author: JUSTICE MURRAY

text:
      In re MARRIAGE OF DIANE ZIRNGIBL, Petitioner-Appellee, and RICHARD ZIRNGIBL, JR., Respondent-Appellant.
    First District (5th Division)
    No. 1—89—3344
    Opinion filed September 30, 1991.
    Rehearing denied January 15, 1993.

      llene E. Shapiro and Kalcheim, Schatz & Berger, both of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Richard Zimgibl, Jr. (Richard), respondent, appeals from portions of an April 17, 1989, dissolution of marriage judgment and an order denying his motion to reconsider the issues generating from portions of the April 17, 1989, order. No brief has been filed on behalf of Diane Zirngibl (Diane) and Diane did not appear at oral arguments.

On appeal Richard raises the following issues for review:

(1) Whether the trial court abused its discretion in finding that Richard had dissipated marital assets;

(2) Whether the trial court abused its discretion by ordering the immediate sale of the former marital home;

(3) Whether the trial court abused its discretion in reserving the issue of Diane’s obligation, if any, to pay child support; and

(4) Whether the trial court abused its discretion in reserving Diane’s right to maintenance subject to review in two years.

The facts underlying this case disclose that Diane and Richard were married on July 5, 1969. They separated on July 13, 1986, at which time Diane left the marital home. Diane filed her petition for dissolution on July 31, 1986. Two children were bom as a result of the marriage: Michael on April 14, 1972, and Mary oh September 16, 1980. Initially Diane had physical custody of Mary, but ultimately custody was transferred to Richard pursuant to a joint parenting agreement. Since September 1, 1987, Richard has borne sole financial responsibility for the children.

Diane worked on and off during the marriage. At the time of the trial, Diane was 41 years old. She was a high school graduate. Diane had no subsequent training in any vocation. In June of 1985, Diane began working at her mother’s tavern on a part-time basis. In September 1986, she began working at the tavern full time. Diane earned a net salary of $180 per week for a six-day workweek. Diane repeatedly contended that the patrons of the bar never left tips.

At the time of the trial Richard was a structural iron worker earning $19.24 per hour. The demand for his services fluctuated based on economic influences, the health of the construction industry and weather conditions. During the previous years, there were periods of time when Richard was unemployed or was between jobs. However, Richard always worked at least 1,000 hours per year as an iron-worker, which is the minimum amount required by the union in order to maintain health insurance and participation in the pension plan.

During the marriage the parties acquired a home located at 3004 W. Columbus Avenue, Chicago, Illinois. Diane claimed the house was worth $60,000. Richard claimed it was worth $43,000.

The parties acquired a joint bank account at the First National Bank of Evergreen Park. The source of these funds was a workmen’s compensation award and a related lawsuit. Immediately prior to the parties’ separation, the account had a $33,306.72 balance. Contemporaneously or immediately subsequent to the separation, Richard began removing the funds from the account. Richard made cash withdrawals. One withdrawal was for $25,000; "withdrawn in $100 bills. By August 26,1987, the account was completely depleted.

Richard had two retirement plans with his union that the value and disposition of are not disputed. IRA accounts in each of the parties’ names had a proximate value of $2,250. The final asset of the parties appears to be a 1985 Volvo that was valued at $10,000.

The trial court conducted the trial on the contested financial issues on June 9, 1988, August 1, 1988, August 10, 1988, and October 3, 1988. Both parties were represented" by counsel. The trial court heard the testimony of each of the parties and considered various trial exhibits submitted by each of them. Closing arguments were heard on October 3, 1988. On March 15, 1989, the court entered its memorandum order setting forth its decision. Pursuant to the “Hunt formula,” the court ordered that the marital portion of Richard’s retirement plans be allocated 60% to Richard and 40% to Diane. The court found that Richard had dissipated $20,000 of marital assets. It awarded the Volvo automobile to Diane as a partial share of the dissipated assets. The court ordered that the former marital home be placed for immediate sale with a broker mutually selected by the parties for an asking price of not less than $43,000 and not more than $60,000. The parties would be required to accept the first offer in excess of $43,000, unless they mutually agreed otherwise. From the gross sales proceeds there would be deducted those sums which are customarily charged incident to a sale, including the outstanding real estate taxes, broker’s commission, title charges and legal fees. Diane would then be paid the sum of $5,000 to compensate her for the dissipation of marital assets. Each party would thereafter be awarded one-half of the remaining net proceeds of the sale. Each party would receive the IRA account in his or her respective name. Diane’s child support obligation to the minor children would be reserved. Diane’s right to receive maintenance from Richard would also" be reserved, subject to review in two years.

On April 17, 1989, the court entered a judgment for dissolution of marriage incorporating its memorandum order. On June 13, 1989, Richard filed a motion to reconsider. Richard contended that the trial court misapprehended the evidence and miscalculated the amount, if any, of the, dissipation of marital property by virtue of his withdrawals from the parties’ joint savings account. He requested that the trial court reconsider its ruling on the division of property. Specifically, he argued that he should be awarded a one-half interest in the former marital home with the provision that it be sold when Mary reaches the age of majority. He further requested that the trial court reconsider its decision relieving Diane of any obligation to pay current child support and reserving her right to seek maintenance subject to review in two years.

On August 14, 1989, Diane filed a motion to reconsider, requesting the court to adjust its allocation of the net proceeds of the sale of the former marital home to fully compensate her for Richard’s dissipation.

On September 20, 1989, the trial judge entered a memorandum order amending his prior decision in part. He awarded Richard the Volvo automobile. He required Richard to pay Diane $15,000 of the net proceeds from the sale of the former marital home in order to compensate her for her one-half interest in the Volvo and to “some what equalize the property dissipated by” him. The court did not disturb its prior rulings reserving child support and maintenance.

We note first that petitioner has failed to file an appellee’s brief. Because the record in this case is clear and the issues may be decided without the aid of an appellee’s brief, we shall decide the appeal on its merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

For the following reasons, we affirm in part and reverse and remand in part.

DISSIPATION

Immediately prior to their separation, the parties had approximately $33,306 in a joint savings account. The funds in the account were the remaining proceeds from a worker’s compensation settlement and another settlement Richard had received as a result of a serious injury on the job. Richard withdrew the funds from the account in cash, which he then hid in the marital home. Richard claims that he used the cash to pay expenses of the household.

The trial court found that of the approximately $35,000 that Richard withdrew from marital bank accounts, Richard must have expended some funds for food, clothing and necessities of life. The court concluded that the income Richard had through employment was insufficent to provide for his and the children’s necessary expenses and inferred that he was required to use an additional $15,000 from the $35,000 he had in his possession. To that extent, the trial court found there was no dissipation. The result was a finding that Richard dissipated $20,000 of marital funds.

Richard’s primary point of contention in this case is that the trial court erred in finding that he dissipated $20,000 of marital assets based on his alleged failure to adequately account for funds he withdrew from the parties’ joint savings account at the First National Bank of Evergreen Park. Richard argues that this finding was a misapplication of the law concerning dissipation, contrary to the manifest weight of the evidence, and hence, an abuse of discretion.

We find In re Marriage of Rai (1989), 189 Ill. App. 3d 559, 565, 545 N.E.2d 446, 449-50, helpful in analyzing this issue. In Rai, the court stated the following:

“Dissipation has been defined as one spouse’s use of marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. [Citation.] *** Whether a given course of conduct constitutes dissipation depends upon the facts of each case. " [Citation.] The explanation given by the spouse charged with dissipation as to how funds were spent requires the trial court to determine his or her credibility. [Citation.] Where the funds are spent for legitimate family expenses, and necessary and appropriate purposes, there is no dissipation. [Citation.] The spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how the funds were spent. [Citation.] If expenditures are not documented adequately by the person charged with dissipation, courts will affirm a finding of dissipation. [Citation.] General and vague statements that funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. [Citation.] Whether there was dissipation is a matter for the trial court’s discretion, and a finding concerning dissipation will not be disturbed unless it is against the manifest weight of the evidence.”

See also In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 1053, 569 N.E.2d 1097.

Where a party has dissipated assets, the court may charge the amount dissipated against his or her share of the marital property so as to compensate the other party. In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676, 680; In re Marriage of Block (1982), 110 Ill. App. 3d 864, 870, 441 N.E.2d 1284.

