Marriage of Osborn, In re

Citation206 Ill.App.3d 588,151 Ill.Dec. 663,564 N.E.2d 1325
Decision Date14 December 1990
Docket NumberNo. 5-88-0739,5-88-0739
Parties, 151 Ill.Dec. 663 In re the MARRIAGE OF Patricia Victoria OSBORN, Petitioner-Appellee, and Jonathan Vaughan Osborn, Respondent-Appellant.
CourtUnited States Appellate Court of Illinois

Neubauer & Meyer, Fairview Heights, for respondent-appellant.

David A. Campbell, Campbell, Black, Carnine & Hedin, P.C., Mount Vernon, for petitioner-appellee.

Justice CHAPMAN delivered the opinion of the court:

The parties were married in Quebec, Canada, on July 4, 1970. Five days prior to the marriage, Jonathan and Patricia entered into a written marriage contract in Montreal, Canada. The parties moved to Illinois in 1979 and were separated in 1985. Upon separation, Patricia returned to Canada with the parties' four children. On November 26, 1985, she filed a verified petition for dissolution of marriage in the circuit court of Clinton County. The court entered a judgment for dissolution of marriage on June 8, 1988. On July 27, 1988, the court entered its ruling on the issues of the validity of the marriage contract, the appropriate value of Jonathan Osborn's medical practice, child support, division of marital assets, award of attorney fees, medical and transportation expenses for the children, insurance benefits for the children, and visitation. Jonathan filed a post-trial motion addressing these issues. It is from the denial of said motion that Jonathan Osborn appeals.

We first turn our attention to the choice of laws question of whether to apply Canadian law in this case. Jonathan Osborn claims that this court should apply both Canadian and Illinois law in determining if the decision of the trial court was correct. Like Jonathan, Patricia makes general reference to Canadian common and statutory law. While we respect the parties' request to consider Canadian law, we are compelled to remind the parties that it has long been the rule that courts will not take judicial notice of the laws of another country, but they must be alleged and proved as facts. (Shannon v. Wolf (1898), 173 Ill. 253, 260, 50 N.E. 682, 684; Crouch v. Hall (1853), 15 Ill. 264, 266; see also Dempster v. Stephen (1895), 63 Ill.App. 126.) In the case at bar, scant reference is made to Canadian law. Included in the appendix to respondent's brief is a one-paragraph excerpt taken from the Canadian Family Law Reform Act (Que.Rev.Stat. ch. 41 (1978)). Other than references to a few Canadian cases in the parties' briefs and in a memorandum submitted to the trial court, no formal proof of the law of Canada has been submitted. When a party interested in claiming the benefit of a foreign law or statute fails to show by appropriate pleading and proof the status of the law of the place where the contract was made or was to be performed, the courts of the state where the suit is brought will apply the law of the latter state to the contract. (Shannon, 173 Ill. at 260, 50 N.E. 682.) Under the circumstances, we apply the law of Illinois, without consideration of Canadian law, to determine the issues in this case.

In his post-trial motion and on appeal, Jonathan Osborn argues that the court erred in finding the marriage contract to be unconscionable and in refusing to apply the contract in deciding issues of property division. Jonathan contends that Patricia made a judicial admission that the marriage contract settled and disposed of all issues involving property division, thereby resolving those issues.

It is undisputed that Patricia filed a verified petition for divorce on November 26, 1985. Attached to that petition was a copy of the parties' antenuptial agreement. Paragraph 6 of the petition alleges that "with respect to the issues of property division and payment of outstanding debts * * * the parties did on June 30, 1970, enter into a Marriage Contract, which settled and disposed of the issues of property division and debt payment, which would otherwise be issues before this court." In January of 1987, Patricia was granted leave of court to file an amended petition for dissolution of marriage. The amended petition did not include a copy of the marriage contract, nor did it refer to the contract. Patricia argues that although she initially took the position that the marriage contract was applicable to the property division, upon the filing of her amended complaint and throughout the case she has taken the position that the marriage contract is inapplicable to the property division.

