Marriage of Broday, In re
| Decision Date | 22 December 1993 |
| Docket Number | 1-91-2730,Nos. 1-91-0429,s. 1-91-0429 |
| Citation | 195 Ill.Dec. 326,256 Ill.App.3d 699,628 N.E.2d 790 |
| Court | United States Appellate Court of Illinois |
| Parties | , 195 Ill.Dec. 326 In re the MARRIAGE OF Albert J. BRODAY, Petitioner-Appellant, and Victoria J. Broday, Respondent-Appellee. |
Roderick E. MacRae and Errol Zavett of Davis, Friedman, Zavett, Kane & MacRae, Chicago, for petitioner-appellant.
Gary E. Dienstag of Springer, Casey, Dienstag & Devitt, P.C., and Jay A. Schiller, Chicago, for respondent-appellee.
Plaintiff Victoria Broday (Victoria) filed an "Amended Petition for Relief from the Judgment of Dissolution of Marriage" (Amended Petition) pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) on grounds that her separation agreement (Separation Agreement) with her former husband Albert Broday (Albert) denied her an equitable share of various marital and non-marital assets and by its terms was unconscionable. The trial court granted the Amended Petition, vacating the property settlement portion of the judgment for dissolution of marriage (Judgment).
Victoria's attorney subsequently filed a petition for attorney fees for work performed in conjunction with the section 2-1401 petition. The trial court granted this petition in part and ordered Albert to pay or reimburse Victoria for 75% of her fees.
Albert appeals the trial court's orders granting Victoria relief from the Judgment and the award of attorney fees, and argues that the trial court erred: (1) in vacating the Judgment where the Separation Agreement could not be deemed unconscionable or where there is no proof that the instrument was procured by fraud, duress or coercion; and (2) in granting Victoria attorney fees since she has the financial ability to pay her own fees and her attorney failed to provide an appropriate accounting of his services rendered for these proceedings.
We reverse the trial court's order vacating the property settlement provisions of the Judgment and affirm the order granting Victoria reimbursement of a portion of her attorney fees.
On February 18, 1968, Albert Broday married Victoria. Albert was 37 years old, had been married before and had one child from that marriage. Victoria was 25 years old, had been married before and had one child from her former marriage whom Albert adopted and who is now an adult.
When Albert married Victoria he owned two insurance businesses, Briar Insurance Agency, Inc. (Briar Insurance) and Albert J. Broday Insurance Agency, Inc. Eleven years before the marriage, Albert transferred his Briar Insurance corporate shares into an inter vivos trust. Albert used Briar Insurance funds to form two subsidiary corporations, Briar Financial Service, Inc. and Briar Services, Inc. His insurance business peaked at the beginning of the marriage when gross sales approximated five million dollars, and thereafter declined so at the time of the divorce in 1987 gross sales exceeded one million dollars. In 1986, Albert listed his net worth in a credit application provided to a bank as $2,071,500.
Albert's unhappiness with the marital relationship apparently stemmed from Victoria's decision to spend time pursuing a career in business. In the mid-1980's, Victoria participated in two businesses which produced and coordinated trade shows. In 1986, Victoria's income amounted to $23,200, of which $16,000 came from her business as a salary and $7,200 constituted her housekeeping allowance.
Albert first expressed his marital discontent to Victoria in 1985, again discussed this subject in 1986 and asked for a divorce in late August 1987. At that time, Albert informed Victoria that he had retained an attorney to represent him and suggested that she retain separate counsel. Albert's attorney was a friend of both parties and had previously served as counsel to both. A friend of Victoria's also suggested that Victoria seek separate counsel. Victoria refused this very sound advice.
Albert and Victoria met twice with Albert's attorney in September 1987. At the first meeting, the attorney informed Victoria that he represented Albert and suggested that she retain separate counsel. Once again, Victoria refused to seek an attorney to represent her.
Before the second meeting, Albert's attorney mailed a copy of the proposed Separation Agreement to each party which stated that the parties acknowledged that each had been fully informed of the property of the other and fully disclosed their respective income and assets. Albert's attorney believed the Separation Agreement listed all of the marital and non-marital assets of both parties and so informed Victoria. The attorney also informed Victoria that "she really in a situation like this needed her own lawyer." Again, Victoria refused to seek counsel.
Both parties signed the Separation Agreement at the end of the second meeting held on September 25, 1987.
On October 1, 1987, Albert's attorney filed the "Joint Petition for Dissolution of Marriage." At the prove up on October 8, 1987, Albert was represented by counsel and Victoria appeared pro se. When the court asked Albert if the Separation Agreement disposed of all the marital and non-marital property, he answered in the affirmative. When the court questioned Victoria at length as to her decision to appear pro se, she stated that she had chosen not to have an attorney and that she was "satisfied" with this decision and that it was rendered without force or coercion. Victoria also acknowledged that she understood the substance of the provisions of the Separation Agreement, had sufficient time to decide whether it conformed to her desires, and considered it fair and reasonable. Victoria declined the trial court's offer to ask any questions, assumedly to the court, to Albert or to his attorney.
The Judgment entered November 5, 1987 incorporated the Separation Agreement as well as a "Separate Instrument" specifying the distribution of assets agreed upon by the parties. Victoria was to receive or retain $24,000 in cash, $93,000 worth of assets from her business, her Individual Retirement Accounts valued at $12,000 and maintenance payable at the rate of $2,180.56 per month over six years.