The trial court found that Richard failed to account for his expenditure of $20,000 in funds with “clear and specific evidence.” Further, the trial court found that Richard was not a credible witness. Generally a reviewing court will not disturb the trial court’s determination of credibility because the trial court has a unique opportunity, which cannot be reproduced from the cold inanimate record, to observe and judge the witness’ demeanor and credibility. (Szesny v. Szesny (1990), 197 Ill. App. 3d 966, 557 N.E.2d 222; In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 28, 500 N.E.2d 612, 616.) A reviewing court will not overturn a trial court’s determination of credibility unless it appears contrary to the manifest weight of the evidence. In re Marriage of Wescott (1987), 163 Ill. App. 3d 168, 178, 516 N.E.2d 566, 570; In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 155, 544 N.E.2d 1284.

The determination that a trial court abused its discretion does not turn upon whether the reviewing court agrees with the trial court’s distribution of assets, but whether the trial court acted arbitrarily without the employment of conscientious judgment. (Head v. Head (1988), 168 Ill. App. 3d 697, 702, 523 N.E.2d 17, 21.) An abuse of discretion occurs only where no reasonable person could take the view adopted by the trial court. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d at 31, 500 N.E.2d 612.) We cannot say that no reasonable person could take the view adopted by the trial court in this case. We do not find that the trial court abused its discretion in finding that Richard dissipated $20,000 of marital funds. Accordingly, we affirm the trial court’s finding that Richard dissipated $20,000.

Richard further argues that the trial court committed reversible error in denying admission of three ledger sheets into evidence. The ledger sheets were a summary of Richard’s expenditures by check. Diane’s counsel did not want the document admitted as she did not necessarily agree with the classification of the checks. When discussing the admission of the summary documents, the trial judge stated:

“I’d like to be able to leave the attorneys with the task of deciding whether or not the summary in some way — -that the summary does reflect the check[s] that were written. If the parties cannot agree through their attorneys, then I will go through the checks myself.”

In light of the trial judge’s comment that he would review the checks himself if the summary document was not admitted into evidence, we do not find any error in denying the admission of the ledger sheets.

SALE OF THE MARITAL HOME

The trial court ordered the immediate sale of the former marital home. Citing In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126, and In re Marriage of Calisoff (1988), 176 Ill. App. 3d 721, 531 N.E.2d 810, the trial court commented that Diane is entitled to obtain from the marriage a meaningful sum of cash with which to begin her new life.

Richard argues that the trial court’s order requiring the immediate sale of the former marital home was a misapplication of the governing statute and an abuse of discretion. Richard argues that ordering the immediate sale of the marital home would undermine the welfare and stability of the two minor children and that he should have been awarded exclusive possession of the former marital residence until Mary’s eighteenth birthday, at which time he could sell the home and compensate Diane for any alleged dissipation.

As Richard argues, the court in Calisoff did not address the issue of the desirability of the custodial parent residing in the martial home. However, the Lee court stated:

“The primary objective of the courts in fashioning an equitable division of property is to provide adequate support for the children. The second objective is to dissolve the marriage and place the parties in a position from which they can begin anew.” Lee, 78 Ill. App. 3d at 1133.

In Lee, this court found that the trial court had considered the relevant circumstances of each spouse when the division of property was to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children. The wife was awarded custody of the children and permitted to reside, without an obligation to pay rent, in the apartment that had been the marital residence. The trial court preserved the husband’s one-half interest in the apartment building and only barred the husband from filing an action for partition until the youngest child reached majority. Lee, 78 Ill. App. 3d at 1134.

In the instant case, the former marital home, commonly known as 3004 W. Columbus Avenue, Chicago, Illinois, has a present fair market value of between $43,000 and $60,000 and is the only marital asset of substantial value. Richard, who has the physical custody of the parties’ two children, alleges that he was desirous of providing the children with a stable and consistent environment. He sought an award of exclusive possession of the home until Mary’s eighteenth birthday to accomplish this goal.

• 6 Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)) enumerates some of the relevant factors which the trial court is required to consider in the division of marital property in just proportion. Among these factors are:

“(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.” Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(4).

In In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 419 N.E.2d 400, the trial court ordered that the family home be sold at the time of the dissolution of the marriage and the proceeds from the sale be divided between the parties after the husband received certain credits based on mortgage payments he had made. On appeal, the wife contended that as the custodial parent of the parties’ two minor children she should be permitted to remain in the family home until the youngest child (age 12 at the time of trial) reached majority. This court agreed with her and stated:

“Section 503(c)(4) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)(4)) provides that ‘the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children’ is a relevant factor in dividing marital property. The adverse effect which dissolution of a marriage has on children is self-evident. Therefore, where possible, children should be afforded continuity in their environment in order to reduce the emotional disruption caused by the separation of their parents. One of the ways this can be accomplished is by affording the children continued residence in the family home.” (Brenner, 95 Ill. App. 3d at 102, 419 N.E.2d at 402.)

The Brenner court remanded the case to the trial court so that a provision could be made for the continued use of the marital residence by the custodial parent and the children for a reasonable period of time.

The trial court is to consider custodial provisions made for any children in dividing marital property, and the desirability of awarding the marital residence, a right to live therein and for reasonable periods, to the spouse having custody of the children. See In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 459 N.E.2d 1056; In re Marriage of Wiley (1990), 199 Ill. App. 3d 169, 178, 556 N.E.2d 809.

In a dissolution of marriage proceeding, the trial court did not err in awarding wife possession of the marital home until the youngest child became emancipated; and even though this event might not occur for nine years, the period of possession awarded to the wife was not unreasonable. (In re Marriage of Woolsey (1980), 85 Ill. App. 3d 636, 406 N.E.2d 1142.) The second district in In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262, and in In re Marriage of Agazim (1988), 176 Ill. App. 3d 225, 530 N.E.2d 1110, ordered immediate sale of the respective marital homes notwithstanding the desirability of awarding the family home or the right to live therein for reasonable periods to the custodial parents. Both cases noted that keeping the children in the marital home is but one factor to be addressed in distributing the marital property. In Agazim, the court held: “Here that factor was clearly outweighed by the need to give [the husband] sufficient funds so that he could pay child support, provide for his new family’s needs, and pay off his outstanding debts.” (Agazim, 176 Ill. App. 3d at 236, 530 N.E.2d at 1117.) In Smith the court found that if the wife kept the house she would incur high monthly ownership costs and either maintenance or quite high child support would have been necessary and “[a] fair analysis of the husband's income shows that he would be hard pressed to pay high child support on his business income alone.” (Smith, 100 Ill. App. 3d at 1131, 427 N.E.2d at 1266.) Thus, the Smith court found that the sale of the home would allow the husband sufficient funds or assets to pay reasonable child support while providing for his own needs. In both Agazim and Smith the court was considering the ability of the noncustodial parent to make child support payments.

Richard is the custodial parent. He has been the sole provider of support for the children. Diane was not ordered to make any child support payments. We do not find any indication in the record that the judge considered the desirability of awarding the right to reside in the marital home to the spouse having custody of the children.

Michael has now reached the age of majority and is away at college; however, his father still provides support and Michael resides with his father when school is not in session. Mary is 11 years old and still resides with her father. As of the date of oral arguments, Richard stated that Diane had more or less disappeared. He thought she might be in Las Vegas. As Diane neither filed a brief nor appeared in the case, it appears that she has lost interest in the case.

We conclude, under the facts of this case, a provision should be made for the continued use of the marital residence by Richard and the children until Mary’s eighteenth birthday. Upon Mary’s eighteenth birthday, the house should be sold and the proceeds divided in accordance with the trial court’s decision. Accordingly, as to the issue of the sale of the marital home, we reverse and remand to the trial court to enter an order consistent with the provisions in this opinion.

MAINTENANCE

Richard argues that it was an abuse of discretion for the trial court to reserve maintenance to Diane for a period of two years. We first note, as of the date of oral arguments, over two years had elapsed since the date of the trial court’s order reserving maintenance for two years. Also, as of the date of oral arguments, Diane had not petitioned the trial court for an award of maintenance. Due to the elapsed time, Richard’s counsel conceded at oral arguments that the issue would be moot.

