Burchett v. Goncher, s. 1-90-0509

• Decision Date: 20 December 1991
• Docket Number: 1-90-2100 and 1-91-1664,Nos. 1-90-0509,s. 1-90-0509
• Citation: 235 Ill.App.3d 1091,177 Ill.Dec. 220,603 N.E.2d 1
• Parties: , 177 Ill.Dec. 220 Cheryl C. BURCHETT, Plaintiff-Appellee, v. Francis J. GONCHER, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1

603 N.E.2d 1

235 Ill.App.3d 1091, 177 Ill.Dec. 220

Cheryl C. BURCHETT, Plaintiff-Appellee, v. Francis J. GONCHER, Jr., Defendant-Appellant.

Nos. 1-90-0509, 1-90-2100 and 1-91-1664.

Appellate Court of Illinois First District, Fifth Division.

Dec. 20, 1991.

Herbert A. Glieberman, Herbert A. Glieberman & Assoc., Chicago, for defendant-appellant.

Norbert N. Rosenthal, Norbert N. Rosenthal & Assoc., Ltd., Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

Cheryl Burchett (Cheryl) brought a civil lawsuit alleging that Francis Goncher, Jr. (Goncher), defendant, was the father of her daughter Christa. The litigation was settled by an agreement of the parties in the form of an agreed order, which agreed order was approved and entered by the trial court. The facts are undisputed. They are as follows:

On March 11, 1988, Cheryl filed a complaint for paternity alleging that Goncher was the biological father of her minor child, Christa Goncher (Christa), born out of wedlock on December 11, 1987.

On April 29, 1988, the trial court ordered Goncher to submit to a blood test for the purposes of determining the possibility of his paternity of Christa. Test results indicated that Goncher stood a 99.84% chance of fathering Christa. The results further indicated that 99.77% of all other men could be excluded as Christa's natural father. Thus, the testers concluded that "paternity is practically proved."

On November 17, 1989, a pretrial took place with no court reporter present. Both parties had counsel present. After the pretrial conference, the parties negotiated the terms of a final settlement. The terms of the settlement were reduced to the form of an agreed order settling all outstanding issues. The order was approved in writing by each of the parties, and was entered by the trial court judge.

By the terms of the November 17, 1989, agreed order, Goncher was to pay Cheryl the aggregate sum of $3,000 per month for the support of Christa and Heather Goncher (Heather) until the youngest child reaches the age of 19 1/2 or is emancipated, whichever is the first to occur. In addition Goncher was ordered to pay Cheryl $70,000 in satisfaction of child support arrearages accrued since the birth of Christa for her support, all pre/post natal care for Christa which approximated $6,000, and he was to be responsible for all extraordinary medical, dental, optical, and psychological expenses of Christa and Heather. The order further provided that Goncher was to be responsible for all college or trade school expenses for the children as well as $20,000 in attorney fees to Cheryl's attorney.

As of the date of the agreed order Christa was not yet two and no prior support order had been entered. In a previous paternity action, case No. 85 M1 99911, Goncher was ordered to pay $266.67 per month for the support of Heather. On October 11, 1987, this support for Heather was raised to $310 per month. The record contains no evidence or findings as to Goncher's income, Cheryl's income, Christa's financial needs or Heather's financial needs.

On November 22, 1989, five days after the entry of the agreed order of November 17th, Goncher filed a motion to vacate the November 17, 1989, order. In his motion Goncher contended that he had mistakenly believed that the figure recommended by the trial judge was the statutory amount required for the support of two children. In addition Goncher charged that $3,000 represented 50% of his income, rather than 25% as specified in that statute. The trial court found that there had been a unilateral mistake on Goncher's part, but there was no newly discovered evidence, fraud, or coercion and denied the motion on January 12, 1990.

On February 5, 1990, following a substitution of attorneys for defendant, Goncher filed an Emergency Motion to set Aside and Reconsider the court's orders of January 12, 1990, and November 17, 1989, pursuant to sections 2-1203 and 2-1401 of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-1203; Ill.Rev.Stat.1987, ch. 110, par. 2-1401.) In the alternative, Goncher requested the trial court to modify the judgment order of November 17, 1989, pursuant to chapter 40, par. 2516. This motion was based on the alleged unconscionability of the order; the court's failure to take evidence or to make findings as to the needs of the children or their parents' ability to contribute; the failure of the order to allocate the amount between the children; and the provision for arrearages of $70,000 for Christa's support. Cheryl filed a motion to dismiss the 2-1401 motion. On July 5, 1990, the court denied the section 2-1401 motion, ruling that the order of November 17, 1989, was fair and equitable and agreed to by both parties.

