                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           In re Estate of Chaney, 2013 IL App (3d) 120565




Appellate Court              In re ESTATE OF LAVERNE G. CHANEY, Deceased (Charles Chaney,
Caption                      Executor of the Estate of Laverne G. Chaney, Deceased, Petitioner-
                             Appellant, v. Sherry S. Chaney, Respondent-Appellee).



District & No.               Third District
                             Docket No. 3-12-0565


Filed                        November 26, 2013


Held                         In an action seeking a declaration that the antenuptial agreement decedent
(Note: This syllabus         entered into with his wife prevented her from renouncing his will and
constitutes no part of       asserting her statutory inheritance rights, the trial court properly applied
the opinion of the court     the legal standard in In re Marriage of Murphy, which required
but has been prepared        antenuptial agreements entered into prior to the enactment of the Illinois
by the Reporter of           Uniform Premarital Agreement Act of 1990 be fair and reasonable in
Decisions for the            order to be valid and enforceable, and under the circumstances, the
convenience of the           agreement between decedent and his wife was not fair and reasonable and
reader.)
                             was unenforceable.


Decision Under               Appeal from the Circuit Court of Whiteside County, No. 10-P-21; the
Review                       Hon. Stanley B. Steines, Judge, presiding.



Judgment                     Affirmed.
Counsel on                  Bruce L. Carmen, of Carmen Law Office, PC, of Cambridge, and Clayton
Appeal                      L. Lindsey, of Williams McCarthy, LLP, of Oregon, for appellant.

                            Thomas D. Murray, of Dixon, for appellee.


Panel                       JUSTICE CARTER delivered the judgment of the court, with opinion.
                            Justice O'Brien concurred in the judgment and opinion.
                            Justice Holdridge dissented, with opinion.




                                              OPINION

¶1          In the context of a probate proceeding, petitioner, Charles Chaney, as the executor of the
        estate of his late father, Laverne G. Chaney, filed a petition for miscellaneous relief, seeking,
        among other things, a declaration from the trial court that the antenuptial agreement entered
        into between Laverne and respondent, Sherry S. Chaney, was valid and binding and that it
        precluded Sherry from renouncing Laverne’s will and taking her statutory forced share of the
        estate as Laverne’s surviving spouse (755 ILCS 5/2-8(a) (West 2010)). After an evidentiary
        hearing, the trial court found that the antenuptial agreement was not fair and reasonable and
        that it was invalid and unenforceable and denied Charles’s request for declaratory relief.
        Charles appeals. We affirm the trial court’s ruling.

¶2                                               FACTS
¶3          The issue raised in this appeal is a narrow question of law, and we will only set forth
        those facts that are necessary for our determination of that issue. Laverne and Sherry were
        married on July 4, 1986, when Laverne was in his late fifties and Sherry was in her late
        forties. At the time of the marriage, Laverne had substantially more assets than Sherry. Both
        Laverne and Sherry had been married previously, and each had children from their prior
        marriages. The day before their marriage to each other, Laverne and Sherry went to the office
        of Laverne’s attorney and signed an antenuptial agreement that the attorney had prepared.
        Among other things, the agreement prohibited either person from renouncing the will of the
        other person and asserting his or her statutory inheritance rights upon the other person’s
        death. At the time that the agreement was executed, Laverne’s attorney also had Laverne sign
        an acknowledgment that he had advised Laverne that the agreement was of “questionable
        validity” due to the limited provisions it contained for the support of Sherry.
¶4          In February 2010, after more than 23 years of marriage to Sherry, Laverne passed away.
        At the time of his death, Laverne still had substantially more assets than Sherry. Laverne had
        executed a will in 1979 during one of his previous marriages. The will named Charles as

                                                  -2-
     executor of Laverne’s estate. Charles filed a petition to admit the will to probate. Sherry
     sought to renounce the will and to take her statutory forced share of the estate as Laverne’s
     surviving spouse. Charles filed a petition asking the trial court to, among other things,
     declare that the antenuptial agreement was valid and binding and that it prevented Sherry
     from renouncing the will and asserting her statutory inheritance rights.
¶5       An evidentiary hearing was held on the petition. As part of the hearing, the parties filed
     written closing arguments and made oral arguments to the trial court on two different dates.
     At the conclusion of the hearing, the trial court applied the legal standard set forth in In re
     Marriage of Murphy, 359 Ill. App. 3d 289, 299-300 (2005), for antenuptial agreements
     executed prior to the 1990 enactment of the Illinois Uniform Premarital Agreement Act (750
     ILCS 10/1 et seq. (West 2010)), that to be valid and enforceable, the agreement had to be,
     among other things, fair and reasonable. The trial court found that the agreement did not
     provide an equitable settlement for Sherry in lieu of her inheritance rights, that it was not fair
     and reasonable, and that it was invalid and unenforceable. The trial court, therefore, denied
     Charles’s request for declaratory relief. This appeal followed.