However, since we do not believe that the trial court abused its discretion in reserving maintenance for the two-year period, we will still address the issue.

In its memorandum opinion of March 15, 1989, the trial court found:

“Maintenance from Richard to Diane shall be reserved, subject to review within two years herefrom. In re Marriage of Shafer, 122 Ill. App. 3d 991.”

The court in In re Marriage of Shafer (1984), 122 Ill. App. 3d 991, 999, 462 N.E.2d 39, held:

“Regardless of whether the court grants or denies maintenance it may consider taking a reserved-jurisdiction approach to maintenance. This would encourage the former spouse to seek employment with providing the court the opportunity to review the award at the end of a fixed period to determine what efforts the spouse has made toward achieving self-sufficiency and whether these efforts have been successful.”

In In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126, this court held that the trial court did not abuse its discretion when it reserved the wife’s right to seek maintenance for a period of six years. The necessity for and amount of an award of maintenance is a decision within the sound discretion of the trial court in each individual case. Such decisions will not be set aside unless found to be contrary to the manifest weight of the evidence, thus showing an abuse of discretion. In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 465 N.E.2d 649; In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 427 N.E.2d 285.

Based upon a review of the record, we do not find that the trial court abused its decretion in its decision to reserve the issue of maintenance for two years.

CHILD SUPPORT

The trial court’s memorandum order of September 20, 1989, states in pertinent part:

“The court finds that the imposition of child support at this time would serious[ly] diminish her capacity to sustain herself in a meaningful way, in context with her previous standard of living. RICHARD has a large income and the modest increment he would receive from- DIANE would be relatively insignificant to him. In weighing the impact of requiring child support from DIANE against the meaningfulness of her contribution toward reducing RICHARD’S financial burden, it is apparent that no child support award should be made at this time. In re Marriage of Reed, 100 Ill. App. 3d 873.
This court must also consider that DIANE will be required to expend certain sums of money to finance visitation with the children. Had this court ordered child support payments, DIANE would have difficulty in finding enough money, after meeting her own needs, to fund the expense of visitation. In re Marriage of Mitchell, 103 Ill. App. 3d 242. Movies recreation and occasional meals out, all cost money. This court finds that it is extremely important to children that they and their noncustodial parent have the opportunity to continue their relationship.”

Richard argues that the trial court’s decision reserving the issue of child support was a misapplication of the governing statute, contrary to the manifest weight of the evidence and an abuse of discretion. Richard further asserts that the trial court erred in burdening him with the sole financial responsibility for the children. We disagree.

Section 505 of the Illinois Marriage and Dissolution of Marriage Act states in pertinent part:

“(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children
Percent of Supporting Party’s Net Income
1 20%
2 25%
* * *
(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines.” Ill. Rev. Stat. 1989, ch. 40, pars. 505(a)(1), (a)(2).

Unless a trial court enters written findings as to why a lesser figure is appropriate, it must order the noncustodial parent to pay at least a certain percentage of his or her income by way of child support. (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 492 N.E.2d 622.) The determination of child support is within the sound discretion of the trial court in each individual case and will not be set aside unless found to be contrary to the manifest weight of the evidence, thus showing an abuse óf discretion. In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641.

In In re Marriage of Grauer (1987), 153 Ill. App. 3d 125, 505 N.E.2d 1131, this court upheld the trial court’s decision to hold the father solely responsible for child support. After making specific reference to such factors as relative earnings of the parties and their disparate financial positions, the trial court had made findings that the husband had far greater ability to support himself and the minor children without any support from the wife. Grauer, 153 Ill. App. 3d at 129, 505 N.E.2d at 1133.

In the present case, the trial court did enter written findings as to why it felt that Diane’s obligation to pay child support should be reserved. We do not find that the trial court abused its discretion in failing to compel Diane to pay child support at a time when she could barely support herself. At the time of oral arguments Richard had never gone in to the trial court on a petition for child support. However, we note nothing precludes Richard from petitioning the trial court for child support based upon a change in circumstances of the parties at a future date.

Accordingly, for all the reasons set forth above, we affirm the decision of the trial court as to the issues of dissipation, maintenance and child support. We reverse the decision of the trial court ordering the immediate sale of the marital home and remand to the trial court to' issue an order consistent with this opinion.

Affirmed in part; reversed and remanded in part.

LORENZ, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOSE J. AMADOR et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. ILLINOIS BELL TELEPHONE COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—91—0361, 1—91—0982 cons.
    Opinion filed August 28, 1992.
    Rehearings denied October 2, 1992, and November 16, 1992. Modified opinion filed October 9, 1992.
    Clinton A. Krislov and Jonathan Nachsin, both of Krislov & Associates, Ltd., and John J. Lowrey, of Lowrey & Smerz, Ltd., both of Chicago, for appellants.
    Edward A. Butts, John C. Gockley, and Robert Guritz, all of Chicago, for appellee Illinois Bell Telephone Company.
   JUSTICE MURRAY

delivered the opinion of the court:

Pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307), Jose J. Amador (Amador) filed an interlocutory appeal from the January 31, 1991, order of the circuit court which denied Amador’s request for a segregated fund (No. 1—91—0361), and another interlocutory appeal from the March 19, 1991, order of the circuit court which denied Amador’s request for the impoundment of certain funds collected by Illinois Bell Telephone Company (IBT) (No. 1—91—0982). The appeals have been consolidated by order of this court dated June 26,1991.

Background

In 1987, the Federal Commerce Commission (FCC) instituted various subsidy programs for the purpose of assisting low-income groups in obtaining local telephone services. (47 CFR §69.203 (1991).) The Illinois legislature then enacted section 13—301 of the Universal Telephone Service Protection Act of 1985, directing the Illinois Commerce Commission (ICC or Commission) to participate in these Federal programs and to assist local telecommunication carriers to develop pricing mechanisms that would facilitate customer access to telecommunication services. Ill. Rev. Stat. 1989, ch. 111⅔, pars. 13—301(a), (c).

Subsequently, the ICC opened a rulemaking docket (docket 87—0432), making local exchange telecommunication carriers respondents to the docket and giving notice to the public. Proceedings were held and a plan known as “Link-Up I” was adopted by the Commission. (83 Ill. Adm. Code §757.10 (1991).) This plan required local exchange carriers to participate in Federal subsidy programs which would help defray the cost of installation charges on new telephone service for low-income groups.

After further hearings, 83 Ill. Adm. Code §757 was amended to include a second program known as “Link-Up II.” Under the LinkUp II program, the ICC required local exchange carriers to add a 15-cent-per-line surcharge onto their customers’ access line rate (except those low-income customers who were to be recipients under the program). The monies collected through this surcharge would be matched by Federal dollars pursuant to the Subscriber Line Charge Waiver Program adopted by the FCC in 47 CFR §69.104(k) and then applied by the carriers to the monthly service charges of low-income customers to lower their costs for telephone service.

The ICC gave final approval of the Link-Up II program in an order released October 3, 1990. IBT complied with this ICC ruling, filed tariffs to implement the ruling effective February 1, 1991, modified their systems to make the necessary rate changes and provided notice to their customers.

On January 30, 1991, Amador, as representative of all persons similarly situated, filed a class action law suit and declaratory action against IBT and the ICC, seeking to have the 15-cent surcharge declared illegal as a form of discrimination based upon wealth. The complaint further alleged that the surcharge was a violation of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 1—101 et seq.), a violation of the equal protection clauses of the United States Constitution and the Illinois Constitution and an unjust enrichment of Illinois Bell.

As and for relief Amador sought a declaration that the surcharge was illegal, compensatory damages, restitution, interest and attorney fees. Amador also asked that a segregated protest fund be created and that IBT be ordered to deposit into this fund the 15-cent surcharge monies collected. Amador’s request for a segregated fund was also presented as an emergency motion on January 31, 1991. The motion was denied by the lower court on the basis that Amador failed to exhaust his administrative remedies.

Amador then filed an interlocutory appeal (No. 1—91—0361) from the trial court’s denial of the motion for the creation of a segregated fund. After filing the notice of appeal, an emergency motion for the creation of a segregated fund was presented to this court. This court denied the motion in an order dated February 20, 1991. Amador then petitioned for leave to appeal to the supreme court and, in addition, sought a writ of mandamus to compel the circuit court to create a fund. The writ was denied April 17, 1991, and leave to appeal to the supreme court was denied June 5, 1991.