Goncher filed two appeals; the first is an appeal from the agreed order of November 17, 1989, and the order of January 12, 1990, denying defendant's motion to vacate the November 17, 1989, order; the second is an appeal from the order of July 5, 1990, denying the section 2-1401 motion. The two appeals were consolidated by this court.

For the following reasons we affirm the decisions of the trial court.

November 17, 1989, order

Goncher argues that his motion to vacate the agreed order should have been granted due to the fact that he agreed to the order because he mistakenly believed the order complied with the guidelines set forth in the Illinois statute relating to child support. (Ill Rev.Stat.1987, ch. 40, par. 505.) He further argues that the November 17, 1989, order is unconscionable.

We are first met with a question of the court's jurisdiction over an agreed order. As a general proposition, a consent decree is not appealable because it does not constitute a resolution of the parties rights but is a mere recordation of their private agreement. (People ex rel. Lampkin v. Brown (1980), 81 Ill.App.3d 869, 37 Ill.Dec. 78, 401 N.E.2d 1171; see also People ex rel. Fahner v. Colorado City Lot Owners and Taxpayers Association (1985), 106 Ill.2d 1, 86 Ill.Dec. 908, 476 N.E.2d 409.) Once a consent decree has been entered it is generally considered to be binding on the parties and it cannot be amended or varied without the consent of each party. (Dunaway v. Storm (1975), 30 Ill.App.3d 880, 334 N.E.2d 825.) However, this is not without exception. A circuit court has potential authority to modify a consent decree if circumstances so warrant. A court of equity does not abdicate its power to revoke or modify its mandate if it is satisfied that what it was doing has been turned through changing circumstances into an instrument of wrong. (Fahner, 106 Ill.2d at 9, 86 Ill.Dec. 908, 476 N.E.2d 409 citing United States v. Swift & Co. (1932), 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1006.) A consent decree can be set aside only by agreement of the parties or upon a showing that it resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the parties bargaining positions, or newly discovered evidence. (Kandalepas v. Economou (1989), 191 Ill.App.3d 51, 54, 138 Ill.Dec. 329, 547 N.E.2d 496; In re Haber (1981), 99 Ill.App.3d 306, 54 Ill.Dec. 790, 425 N.E.2d 1007.) The trial court in the present case potentially had the authority to modify the consent decree, but first it had to determine whether the circumstances warranted the court's modification of the decree.

For the following reasons we find that the trial court properly denied Goncher's motion to vacate the November 17, 1989, order.

Goncher argues that the November 17th order is flawed in every respect. He states that in addition to requiring him to pay approximately half his net income to support two children, the order fails to allocate the money between the children; the order fails to provide for abatement of any support upon the older child's emancipation; the order fails to itemize the financial needs of the children; the order fails to recite the incomes of the parents so that if circumstances change there would be basis for modification; and, finally, the order fails to indicate whether the guidelines were considered or why the support figures deviate substantially from those guidelines.

Goncher argues that section 14 of the Illinois Parentage Act of 1984 (Ill.Rev.Stat.1987, ch. 40, par. 2514) specifies that in determining the amount of any child support award the court shall use the guidelines and standards set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act). Goncher correctly asserts that section 505 of the Act allows the court to order either or both parents to pay an amount that is reasonable and necessary for a child's support. (Ill.Rev.Stat.1987, ch. 40, par. 505.) The Act specifies that the court shall determine a minimum amount of support by using the guidelines, which calls for 25% of the parent's net income for the support of two children. It states that the guidelines shall be applied unless there is reason to deviate. However, at the time of the entry of the agreed order the last sentence of section 505 stated: "The guidelines may be exceeded by the court without express findings, or by agreement of the parties." (Ill.Rev.Stat.1987, ch. 40, par. 505(a)(2).) In the present case the parties entered an agreed order, the court was not asked to make specific findings, nor under the circumstances was there any reason for the trial court to do so. Goncher had counsel present at the time the order was entered and Goncher's acquiescence is apparent by his signature on the face of the order.

At the hearing on the motion to vacate, Goncher's counsel stated that the fraudulent misrepresentation, incompetency and gross disparity in positions were not present in this case. Goncher's counsel went on to state: "however, I did allude to the fact that this particular set of facts may come under the coercion and/or newly discovered facts; tests that are set forth in...