. If, after consideration of an appeal or other action pursued in a reviewing court, it is determined that the appeal or other action itself is frivolous, or that an appeal or other action was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting or defending the appeal or other action is for such purpose, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties. An appeal or other action will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. An appeal or other action will be deemed to have been taken or prosecuted for an improper purpose where the primary purpose of the appeal or other action is to delay, harass, or cause needless exрense. Appropriate sanctions for violation of this section may include an order to pay to the other party or parties damages, the reasonable costs of the appeal or other action, and any
other expenses necessarily incurred by the filing of the appeal or other action, including reasonable attorney fees.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).
¶ 51 We determine that the motion to vacate and this appeal were frivolous because they were not reasonably well-grounded in fact or law and were not taken in good faith but merely to cause unnecessary delay and needless expense and hardship to Jacqueline. We therefore award Jacqueline her attorney fees and expenses for Essam‘s motion to vacate heard in the circuit court below, as well as all her attorney fees and expenses incurred by this appeal. We remand to the circuit court for a hearing on the costs of Jacqueline‘s attorney fees and to enter a judgment for the amount of her attorney fees as sanctions awarded to Jacqueline.
IV. Petition for Rehearing
¶ 53 Essam brings several matters to the court‘s attention on petition for rehearing. First, in this modified order we correct an error, brought to our attention by Essam, and clarify that the condominium on Lake Shore Drive was purchased prior to the marriage, instead of after the marriage. However, this has no bearing on our analysis or on the outcome of this appeal, as the parties agreed in their settlement that the property would be awarded to Jacqueline, and we find no ground to vacate the marital settlement agreement.
¶ 54 Essam also argues in his supplement to his petition for rehearing that in “thumbing through 11 bankers boxes of this case documents,” which we assume is the record on appeal, that he found a quit claim deed transferring the ownership of the condominium to Jacqueline dated February 13, 2013, the day of the trial. Essam argues that the February 13, 2013 prove-up day began with a pretrial conference between the trial court and counsel for the parties, after which the court gave its recommendation, among other things, that the marital property be awardеd to Jacqueline. Essam further argues that the marital settlement agreement was “drafted sometime
¶ 55 This claim was not argued previously by Essam and therefore we will not consider it. Arguments not raised initially in Essam‘s appellant brief are waived and Essam is barred from raising them in his petition for rehearing. See
¶ 56 Essam also argues that this court “overlooked the weight of evidence” of his “total mental collapse at the signing and prove-up of the MSA and the documented telephone calls evidence disputing any claim that the MSA was reviewed by him the early morning of February 14, 2013.” Essam argues that this court erred in stating that, “at the motion, the husband did not present any objective evidence that he was on any medication at the time the MSA was reached.” Essam argues that he was on three medications prescribed by his cardiologist that allegedly have side effects. This does not support Essam‘s previous argument that he was on “psychostimulant
CONCLUSION
¶ 58 Essam has failed to dеmonstrate clear and convincing evidence of either procedural or substantive unconscionability necessary to vacate the judgment incorporating the marital settlement agreement. Rather, all of Essam‘s arguments are thoroughly belied by the record. We conclude that Essam‘s motion to vacate and this appeal were frivolous and not taken in good faith but merely to cause unnecessary delay and hardship to Jacqueline, justifying an award of sanctions pursuant to
¶ 59 Affirmed; sanctions awarded; remanded.