In the meantime, in an order dated March 15, 1991, the ICC repealed, on an emergency basis, 83 Ill. Adm. Code §757. Pursuant to this new order, the Link-Up II program was terminated effective March 25, 1991, less than two months after it was implemented. In the ICC order repealing 83 Ill. Adm. Code §757, the Commission found that Link-Up II violated section 13—301(a) of the Public Utilities Act.

Amador responded by filing a new emergency motion asking that the surcharge monies already collected be impounded. The circuit court denied the motion and an appeal of the order was taken (No. 1—91— 0982) and later consolidated with the first appeal. The supreme court refused to grant Amador’s motion for direct appeal brought pursuant to Supreme Court Rule 302(b).

While the present appeals pended in this court, Amador continued to pursue the class action in the lower court. The complaint was amended on February 27, 1991, by adding count VI, in which it was alleged that the surcharge was a tax, and it was amended again in April 1991 at which time Amador added as defendants the commissioners of the ICC, in their individual capacity.

Subsequently, IBT, the ICC and its commissioners all filed motions to dismiss the complaint against them. On August 14, 1991, dismissal was granted as to the ICC and the individual commissioners, but denied as to IBT. The trial court certified as a class the IBT customers who had paid the surcharge. The trial court also found that the surcharge was a tax and not a rate. No appeal was taken from this order and the action continues to pend in the lower court against IBT.

Opinion

We now turn our attention to the consolidated appeals before this court. The issue is whether the trial court erred by refusing to create a segregated fund and then by refusing to impound the funds already collected. The plaintiffs’ class argues principally that the refusal to create a fund denied them a meaningful remedy from an illegally imposed tax.

The trial court apparently denied the motion for the creation of a fund finding that plaintiffs failed to exhaust their administrative remedies. IBT asks that we uphold the trial court’s ruling on that basis, but also contends that the creation of a fund would have violated IBT’s constitutional rights since it would have required IBT to have given indigent clients a discount on their telephone service but would have denied them the funding for such a program. IBT further argues that the surcharge, having been instituted by order of the ICC, makes ICC an indispensable party to the action. Since ICC was dismissed from the action below and the dismissal was not appealed by plaintiffs, IBT contends that plaintiffs should be banned from proceeding against IBT for lack of an indispensable party, i.e., ICC. Finally, IBT contends that because the surcharge was instituted at the behest of the ICC and in accordance with an ICC order, plaintiffs are not entitled to a refund.

Before discussing the merits of the appeal, we must discuss the indispensable party issue raised by IBT. IBT contends that ICC and its commissioners are necessary parties to the action below and their dismissal from the action, which was not appealed by the plaintiffs and is now final, precludes the further pursuit of the claim against them. Therefore, IBT argues that the appeal should be dismissed.

Amador disagrees. Amador argues that ICC is not a necessary party to this appeal. Conversely, Amador argues that ICG’s status should not be an issue here. Amador believes that because ICC was a party to the action at the time that the lower court’s rulings were made and when notice of appeal was filed, ICC, in fact, has remained a party to the appeal even though ICC has not participated in the appeal and was subsequently dismissed from the action below by the trial court.

We find that we must agree with IBT and dismiss this appeal. If we were to rule in favor of plaintiffs in this interlocutory appeal, ignoring the fact that ICC and its commissioners have been dismissed below, our decision would be moot and unenforcable if ICC and its commissioners were to be deemed indispensable parties to the action below. In such an event, any decision in favor of plaintiffs here would be a hollow victory and an exercise' in judicial futility. Therefore, we find that whether ICC is found to be a necessary party to the cause of action below directly affects our ability to dispose of the appeal before this court. Therefore, we must dismiss this appeal and remand for further hearings below so that the trial court can rule upon IBT’s claim that the dismissal of the ICC and its commissioners bars the further pursuit of the claim against IBT.

As further support for our decision to dismiss this appeal, we note that it has been brought to this court’s attention that another class action entitled Kramer v. Barnich and the Illinois Commerce Commission (92—CH—2240) (Kramer), was filed' on March 3, 1992. This case involves the same issues as in the Amador case and was tendered by the same attorney as in the Amador case. The Kramer case, although not consolidated with the Amador case by the court below, could be adversely affected if we were to rule on this appeal. Certainly a decision on this appeal would be res judicata to all members of the class in the Amador case, but it could also have estoppel effect on the class in the Kramer case. .

In addition, since the ICC and its individual commissioners are once again parties tó the underlying matter as named defendants in the Kramer case, we believe that a decision on this appeal could substantially affect the rights of these parties, who are not presently before this court.'

For all the reasons stated above we dismiss the appeal. We believe that this is the most just procedure in this case under the circumstances.

Appeal dismissed; case remanded.

LORENZ and GORDON, JJ., concur.

      Subsequently, another complaint entitled Diamond Envelope Corp. v. Illinois Bell Telephone Co. (91—CH—1354), was filed on behalf of business customers who were charged the 15-cent surcharge. This case was consolidated with the Amador action. Also, additional plaintiffs John C. Pierce and Edward Johnson joined the Amador suit.


author: JUSTICE McNAMARA

text:
      In re MARRIAGE OF EDWARD J. RICHARDSON, Petitioner and Counterrespondent-Appellee, and IRENE RICHARDSON, Respondent and Counterpetitioner-Appellant.
    First District (6th Division)
    Nos. 1—90—3633, 1—91—1796, 1—91—3739 cons.
    Opinion filed September 11, 1992.
    Rehearing denied December 1, 1992.

      Gary A. Weintraub, RC., Diane M. Bruzas, and Jerome N. Zurla, Ltd., all of Chicago, for appellant.
    Schiller, DizCanto & Fleck, of Chicago (Arnold B. Stein, Burton H. Hochberg, Sarañe C. Siewerth, and Anita B. Ward, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner Edward J. Richardson (Edward) filed an action for declaratory judgment to determine the validity of a post-nuptial agreement (agreement) entered into between Edward and respondent Irene Richardson (Irene) on March 17, 1983. Among other provisions, the agreement addressed the distribution of marital assets including stock in Richardson Electronics to Edward, the award of the marital residence to Irene, and a two-year moratorium wherein Edward agreed not to file for dissolution of the marriage.

On November 23, 1987, Edward filed for dissolution of marriage and pled the existence, execution and validity of the agreement as dis-positive of the rights of the parties. Irene contended that the agreement was invalid because it was based upon fraud and misrepresentation in the valuation of the assets listed on the balance sheet, and fraudulently misrepresented the nature, content and subject matter of the agreement. In the interim, the marital residence awarded to Irene was found to be in need of significant structural repair totaling $400,000, which Edward was ordered to pay.

On December 4, 1990, the trial court entered a bifurcated judgment of dissolution of marriage dissolving the marriage between the parties, and found that the agreement was valid and enforceable. On May 20, 1991, the court entered a second judgment against Irene for reimbursement of the $400,000 expended by Edward for home repairs, which was secured by a lien against the marital residence awarded to Irene. Irene contends that the agreement is invalid as a matter of law or alternatively that the agreement should be set aside because it is unconscionable. Irene further advances the affirmative defenses of fraud, duress and coercion in connection with the execution of the agreement.

The parties were married on June 15, 1963, and had two children, Edward, Jr., and Patricia, both of whom are now adults. At the time of the marriage and for several years thereafter, both Edward and Irene were employed by Arthur H. Richardson, Inc., a closely held electronics distributing firm founded by Edward’s father in 1947. Irene worked for the company as a secretary and bookkeeper, and also handled the accounts payable and customer relations.

All of the stock in the company was originally owned by Edward’s parents. Arthur H. Richardson, Sr. (Arthur), held 13 shares, and 12 shares were held by Florence Richardson (Florence), Edward’s mother. On June 19, 1974, the shares held by Arthur were redeemed by the corporation for $900,000. Upon Arthur’s retirement, Edward became president, chief operating officer and sole shareholder of the corporation, while Irene functioned as its corporate secretary and treasurer. By 1980, Richardson Electronics, Ltd., its successor, had become a 35-employee firm that specialized in distributing electron tubes with yearly sales of $10 to $12 million, and stock with a book value of $6 million.