¶6                                             ANALYSIS
¶7       On appeal, Charles argues that the trial court erred in finding that the antenuptial
     agreement was invalid and unenforceable. Charles does not challenge the factual findings
     that underlie the trial court’s decision, a challenge which would have invoked a manifest
     weight standard of review on appeal. See Vancura v. Katris, 238 Ill. 2d 352, 373-74 (2010)
     (the trial court’s factual findings will be affirmed unless they are against the manifest weight
     of the evidence). Instead, Charles raises a narrow question of law, that a standard of fairness
     less stringent than that stated in Murphy should have been applied by the trial court in
     determining the validity of the antenuptial agreement in this case because the agreement was
     triggered by the death of one of the spouses and not by the dissolution of the marriage as it
     was in Murphy. Because Charles raises a question of law, the standard of review on appeal
     is de novo. See id.
¶8       As Sherry correctly points out, however, Charles has forfeited that argument by not
     raising it in the trial court. It is well-settled law in Illinois that issues, theories, or arguments
     not raised in the trial court are forfeited and may not be raised for the first time on appeal.
     See, e.g., Daniels v. Anderson, 162 Ill. 2d 47, 58 (1994) (issues and theories); Kiefer v. Rust-
     Oleum Corp., 394 Ill. App. 3d 485, 493 (2009) (arguments); Norway Tree Farm, Inc. v.
     Baugher, 8 Ill. App. 3d 1061, 1062 (1972) (“issues, questions, points or contentions not
     presented in the trial court and properly preserved for review will not be considered on
     appeal”). Despite making written and oral arguments to the trial court as to the validity of the
     agreement, Charles did not at any time assert that a different standard of fairness applied
     under the facts of this case. Charles’s argument, therefore, has been forfeited on appeal. See
     id.
¶9       Charles’s reliance on Yee v. City of Escondido, California, 503 U.S. 519, 534-35 (1992)
     (new arguments may be made on appeal as long as the underlying issue was raised
     previously), for his conclusion to the contrary is misplaced. Yee cites the forfeiture rule that


                                                 -3-
       applies in the United States Supreme Court and not the forfeiture rule that applies here.
       While we recognize, as Charles suggests, that the forfeiture rule is a limitation on the parties
       and not on the court (see Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002)),
       Charles has not provided us with any compelling reason to relax the forfeiture rule in this
       case.
¶ 10       Even if we were to consider the merits of Charles’s argument on appeal, we would still
       have to uphold the trial court’s ruling because there is simply no support in the law for
       Charles’s position that a different standard of fairness should be applied. The case relied on
       by Charles in support of that position, In re Estate of Cullen, 66 Ill. App. 2d 217, 220-26
       (1965), addressed an issue of contract and statutory interpretation as to whether certain
       language in an antenuptial agreement was sufficient to bar the claimant from receiving the
       statutory surviving spouse’s award. As such, the Cullen decision in no way supports
       Charles’s argument in this appeal. Indeed, the case law in this area demonstrates that Illinois
       courts have applied the same standard of fairness regardless of whether the antenuptial
       agreement was triggered by a dissolution of marriage or by the death of one of the spouses.
       See, e.g., Murphy, 359 Ill. App. 3d at 299-300 (dissolution); Petru v. Petru, 4 Ill. App. 2d 1,
       8-13 (1954) (death of one of the spouses to the agreement).

¶ 11                                  CONCLUSION
¶ 12      For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside
       County.

¶ 13       Affirmed.

¶ 14       JUSTICE HOLDRIDGE, dissenting.
¶ 15       I dissent. Charles argues that the trial court erred by applying an improper and antiquated
       standard of “fairness” in determining whether the antenuptial agreement signed by the parties
       is valid and enforceable. As an initial matter, even though Charles did not raise this argument
       before the trial court, I would not find the argument forfeited. As the majority acknowledges,
       the doctrine of forfeiture is an admonition to the parties, not a limitation on the reviewing
       court’s jurisdiction. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002); see also
       Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11 (1996). Accordingly,
       notwithstanding the general rule of forfeiture, a reviewing court may consider an argument
       not raised below, particularly where, as here, the issue is one of law and is fully briefed by
       the parties on appeal. Edgar, 174 Ill. 2d at 11; People ex rel. Daley v. Datacom Systems
       Corp., 146 Ill. 2d 1, 27 (1991). Moreover, our appellate court often “relax[es] the harsh
       mandates of the waiver doctrine if [it] feel[s] that the particular issue would aid in
       maintaining a uniform body of precedent or if the interests of justice require the issue’s
       consideration.” Skidmore v. Throgmorton, 323 Ill. App. 3d 417, 420 (2001). Addressing the
       purely legal (and fully briefed) issue that Charles raises in this appeal would help to ensure
       a just result and to clarify the legal standards governing the enforcement of antenuptial
       agreements upon the death of a spouse. Accordingly, I would address the issue raised by