Victoria's Amended Petition alleged that Albert failed to disclose or value marital and non-marital assets which, if known to her, would have prevented her from signing the Separation Agreement. The most significant assets allegedly omitted from the Separation Agreement concerned Albert's profit sharing plan valued at $72,480, and the Albert J. Broday Management Company. Albert established this Company in 1980 as an investment pool for Briar Insurance and its subsidiaries. These businesses owned 93% of the Company, and Albert personally held a seven percent ownership interest valued at $45,000.
On January 8, 1991, the trial court entered an order vacating the Judgment on grounds that the Separation Agreement "appears unconscionable."
Victoria's attorney petitioned for attorney fees for 289 hours of work performed in conjunction with the section 2-1401 petition from April 24, 1988 to November 15, 1990. Although Victoria agreed to pay her attorney $175 per hour for his services rendered in or out of court and without a contingent fee arrangement, she had paid him only $2,500 for transcripts of proceedings.
On July 9, 1991, the trial court entered an order granting the petition for fees in the amount of $28,262.50, rather than the $50,575 requested, of which Albert would pay 75%, equal to $21,196. In reaching its decision, the trial court disallowed 130 hours of time as well as fees for services rendered for an earlier section 2-1401 petition which had been dismissed.
Victoria argues that Albert committed fraud by misrepresenting the extent of his marital and non-marital assets which, if known to her, would have prevented her from signing the Separation Agreement. Such an allegation, if proved, would be appropriate grounds for vacating or modifying the Judgment under a section 2-1401 petition. In re Marriage of Carlson (1981), 101 Ill.App.3d 924, 929-30, 57 Ill.Dec. 325, 428 N.E.2d 1005. To prove fraud, Victoria must show by clear and convincing evidence that Albert intentionally misstated or concealed a material fact which he had a duty to disclose and that she detrimentally relied upon his statement or conduct. (In re Marriage of Travlos (1991), 218 Ill.App.3d 1030, 1037, 161 Ill.Dec. 621, 578 N.E.2d 1267; see In re Marriage of Reines (1989), 184 Ill.App.3d 392, 132 Ill.Dec. 654, 540 N.E.2d 394 ().) For concealment of information to be actionable, it must be such that the silent party intends to deceive the other. In re Marriage of Gurin (1991), 212 Ill.App.3d 806, 813, 156 Ill.Dec. 877, 571 N.E.2d 857, citing Lagen v. Lagen (1973), 14 Ill.App.3d 74, 79, 302 N.E.2d 201.
Victoria claims that she had reason to rely on the Separation Agreement as an accurate and complete listing of Albert's assets based on Albert's statement that he would be "fair" to her in the distribution of marital funds, and Albert's statement to the court that the Separation Agreement disposed of all the marital and non-marital property. Although Victoria claims that she could not have learned of Albert's profit sharing plan in particular since Albert's attorney was unaware of its existence until after the Separation Agreement was signed, this profit sharing plan is specifically mentioned in the Separate Instrument and she had ample time to consider its implications.
A settlement agreement will only be set aside if the misrepresented assets "could not reasonably have been discovered at the time of or prior to the entry of judgment." (Travlos, 218 Ill.App.3d at 1035, 161 Ill.Dec. 621, 578 N.E.2d 1267.) A divorcing party will not be relieved of...
To continue reading
Request your trial
-
Pack v. Maslikiewicz
... ... Accordingly, 144 N.E.3d 61 437 Ill.Dec. 261 defendant has forfeited this argument on appeal. See In re Marriage of Blinderman , 283 Ill. App. 3d 26, 31, 218 Ill.Dec. 544, 669 N.E.2d 687 (1996) ("Failure to object to an expert's qualifications results in a ... App. 3d 117, 125, 207 Ill.Dec. 770, 648 N.E.2d 226 (1995). In other words, the reliance must be reasonable. See In re Marriage of Broday , 256 Ill. App. 3d 699, 703, 195 Ill.Dec. 326, 628 N.E.2d 790 (1993). Generally, the question of whether a plaintiff's reliance was reasonable is a ... ...
-
In re Kane, 2-15-0774
... 2016 IL App (2d) 150774 76 N.E.3d 20 IN RE MARRIAGE OF Gregory Phillip KANE, Petitioner-Appellee, and Heather Ann Kane, Respondent-Appellee (Michael D. Canulli, Appellant). No. 2-15-0774 Appellate ... that the absence of specificity with regard to task and time precludes a finding of reasonableness by the trial court ( In re Marriage of Broday , 256 Ill.App.3d 699, 707, 195 Ill.Dec. 326, 628 N.E.2d 790 (1993) ), we reject Canulli's implicit assertion that the presence of specificity in ... ...
-
In re Lyman
... 27 N.E.3d 126 In re MARRIAGE OF Deborah L. LYMAN, PetitionerAppellant and CrossAppellee and Robert E. Lyman, RespondentAppellee and CrossAppellant. No. 1132832. Appellate Court ... In re Marriage of Broday, 256 Ill.App.3d 699, 705, 195 Ill.Dec. 326, 628 N.E.2d 790 (1993). Courts apply this section with the aim of achieving justice, not to give the ... ...
-
In re Marriage of Thomas
... ... 838, 638 N.E.2d 706 (1994) ... A party seeking fees and costs bears the burden of presenting sufficient evidence from which the trial court can render a decision as to the reasonableness of the expenses requested. In re Marriage of Broday, 256 Ill.App.3d 699, 706, 195 Ill. Dec. 326, 628 N.E.2d 790 (1993) ... Some of the trial court's comments imply that it was awarding Lynn her expenses in part because Paul had not appeared at trial, but the court further stated that the award was appropriate in light of Paul's ... ...