The record reveals that due to changes in the electronics industry, Edward became increasingly concerned about the company’s ability to procure products to distribute. Two alternatives to this problem were contemplated: a merger with a larger manufacturer; or an outright sale to a larger company that would provide capital for diversification, acquisitions, or capital investments. In early 1980, an investment banking firm was contacted for the purpose of assisting in the sale of Richardson Electronics. Edward sought to market the company for a price of 10 times the company’s fiscal 1980 earnings, or approximately $12 to $15 million. In December 1980, Bell Industries made a proposal for the acquisition of Richardson Electronics for $9.89 million plus a structured earn-out formula that would pay additional funds according to a formula based on a return on capital invested. According to Edward, the transaction was never consummated because the price offered was too low.

In 1981, Richardson Electronics acquired the assets of National Electronics and later merged with Centron Electronics in order to vertically integrate the firm and guarantee its customers’ product supply. In March 1982, Richardson Electronics acquired the small power tube division of RCA.

In 1977, the parties purchased a residence in Barrington, Illinois for $400,000. One year later, the adjoining 121/a-acre parcel was purchased for $117,000. Immediately after the purchase, the parties contracted to have the home extensively remodeled. At trial, Irene estimated the value of the house, land, and reconstruction at approximately $1 million.

During the course of the marriage, Edward also purchased an interest in several other pieces of property. Edward and his father each purchased a 50% interest in the Richardson Hunt Club, a 400-acre parcel of farmland upon which a lodge was built for business meetings and entertaining. In 1979 and 1980, Edward acquired Richardson Farms, a 160-acre hog-raising facility, for approximately $400,000.

Although the parties separated in 1980, Edward returned to the Barrington home during the spring of 1981 for a “trial period” of four to six weeks. Irene retained Bernard Rinella as legal counsel on December 16, 1980. Rinella spoke with Edward’s corporate counsel, Scott Hodes, of the firm of Arvey, Hodes, Costello and Burman (Arvey), who asked him to hold off filing a petition for dissolution of marriage. Rinella and Hodes proceeded to conduct informal discovery, and Hodes produced data relating to the acquisition of the Barrington residence as well as income tax returns for the various business ventures engaged in by Edward.

In November 1981, Irene filed her petition for divorce which contained a list of 10 assets she identified as marital property, including Richardson Electronics and its New York subsidiary, Richardson Hunt Club, Richardson Farms, the Richardson Electronics building located in River Grove, and the Barrington residence. At trial, Rinella testified that he never valued the stock of Richardson Electronics because he had not completed discovery and did not have sufficient financial information to do so. On February 25, 1982, the divorce action was voluntarily dismissed by Irene. According to Irene, Edward asked her to dismiss the divorce action because it was not good for him to have a divorce pending in light of his current business involvements. Edward testified that after discussing the various settlement terms, it was obvious that Irene did not want a divorce.

In the summer months of 1982, Irene and Edward met with another attorney, William G. Seils, also a member of the Arvey firm. Throughout the course of Seils’s 26-year legal career, he had worked on matrimonial cases on only two occasions. Seils attended this meeting at the request of Hodes, who told Seils that Edward stated the parties had resolved their differences and had come to an agreement that they would like to have documented and proceed with the divorce. Hodes testified similarly that Edward had called and asked him to meet with them to discuss formalizing the agreement they had made regarding a division of their assets.

Following the meeting, Seils began preparing a draft agreement in October 1982. Irene was not represented by counsel at that time. In the initial drafts, Edward was to pay Irene $ll,000-per-month maintenance and the parties were to have joint custody of their two children with Edward paying an additional $1,500 per month per child in child support. Irene was to receive the $1 million Barrington residence, and furnishings, with surround acreages, one-half of the hog farm, and her Mercedes automobile. The remaining property would be assigned according to title, with jointly held assets to be divided between the parties.

Over the course of the next several months, various modifications to the draft were made. Hodes told Edward that Irene would have to be represented by an independent attorney who would ■ review the agreement on her behalf. On February 17, 1983, Hodes contacted Muller Davis, a matrimonial law attorney. Hodes informed Davis that the agreement dealt "with marital assets estimated between $15 to $20 million. Hodes also told Davis that Irene was anxious to get back together with her husband, and that Edward was willing to try and get back together again.

Davis met with Irene on February 23, 1983, to discuss the agreement. Irene informed Davis that her husband was in the electronics business and had assets worth $30 million. Irene and Davis also discussed whether part or all of the stock was marital. After the meeting, Davis informed Hodes that Irene was not getting what she expected out of the agreement. Davis further recommended that if the parties really wanted to reconcile, they should attend marital counseling.

In August 1982, Irene’s father became ill and was diagnosed as suffering from lung and liver cancer. Over the course of the next several months, he was hospitalized much of the time. He died in March 1983. Bonnie Rapier, Irene’s friend, testified that Irene was very involved in her father’s illness and death, spent a great deal of time at the hospital, and that it was difficult to talk with her because she was so emotional. Ana Grember, another friend of Irene’s, stated that Irene lamented she had lost her father-in-law, and now she was going to lose her father. Grember testified that Irene was also hoping she was not going to lose her marriage as well.

On March 7, 1983, Irene, Edward, Davis and Seils met at Davis’ office for a conference. During that meeting, the parties’ estate was said to have a value of $13 million gross, or $11 million net, and that Edward had yearly income of $235,000. Davis testified that Irene objected to the monetary part of the agreement. After reading through the agreement, Davis recommended that Irene refrain from signing it because it was not a good deal for her. Both Seils and Edward confirmed that Davis recommended against Irene entering into the proposed agreement at that meeting. Seils further testified that Irene stated that she did not want to get divorced and that she was crying and distraught at the meeting.

Following the March 7 meeting, Seils told Hodes that Irene had been “very upset,” that she had been crying, and that she really did not want to be divorced from Edward. Similarly, Edward indicated that when he drove Irene home from the meeting she was crying and told him that she did not want a divorce. However, Edward stated that at the time of the meeting in Davis’ office, there was no doubt in his mind that he would ultimately divorce Irene, and that he knew he “didn’t want to live with this woman any longer.”

Davis testified that Irene did not terminate the attorney-client relationship with him at any time on March 7. Irene also indicated that she did not officially discharge Davis by letter or telephone call. Davis never heard from Irene again. Seils testified that Edward called him and told him that Davis would no longer be representing Irene. Edward indicated to Seils that he had agreed with Irene to a moratorium to give them a chance to reconcile, and on that basis they were going ahead with the agreement dividing their property. However, another attorney would be representing Irene. According to Hodes, Davis called him after the meeting and told him that he didn’t think he could represent Irene because the financial arrangement was not the key thing between these two parties; nevertheless, Davis never specifically said that he would not represent Irene.

Later that afternoon, Hodes referred Edward to another attorney, David Passman, who was a former associate at the Arvey firm. In turn, Edward recommended Passman to Irene. Hodes testified that he called Passman on the afternoon of March 7 and told him that the parties had reached an agreement in substance concerning the terms of their separation, but that Irene was not then represented by counsel. Hodes explained the major provisions of the agreement and told Passman that it was to be executed on March 11, 1983. Hodes stated that he told Passman that this was a matter that had to be dealt with quickly, per Edward’s request, and that Edward would be paying Passman’s fee. Passman agreed to take the case pending a conversation with Irene. Passman did not consider himself to be a matrimonial attorney, and he had never prepared a post-nuptial agreement from its inception.

Passman stated that Hodes initially contacted him on March 4, 1983. Passman was unaware that Davis had previously represented Irene in this agreement, and later testified that he would not have undertaken the representation of Irene had he known that she was represented by other counsel. Seils forwarded a copy of the proposed settlement agreement to Passman on March 7. The following morning, Passman went over the draft agreement with Seils over the telephone. Passman suggested that the following substantive changes be made: (1) specification of a time period for reimbursement of mortgage and real estate tax payments; (2) inclusion of a sentence providing that Edward would be responsible for any penalties/late charges on such mortgage and real estate tax payments if he did not pay them in a timely manner; and (3) adding a provision permitting Irene to sell or encumber the Barrington residence and her automobile. Seils also indicated that Passman requested changes in the paragraph providing for a new automobile, and the addition of a provision giving Irene the right to review any joint tax return.