When an original pleading is verified it remains a part of the record upon the filing of an amended pleading. Furthermore, the admissions of a party contained in an original verified pleading are judicial admissions and bind the pleader even after the filing of an amended pleading which supersedes the original. (American National Bank & Trust Co. of Chicago v. Erickson (1983), 115 Ill.App.3d 1026, 1029, 72 Ill.Dec. 71, 74, 452 N.E.2d 3, 6; Yarc v. American Hospital Supply Corp. (1974), 17 Ill.App.3d 667, 670, 307 N.E.2d 749, 752.) Notwithstanding these general rules, section 2-605 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-605) provides that verified allegations shall not constitute evidence, except by way of admission. However, this provision refers to admissions of fact, not admissions of law. (Premier Electrical Construction Co. v. LaSalle National Bank (1985), 132 Ill.App.3d 485, 494, 87 Ill.Dec. 721, 728, 477 N.E.2d 1249, 1256.) Jonathan contends that paragraph 6 of Patricia Osborn's verified petition constitutes a judicial admission that the contract is valid and enforceable. Such a theory fails to recognize, however, that the allegations in paragraph 6 are legal conclusions, not factual conclusions. Questions of contractual validity or interpretation are matters of law for the court to decide. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill.App.3d 822, 824, 91 Ill.Dec. 527, 529, 483 N.E.2d 1013, 1015.) Consequently, we find the argument that Patricia Osborn made a judicial admission that the marriage contract is valid is without merit. Based on our finding, we need not address petitioner's allegation that Jonathan Osborn waived on appeal his right to claim a judicial admission was made by the petitioner.

The next issue on the merits is whether the contract entered into by the parties is valid and enforceable. Antenuptial agreements are generally enforceable as long as the contract is entered into with full knowledge and without fraud, duress or coercion. (In re Marriage of Byrne (1989), 179 Ill.App.3d 944, 947, 128 Ill.Dec. 800, 802, 535 N.E.2d 14, 16; Volid v. Volid (1972), 6 Ill.App.3d 386, 392, 286 N.E.2d 42, 47.) In the instant case, Patricia does not allege that the contract was entered into because of fraud, duress or coercion. Rather, she contends that the contract is not valid because the parties did not intend for the contract to be used to divide the parties' property in the event of divorce. Her position is reflected in the trial court's ruling of July 27, 1988, where the court declared that it would not apply the parties' antenuptial agreement in deciding issues of property division. The court found that it was the intent of the parties "to take advantage of Quebec law in dealing with possible creditors and that it was not the intent of the parties to reach a reasoned agreement as to dealing with property in event of dissolution." The court concluded that "it would be unconscionable to apply the agreement herein under the intent and circumstances surrounding the entry of the agreement."

Patricia argues that the language of the contract itself does not conclusively establish that it is an antenuptial agreement. She contends that the document is clearly ambiguous as to its purpose and intent, and that the court properly allowed the admission of parol evidence to demonstrate the true purpose of the contract. To the contrary, we find that the contract is unambiguous and that it clearly delineates a property settlement in the event of divorce. To facilitate an understanding of our holding, the contract is set forth herein:

"MARRIAGE CONTRACT BEFORE Mtre. ERNEST AUGUSTE JAVET the undersigned Notary for the Province of Quebec practising [sic ] at the City of Montreal

APPEARED: JONATHAN VAUGHN OSBORN, residing in the City of Roxboro (Address: 55 11th Avenue) Junior Administrator;

Hereinafter called "the future husband"

OF THE ONE PART:

AND:

PATRICIA VICTORIA MALTBY, residing in the City of Pierrefonds (Address: 5620 Andre Street)

Technician;

Hereinafter called "the future wife"

OF THE OTHER PART:

WHO, in view of the marriage which is shortly to be celebrated between them, have entered into the following Contract, namely:

ARTICLE FIRST. No community of property shall at any time exist between the future consorts. On the contrary, they shall be separate as to property in conformity with Article 1422 and other provisions of the Civil Code of the Province of Quebec.

ARTICLE SECOND. Neither of the future consorts shall be responsible for the debts of the other whether contracted before or after the marriage.

ARTICLE THIRD. The property of the future wife shall include the following:

10. her wedding presents;

20. her wearing apparel, jewellery [sic ] and other personal effects; and

30. all other property identifiable as now being hers.

The wearing apparel, jewellery [sic ] and other personal effects which are in the possession of the future wife at the dissolution of the marriage shall take the place of those she now has without any claim on either side for any excess or deficiency.

ARTICLE FOURTH. The future husband obliges himself to pay all expenses of the household and of the marriage generally, and the future wife shall not be bound to contribute thereto; but she shall have no claim against the future husband for such of her revenues as she may contribute or as have been used for these purposes.

ARTICLE FIFTH. There shall be no dower, the...

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