Solano v. Solano (In re Marriage of Solano)

• Decision Date: 08 March 2019
• Docket Number: No. 2-18-0011,2-18-0011
• Citation: 2019 IL App (2d) 180011,429 Ill.Dec. 587,124 N.E.3d 1097
• Parties: IN RE MARRIAGE OF Lisa M. Turano SOLANO, Petitioner-Appellee, and Scott M. Solano, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 180011

124 N.E.3d 1097

429 Ill.Dec. 587

IN RE MARRIAGE OF Lisa M. Turano SOLANO, Petitioner-Appellee, and Scott M. Solano, Respondent-Appellant.

No. 2-18-0011

Appellate Court of Illinois, Second District.

Opinion filed March 8, 2019

Daniel F. Konicek and Amanda J. Hamilton, of Konicek & Dillon, P.C., of Geneva, for appellant.

Anthony Sammarco and William J. Stogsdill, of Stogsdill Law Firm, P.C., of Wheaton, for appellee.

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 In this dissolution proceeding, petitioner, Lisa M. Turano Solano, filed a petition for a declaratory judgment on the enforceability of a premarital agreement (the Agreement) between her and respondent, Scott M. Solano. Following a hearing on the petition, the circuit court of Du Page County found the Agreement enforceable. Respondent appeals, contending that the trial court erred by (1) denying his request to postpone the hearing on the Agreement so that he could seek additional discovery, (2) conducting an unfair hearing, and (3) determining, on the evidence allowed at the hearing, that the Agreement was enforceable. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On December 9, 2000, the parties signed the Agreement, and on December 31, 2000, they were married.

¶ 4 The Agreement stated that each party had been represented by separate counsel and was advised "that in the absence of [the] Agreement each party could acquire rights in the other's property during marriage and upon termination of their marriage during life or as a surviving spouse." It specified that each party had read the Agreement and its attachments and was "entering into [the] Agreement voluntarily, with full knowledge of its legal and economic effect." The Agreement also stated:

"Schedule A and the attached Exhibit set forth substantially all of [respondent's] assets and liabilities as of December 1, 2000, valued as of that date. Schedule B and the attached Exhibit set forth substantially all of [petitioner's] assets and liabilities as of December 1, 2000, valued as of that date. Both Exhibits are attached and made a part of this Agreement. Values shown are based on market quotes, appraisals or estimates, as indicated. [Respondent and petitioner] recognize that certain assets are difficult to value and agree that the Exhibits are adequate disclosures of the other's assets, liabilities and income, and the parties expressly waive any right to disclosure of the property of the other party beyond the disclosure provided. The parties further agree that it is desirable to and they shall keep the information contained in this Agreement confidential."

¶ 5 The Agreement provided criteria for distinguishing between marital property and individual property. The Agreement also specified certain items of property as petitioner's individual property, namely "[t]he Family Business Property, listed in Exhibit C, whether now owned by [petitioner] or in the future owned by [petitioner]." The Agreement provided that, if the parties' marriage should terminate for a reason other than the death of a party, neither party would have a claim to the individual property of the other.

¶ 6 Schedules A (respondent) and B (petitioner), referenced in the preceding quote, were attached to the Agreement. Each schedule stated that an exhibit was attached thereto that set forth "the approximate value of [the party's] assets and liabilities" as of December 1, 2000. Attached to Schedules A and B were the corresponding Exhibits A and B. However, on each of the exhibits, in the space for "Assets," was written, "None."

¶ 7 Schedule B had a second attachment, namely the "Exhibit C" referenced in the Agreement. Exhibit C specified certain business interests to be classified as "Family Business Property" and, therefore, as petitioner's individual property.

¶ 8 In July 2017, petitioner filed her petition for dissolution of the marriage. She relied on the Agreement as settling the parties' property classification issues. In his response to the petition, respondent alleged that the Agreement was unenforceable.

¶ 9 In August 2017, petitioner filed a demand that respondent specify in a bill of particulars the grounds on which he was challenging the enforcability of the Agreement.