On March 8 a second draft of the proposed agreement was delivered to Passman. At Passman’s request, Seils also added language concerning real estate taxes, Irene’s selection of a new Mercedes and right to sell the car, and estate rights of each party in case of the death of the other. Seils sent Passman a copy of the revised draft, and a copy of the March 1, 1983, balance sheet. On the following day, Passman wrote to Seils requesting two additional changes in the draft. Seils also shortened the moratorium on the divorce provision from four years to two years, as requested by Edward.

Passman further testified that he met with Seils on March 9, and that Seils provided him with an “inch or two of documents from Richardson Electronics” including corporate balance sheets and financial statements. Passman spent approximately 20 minutes reviewing the financial information. Passman did not make any investigation as to whether the Richardson Electronics stock was marital or nonmarital, nor did he ask for any further documents or financial information to verify any of the entries on the balance sheet.

On March 10, Passman received a third draft of the proposed agreement from Seils which incorporated the latest changes Passman had requested. Seils sent back a final draft with the balance sheet and a cover letter confirming the four-way meeting scheduled for the following morning. However, the meeting did not take place because Irene’s father died.

As a result of her father’s death, Irene spent the following week attending his wake and preparing the funeral arrangements. According to Irene, Edward approached her at the wake and told her that because he wanted to build onto the Hunt Club property, he would exchange title to that property and give her the title to the marital residence in Barrington. Irene further stated that she and Edward agreed not to file for divorce for four years. Following the funeral, Edward told Irene that they would be a family again. Similarly, Irene’s mother testified that Edward told her that they would soon be together again as a family.

On March 17, 1983, Edward drove Irene to Hodes’ office. Irene testified that she believed the only purpose of the trip was to sign an exchange of titles on the house. Prior to the time Irene entered the car, she had not seen any document regarding the exchange of houses, nor had she seen any type of agreement. Edward told her that the transfer of title was in the best interest of the children so that she would not have any liabilities on the house that he was going to build.

After arriving at Hodes’ office, Irene entered a conference room with Edward, Seils, Passman and a secretary. After introductions were made, Irene was informed that Passman was to be her attorney. Irene testified that she had never met, spoken to, or corresponded with Passman prior to this meeting. Irene testified that she was crying and that someone gave her some water. Irene was then given a pen and Seils told her to sign the agreement. Irene testified that no one explained or read the agreement or the attached balance sheet to her, and that she did not know what she was signing when she executed the agreement. She was not aware if any of the real estate properties had been appraised, nor did she recall seeing any financial information on the value of Richardson Electronics. Irene had no independent knowledge of the assets or liabilities listed on the balance sheet. The meeting lasted for approximately one hour, and Irene felt as though her “world was coming down around her.” She could not comprehend the reason why the agreement had to be signed that day, for she had just lost her father.

When Edward drove her home after the meeting, he repeated his earlier statement that the agreement had to be signed in the best interests of her and the children. Irene stated that she did not receive a copy of the agreement following the meeting. At the meeting, Edward also executed an assignment of beneficial interest in the parties’ home in Barrington to Irene.

Over defense counsel’s objection concerning attorney/client privilege, Passman testified that he conducted a telephone conversation with Irene prior to the March 17 meeting. Passman told Irene that Hodes had contacted him concerning the agreement which was to provide for certain financial arrangements as well as a moratorium on divorce for two years. Irene was unwilling to drive to Passman’s office to discuss the agreement; however, they had a subsequent telephone conversation wherein she stated that she was familiar with the items on the balance sheet and acquainted with what her husband owned. Passman stated that Irene confirmed that an agreement had been reached, and that her primary concerns were to obtain a college education and the support of herself and her children. Passman never sent Irene any letters, drafts of the agreement, or any other documents.

Passman stated that at the March 17 meeting, Seils read through the agreement from its beginning, thereby affording the parties the opportunity to voice their objections. Irene did not voice any objections, nor did she indicate that she did not understand any portion or provisions contained in the agreement. Passman described Irene’s demeanor as very quiet and composed, and that she did not appear distressed. Irene left Hodes’ office with an executed copy of the agreement. Passman submitted to Edward a bill for legal services rendered in the amount of $680.

According to Seils, Irene had been distraught, upset and crying at the March 7 meeting at Davis’ office; however, at the time the agreement was executed on March 17 she did not appear upset. Seils’ secretary, who notarized the parties’ signatures on the agreement, testified that Irene appeared poised, calm, and attentive to the proceedings.

The executed agreement provided, inter alia, that Edward would not bring an action for dissolution for two years; that Irene would receive maintenance in the amount of $10,000 per month; an expense-paid education at Northwestern University; support and college education of the two children; title to the Barrington residence, which the parties agreed had a value of $1 million; and a new Mercedes-Benz automobile. The agreement also stated that “it is agreed and confirmed that Edward always has been and is now the sole owner of all of the shares of Richardson Electronics,’’ which was characterized as nonmarital property. The following assets and liabilities were set forth in the balance sheet attached to the agreement:

ASSETS:
Cash $ 10,000.00
Vested Interest in Profit Sharing Plan 360.691.00
Net Worth of Richardson Electronics as of 12-31-82 10,466,735.00
Net Worth of Richardson Farms (160 acres Land & Buildings) 636.259.00
Net Worth of Richardson Hunt Club as of 1-31-83 60,822.00
400 acres West Brooklyn, Illinois (Richardson Hunt Club) 400.000. 00
xk Acre — Addison, Illinois 40.000. 00
House — 13 Acres Land in Barrington, Illinois 1,000,000.00
50% Interest in Industrial Building (3030 North River Road) 225.000. 00
Cash Surrender Value Mise. Life Insurance Policies 50.000. 00
$13,249,507.00
TOTAL LIABILITIES - $ 1,550,900.00
NET WORTH $11,698,607.00

With respect to the assets listed on the balance sheet, Irene received the Barrington house together with its adjacent acreage. All of the remaining assets, together with the liabilities, were given to Edward. Irene points out that, at best, she received 7.55% of the assets ($1,000,000/13,249,507 = 7.55%).

The stock of Richardson Electronics, valued on the balance sheet as having a net worth of $10,466,735, represented a per share value of $3.54 ($10,466,735/2,952,000 shares). In October 1983, eight months after the execution of the agreement, a public offering was made of the Richardson Electronics stock. Edward sold 200,000 of his 2,952,000 shares of stock for $2,900,000. As such, Edward’s interest in his remaining shares of Richardson Electronics was worth approximately $41,000,000.

Paul J. Much, who testified on behalf of Irene at trial, stated that as of March 17, 1983, the fair market value of Richardson Electronics was $37 million. However, the trial court found that Much’s analysis was flawed because the expert’s selection of comparable companies used as a basis of comparison with Richardson Electronics had no relationship whatsoever to the business engaged in by Richardson Electronics, which she described as an “extremely narrow, specific and limited product in a waning marketplace.”

American Appraisal Associates (American Appraisal) was retained by both parties to value the stock in Richardson Electronics and the other assets of the parties. As of March 17, 1983, American Appraisal estimated the value of the Richardson Electronics stock at $24,400,000. The value of the stock as of February 1, 1990, rose to $63,432,758. When Edward declined to call American Appraisal during his case in chief, Irene sought to call this firm to testify as an adverse witness. The trial court refused to allow this testimony, for to do so would have permitted Irene to call two witnesses while Edward produced none. Thus, no contrary expert testimony on the stock valuation was presented on behalf of Edward.

One of the central issues in this case concerns the redemption of the 12 shares of Richardson Electronics stock held by Edward’s mother, Florence. In Edward’s motion for partial summary judgment, he claimed that prior to the parties’ marriage, he received seven shares of stock on May 31, 1962, three additional shares on May 31, 1963, and attached copies of the stock certificates. Edward and his mother both testified in their depositions that the dates on the stock certificates were accurate. Edward claimed to acquire two more shares of stock on May 3, 1964 and June 30, 1965. Edward maintained that, pursuant to section 503(a)(6) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503), said shares constituted nonmarital property.

However, on March 4, 1990, Edward conceded that the 10 stock certificates representing Florence’s stock which he alleged to have received prior to his marriage were not accurate. Thus, it is undisputed that Edward acquired all of his shares of stock in Richardson Electronics after the date of the marriage of the parties. Irene obtained the services of two document authenticity experts on the issue of the date of delivery to Edward, but the trial judge felt that there was no necessity of having this evidence presented, because the issue of the date of the stock, germane to the issue of such stock being the non-marital property of Edward, was not appropriate at that stage of the proceeding.

Irene and Edward operated under the terms of the agreement without incident from March 17, 1983, through November 23, 1987, at which time Edward filed a petition for dissolution of marriage. On April 21, 1988, Edward filed an amended petition pleading that the parties’ March 17, 1983, agreement fully disposed of all property, maintenance, child custody and support issues. Irene contended that the agreement was illegal and unconscionable, and that it had been procured by fraud and duress.

During the pendency of the dissolution proceedings, Irene filed an emergency petition for temporary maintenance and other emergency relief, alleging that the marital residence in which she lived suffered extensive damage due to faulty architectural and structural design and to flooding. At the hearing, Hugh Cahill testified that the south wall of the sunken garage and the intersection of the retaining walls were cracked. More importantly, the house suffered from serious design defects which rendered the house in a condition dangerous to life safety.

After hearing the expert testimony, the trial judge stated that the structural integrity of the Barrington residence was severely compromised and posed an immediate hazard to the health and safety of the occupants. The court also noted that the vast majority of the problems could never be classified as “maintenance” problems; rather, they were structural design problems. The trial judge further recognized that the costs of the repairs increased with the passage of time through delays occasioned by Edward’s counsel. Edward was ordered to pay for the costs of the required structural repairs which eventually totaled $400,000; however, after the judge determined that the agreement was valid, Irene was ordered to reimburse Edward for the cost of the repairs.

Irene consistently argued throughout the pretrial proceedings that the agreement was drafted pursuant to section 502 of the Act, which provides in relevant part:

“The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” Ill. Rev. Stat. 1989, ch. 40, par. 502.

However, the trial court relied upon Stern v. Stern (1982), 105 Ill. App. 3d 805, 434 N.E.2d 1164, which states that pursuant to section 503(a)(4) of the Act, parties may agree inter se by valid agreement to treat certain property as “nonmarital,” thereby exempting such property from the marital estate from consideration by a court at a later time when a dissolution proceeding is initiated.

The trial judge found Irene to be an intelligent, sophisticated woman who worked at her husband’s company for many years, and who knew the number of employees, the book value, the sales figures, the realty assets as well as the cost of improvements made to the real estate. The judge noted that Irene conducted some of the negotiations personally before obtaining counsel; that she received the advice of two attorneys with regard to the agreement; and that she did not mention to the second attorney the fact that she was advised by her prior counsel not to sign the agreement. The court found no basis in sustaining Irene’s claim of coercion and duress, and that there was no credible evidence in that regard. After examining the entire agreement, which provided for maintenance, the children’s expenses, Irene’s college education, the payment of the mortgage, real estate taxes and insurance on Irene’s home, the payment of the income tax liabilities of the parties, the payment of all outstanding liabilities pertaining to Irene’s home as well as the company, and the provision for a new automobile, the court did not find the agreement to be unconscionable.

Although Irene challenges a number of the trial court’s evidentiary rulings and the propriety of Edward’s declaratory judgment action and the entry of a bifurcated judgment, the crux of Irene’s argument on appeal concerns the validity of the agreement, which she attacks as procedurally and substantially unconscionable.

It is well established that the law favors peaceful settlement of marital dissolution disputes. (Guyton v. Guyton (1959), 17 Ill. 2d 439, 444, 161 N.E.2d 832; In re Marriage of Chapman (1987), 162 Ill. App. 3d 308, 515 N.E.2d 424; In re Marriage of Maher (1981), 95 Ill. App. 3d 1039, 420 N.E.2d 1144.) Whether a divorce decree should be modified rests within the discretion of the trial court, and the trial court’s findings will be disturbed on appeal only when the evidence clearly so requires. In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 474 N.E.2d 28.

Irene argues that the agreement should be properly characterized as one made pursuant to section 502 of the Act, which purports to promote amicable settlement of disputes by allowing the parties to enter into an agreement to dispose of their property attendant upon the dissolution of their marriage. However, as previously set forth, section 502(b) provides that the court may set aside such an agreement if it finds it to be unconscionable. The court determined that the agreement was drawn pursuant to section 503(a)(4) of the Act; nevertheless, that provision states that the parties may categorize property as “nonmarital” only if they have reached a valid agreement. Thus, prior to the determination of whether the agreement was contemplated to comport to section 502 or section 503(a)(4), the threshold question necessarily becomes whether we are dealing with a conscionable, and therefore, valid agreement.

An unconscionable bargain has been defined as one “ ‘which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.’ ” (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 930, 428 N.E.2d 1005 quoting Hume v. United States (1889), 132 U.S. 406, 410, 33 L. Ed. 2d 393, 395, 10 S. Ct. 134, 136.) In determining whether the parties’ relative economic positions are unconscionable, courts employ commercial concepts of unconscionability: an absence of a meaningful choice on the part of one of the parties combined with terms unreasonably favorable to the other party. (In re Marriage of Foster (1983), 115 Ill. App. 3d 969, 451 N.E.2d 915; In re Marriage of Carlson, 101 Ill. App. 3d 924, 428 N.E.2d 1005.) Unconscionable terms are also defined as improvident, totally one-sided and oppressive. In re Marriage of Brandt (1986), 140 Ill. App. 3d 1019, 489 N.E.2d 902; In re Marriage of Foster, 115 Ill. App. 3d 969, 451 N.E.2d 915.

The inquiry into unconscionability requires two distinct considerations: (1) the conditions under which the agreement was made; and (2) the economic circumstances of the parties resulting from the agreement. (In re Marriage of Foster, 115 Ill. App. 3d 969, 451 N.E.2d 915.) The determination of unconscionability focuses on the parties’ relative economic positions immediately following the making of the agreement. In re Marriage of Smith (1987), 164 Ill. App. 3d 1011, 518 N.E.2d 450.

We focus our attention first upon the conditions under which the agreement was made. The record reveals that while the parties separated in 1980, it is apparent that it was Edward, and not Irene, who wanted the divorce to occur. Although Irene did initiate dissolution proceedings in November 1981, the proceedings were dismissed shortly thereafter in February 1982. Edward stated that after discussing the various settlement terms, it was obvious that Irene did not want a divorce. At the time that Hodes, Edward’s corporate counsel, initially spoke with Davis about representing Irene, he also stated that Irene was anxious to get back together with her husband, who was willing to try and get back together again. After Davis’ initial meeting with Irene, he remarked that if the parties really wanted to reconcile, they should attend marital counseling.

We also assess the impact that Irene’s father’s illness had upon her mental state. We first note that the agreement was signed one week after his death on March 11, 1983. Testimony was introduced that from the time Irene learned of her father’s illness in September

1982 until his death, she spent a great deal of time at the hospital with him, and that she also made the funeral arrangements. Rapier testified that Irene was emotionally stressed during the winter of

1983 over her father’s impending death. Grember stated that Irene hoped that she was not going to lose her father as well as her marriage. Too, both Irene and her mother testified that at her father’s wake, Edward told them that they would be a family again soon.

More importantly, we now consider the conditions immediately preceding the execution of the agreement. On March 7, 1983, the parties met with Davis and Edward’s attorney, Seils, for a conference. We note initially that Seils had very little expertise in the area of matrimonial law. Seils testified that Irene stated at this meeting that she did not want to get divorced, and she was crying and distraught. Davis recommended that Irene not sign the agreement because it was not a good deal for her. Edward himself stated that when he drove Irene home following the meeting at Davis’ office, she was crying and told him that she did not want a divorce. Nevertheless, Edward stated that there was no doubt in his mind that he would ultimately divorce Irene.