¶ 10 In October 2017, respondent answered the demand. Respondent claimed that the Agreement was unenforceable because (1) "[t]he disclosure in Schedule B and Exhibit B states ‘none’ when the Petitioner owned extensive assets and property that were not properly disclosed to the Respondent," (2) respondent "was not informed of the legal effect of his signing the Agreement and the waiving of his rights thereunder," and (3) the Agreement was "unconscionable and unfair."

¶ 11 On November 6, 2017, petitioner filed her petition for a declaratory judgment that the Agreement was enforceable. Petitioner relied on section 7 of the Illinois Uniform Premarital Agreement Act (Act) ( 750 ILCS 10/7 (West 2016) ), which governs the enforceability of premarital agreements. The Act is the Illinois version of the Uniform Premarital Agreement Act (Uniform Act), which was drafted in 1983. See Unif. Premarital Agreement Act, 9B U.L.A. 369 (1983). The Act applies to any premarital agreement executed on or after January 1, 1990. 750 ILCS 10/11 (West 2016). Section 7(a) of the Act provides in relevant part:

"(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or

(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party." 750 ILCS 10/7(a) (West 2016).

Petitioner observed that a challenge under section 7(a) will fail, regardless of the adequacy of the parties' asset disclosures, if the challenger fails to show that he "did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided[.]" Id. § 7(a)(2)(ii). Petitioner noted that the Agreement contained a waiver of the kind contemplated in section 7(a)(2)(ii), namely that the parties "agree[d] that the Exhibits are adequate disclosures of the other's assets, liabilities and income, and the parties expressly waive[d] any right to disclosure of the property of the other party beyond the disclosure provided."

¶ 12 In his response to the petition, respondent elaborated on his challenge to the Agreement. First, he claimed that he "did not retain counsel to review [the Agreement] and that the counsel listed therein did not inform him of the legal ramifications of the terms and conditions of [the Agreement]." Second, respondent asserted that petitioner failed to make an adequate disclosure of her assets prior to the parties' execution of the Agreement. According to respondent, the parties agreed not to disclose any assets on Exhibits A and B, because they intended that only petitioner's family business interests set forth in Exhibit C would be deemed individual property. Respondent asserted that petitioner's representation of "None" in the space for assets on Exhibit B was "false and misleading." He claimed that he "relied upon the Petitioner's inaccurate disclosure as both parties were not excluding assets from the other or from the marriage, [except for] the family bakery business ownership provided in Exhibit C, and the Petitioner's reliance at this time on the failed disclosure appears to rise to the level of concealment." Respondent asserted that he "did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the Petitioner, especially in consideration of the vast property that it is believed the Petitioner holds an interest in concerning her family's business enterprises."

¶ 13 In an attached affidavit, to support his assertions as to the parties' mutual understanding in executing the Agreement, respondent averred in part:

"4. Approximately 30 days prior to the marriage ceremony, Lisa presented to me [the Agreement] for execution. Lisa and I discussed [the Agreement] on several occasions prior to the execution of [the Agreement] on December 9, 2000. I did not draft [the Agreement] or the Exhibits provided therein, said documents were drafted by Lisa's attorney and provided to me.

5. The discussions concerning the [A]greement were focused on [the Agreement] being in place to provide that Lisa would maintain her ownership interest in the family bakery businesses and I would not receive stock or other ownership interest in the family bakery business due to our marriage.

6. Lisa and I further discussed our income at that time and Lisa informed me that she was a salaried employee with the family bakery business and that as part of our marriage, any money that she earned or received from the family bakery business was going to be used and shared by the parties, akin to marital income. In furtherance of her statements, throughout the marriage, Lisa's income and monies received from the family bakery businesses, in any form provided, [were] used by Lisa and I for our family and in the acquisition of marital property.

7. Prior to the execution of the Premarital Agreement, and prior to the execution of Exhibit[s] A and B, Lisa and I discussed that neither of us were providing a detailed disclosure of personal property to the other as both of us agreed that all of our personal property was going to be shared and combined together and used by both [of] us as a

...