Apparently dissatisfied with Davis’ advice that Irene refrain from signing the agreement, Edward spoke with Hodes later that same afternoon in an attempt to find another attorney to represent Irene. While we reserve our comments as to the propriety of this strategy, the record shows that Hodes contacted Passman, a former associate at his own law firm, and asked whether he would represent Irene. Similar to Seils, Passman had very little experience in matrimonial law and had never prepared a post-nuptial agreement from its inception. Hodes told Passman that the parties had reached an agreement, that this was a matter that had to be dealt with quickly, and that Edward would pay his fee. Hodes also told Passman that Irene was unrepresented by counsel. However, the record reveals that Irene never explicitly terminated Davis, nor did he ever specifically state that he would not represent Irene. Indeed, Passman later commented that had he known that Davis previously represented Irene, he would never have undertaken her representation.

While Passman’s and Irene’s testimony is contradictory concerning whether they actually spoke with each other over the telephone, it is undisputed that they had never met, nor had Passman ever sent Irene any letters, drafts of the agreement, or any other documents prior to the March 17 meeting. Irene testified that she thought the purpose of the meeting was simply to exchange title between properties. Further, she could not comprehend why the agreement had to be signed that day for she had just lost her father. Although Edward, Passman, Seils and his secretary all testified that Irene was not crying or distraught while the agreement was executed, Edward and Seils both testified that at the meeting which occurred just 10 days earlier at Davis’ office, Irene was crying and upset and stated that she did not want the divorce.

Duress may be sufficient to render an agreement between spouses unconscionable. (In re Marriage of Chapman, 162 Ill. App. 3d 308, 515 N.E.2d 424.) Duress includes oppression, undue influence, or taking undue advantage of the stress of another to the point where another is deprived of the exercise of free will. (In re Marriage of Chapman, 162 Ill. App. 3d 308, 515 N.E.2d 424; In re Marriage of Riedy, 130 Ill. App. 3d 311, 474 N.E.2d 28; Stavins v. Stavins (1979), 70 Ill. App. 3d 622, 388 N.E.3d 928.) Evidence of duress must be clear and convincing before a court may set aside a marital settlement agreement on this basis. In re Marriage of Riedy, 130 Ill. App. 3d 311, 474 N.E.2d 28; In re Marriage of Carlson, 101 Ill. App. 3d 924, 428 N.E.2d 1005.

Upon close review of the circumstances in this case, we find that Irene labored under an extraordinary amount of duress at the time the agreement was executed, sufficient to warrant our setting aside the agreement as unconscionable. It is evident that Edward intended to divorce Irene; nevertheless, he resorted to such tactics as promising her that “they would be a family again” and including the two-year moratorium on divorce in order to influence her decision to enter into the agreement. Seils, too, testified that Edward indicated that the purpose of including the moratorium in the agreement was to give the parties a chance to reconcile.

We also find, under the circumstances, the manner in which Edward attempted to substitute Passman for Irene’s previous counsel deplorable. Passman did not consider himself to be a matrimonial attorney, yet he took part in a post-nuptial settlement agreement involving millions of dollars. Passman spent only 20 minutes reviewing the financial information relative to the balance sheet, made no inquiry as to whether the Richardson Electronics stock was marital or nonmarital, and did not ask for any further documents or financial information to verify any of the entries on the balance sheet. While Passman made some minor changes in the draft agreement in the week preceding its execution, he never sent Irene any letters or copies of the agreement prior to the March 17 meeting.

We now turn to the second prong of this analysis, which concerns the economic circumstances of the parties resulting from the agreement. As previously set forth, Irene received maintenance in the amount of $10,000 per month with built-in cost of living adjustments, an expense-paid college education as well as support and college education of the two children, a new Mercedes Benz automobile, and title to the Barrington residence and acreage valued at $1 million. However, as previously discussed, the residence suffered from severe structural design defects and required substantial repairs in the amount of $400,000, for which Irene was required to reimburse Edward. Edward received all remaining assets listed on the balance sheet, which includes, most significantly, the Richardson Electronics stock. At most, Irene received only 7.55% of the assets, with Edward receiving the remainder listed on the balance sheet. Such a bargain cannot be countenanced by this court in good conscience, especially in view of the length of the parties’ marriage and Irene’s active participation in the business.

In this case, we find that Edward substantially undervalued the Richardson Electronics stock on the balance sheet as worth $10,466,735, as evidenced by the fact that he sold 200,000 shares for $2,900,000 at a public offering approximately eight months after the execution of the agreement. Both parties acknowledge that after this transaction, the remaining stock was worth approximately $41 million. The trial judge found that there was no evidence in the record demonstrating any knowledge that this action was being planned at the time or prior to the execution of the agreement. However, we note that Edward tried to sell the company in 1980 through Salomon Brothers at a price between $12 to $15 million, and rejected the offer from Bell Industries as too low for $9.89 million plus a structured earn-out formula that would pay additional funds. Since that time, Richardson Electronics acquired the assets of National Electronics and later merged with Centron Electronics to improve its market position. We note as well that Irene’s expert stated that the fair market value of the company on March 17, 1983, was $37 million. Although the trial court refused to allow the testimony of American Appraisal, it estimated the stock value of the company at $24,400,000.

In order to be fraudulent, a misrepresentation must consist of a false statement of material fact, known to be false by the party making it, made for the purpose of inducing the other party to act in reliance on its truth, and in fact relied upon by the other party. (In re Marriage of Riedy, 130 Ill. App. 3d 311, 474 N.E.2d 28; In re Marriage of Maher, 95 Ill. App. 3d 1039, 420 N.E.2d 1144.) Fraud may consist in the concealment of what is true as well as in the assertion of what is false where the concealment is shown to have been done with the intention to deceive under circumstances creating an opportunity and duty to speak. (In re Marriage of Gurin (1991), 212 Ill. App. 3d 806, 571 N.E.2d 857.) Fraud must be established by clear and convincing evidence. (In re Marriage of Riedy, 130 Ill. App. 3d 311, 474 N.E.2d 28; In re Marriage of Maher, 95 Ill. App. 3d 1039, 420 N.E.2d 1144.) In this case, we find that Irene produced sufficient evidence to demonstrate Edward’s misrepresentation of the value of the stock, thereby showing that her reliance thereon was misplaced.

In addition, we find that the trial judge should have allowed Irene to introduce evidence that the stock certificates purportedly given to Edward by his mother prior to his marriage were not authentic. In essence, Edward’s attempt to portray the stock as a nonmarital asset can also be characterized as a fraudulent misrepresentation which induced Irene to enter into the agreement and give up her interest in Richardson Electronics to her detriment.

Concealment of existing material fact is actionable where it is employed as a device to mislead (In re Marriage of Gurin, 212 Ill. App. 3d 806, 571 N.E.2d 857; Chapman v. Hosek (1985), 131 Ill. App. 3d 180, 475 N.E.2d 593), such as where it relates to a matter upon which plaintiff could be expected to rely in determining whether to engage in conduct in question (Shah v. Chicago Title & Trust Co. (1983), 119 Ill. App. 3d 658, 457 N.E.2d 147), or such that had the defrauded party been aware of the concealed fact, he would have acted differently. (See Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 470 N.E.2d 1047.) This court has held that in instances where the trial court finds that respondent shielded certain marital assets from the petitioner, and thus prevented petitioner from making an informed decision to enter into the property settlement, or the trial court from making a fair and equitable distribution of the marital property in just proportion, the court should find the settlement unconscionable. In re Marriage of Burch (1990), 205 Ill. App. 3d 1082, 563 N.E.2d 1049.

Accordingly, we find that the March 17, 1983, agreement entered into between the parties fails as being both procedurally and substantially unconscionable. The record before us indicates that the property terms of the agreement were not fair and reasonable, and that Edward received a disproportionate share of the assets.

For the foregoing reasons, we affirm the trial court’s order of dissolution between the parties and reverse that portion of the judgment finding the agreement valid. We remand this cause to the trial court for the purpose of conducting a full evidentiary hearing pursuant to sections 502 and 510 of the Act (Ill. Rev. Stat. 1989, ch. 40, pars. 502, 510) on the issue of property distribution. In light of our ruling, which will affect the marital assets including the Barrington residence awarded to Irene, we also vacate the judgment against Irene in the amount of $400,000 for reimbursement of the home repairs.

Affirmed in part; reversed in part and remanded.

RAKOWSKI and BUCKLEY, JJ., concur.

       Justice Rosemary La Porta participated in oral argument prior to her death. Justice Robert Chapman Buckley was substituted on the panel and has listened to the oral argument tape and has read the briefs.