                                                 -4-
       Charles rather than deem it forfeited.
¶ 16        Turning to the merits, I believe that the trial court applied an improper standard in
       declaring the parties’ antenuptial agreement invalid and unenforceable. The court expressly
       found that Sherry’s decision to sign the antenuptial agreement before her marriage to Laverne
       was “voluntary and *** without duress or coercion.” The court also found that Sherry entered
       into the agreement with “full knowledge” and “without fraud.” In support of that finding, the
       court noted that: (1) the agreement was clear and unambiguous; (2) Sherry was in her forties
       at the time and had some degree of sophistication; (3) Sherry testified that she understood
       the purpose of the agreement and the parties acted in accord with the agreement after their
       marriage; (4) attorney Schott admonished Sherry about the purpose and terms of the
       agreement before Sherry signed it, and Sherry had an opportunity to ask Schott questions
       about anything she did not understand; and (5) Sherry knew the extent of Laverne’s assets
       before she signed the agreement, including Laverne’s antiques and both of his businesses.
¶ 17        Nevertheless, the trial court refused to enforce the parties’ antenuptial agreement because
       it found that the agreement was not “fair and reasonable.” The court reached this conclusion
       because it determined that the agreement did not guarantee Sherry an “equitable financial
       settlement in lieu of her waiver of her rights to property upon [Laverne’s] death.”
       Specifically, the court found the agreement unenforceable because it would result in a “great
       disparity” in the parties’ assets (which the court found to be unfair given the length of the
       marriage and Sherry’s commitment to Laverne’s antiquing business), and because it provided
       nothing for Sherry other than the “nominal” statutory spouse’s award. In short, the trial court
       found the agreement unfair because it felt that Sherry had received a relatively paltry
       financial settlement in lieu of her waiver of property rights, despite the fact that Sherry had
       agreed to that settlement with full knowledge and in the absence of any fraud, coercion, or
       duress. In other words, the court determined the “fairness” of the antenuptial agreement by
       comparing the amount of money that Sherry received with the value of Laverne’s estate, not
       by determining whether the agreement had been entered into knowingly and voluntarily.
¶ 18        The trial court believed that this particular standard of “fairness” was prescribed by the
       applicable case law.1 I disagree. Although we have applied the “equitable financial
       settlement” standard in two cases involving the dissolution of marriage (In re Marriage of
       Murphy, 359 Ill. App. 3d 289, 300 (2005), and Warren v. Warren, 169 Ill. App. 3d 226, 231
       (1988)), we have not always applied that particular standard when evaluating the validity of
       antenuptial agreements providing for the disposition of a spouse’s property upon the death
       of that spouse. In evaluating the “fairness” of an antenuptial agreement in the latter context,
       Illinois courts often focus on whether the party challenging the agreement signed the
       agreement under fraud or duress and whether she knew the extent of the other party’s assets
       before signing the agreement. See, e.g., Debolt v. Blackburn, 328 Ill. 420, 424-25 (1927);
       Petru v. Petru, 4 Ill. App. 2d 1, 12-13 (1954). These cases suggest that, if the complaining


               1
               The court stated that “[c]ase law says that in order for an antenuptial agreement to be fair
       and reasonable Illinois requires that the agreement guarantee both parties an equitable financial
       settlement in lieu of a waiver of their right to property or maintenance.”

                                                   -5-
       spouse signed the antenuptial agreement with full knowledge and there is no evidence of
       fraud or duress, courts will enforce the agreement upon the death of the other spouse even
       if the agreement makes no provision for the surviving spouse, at least when there are no
       children from the parties’ marriage. The amount of the surviving spouse’s financial
       settlement under the antenuptial agreement could be relevant as evidence that the surviving
       spouse was defrauded or was otherwise unaware of the other spouse’s assets when she signed
       the agreement. See Debolt, 328 Ill. at 425; Petru, 4 Ill. App. 2d at 12-13. However, a
       disparity in the assets awarded to the parties under the agreement, standing alone, cannot
       establish unfairness or invalidate an otherwise valid antenuptial agreement. Antenuptial
       agreements should be enforced as written unless there is evidence of duress or fraud (such
       as concealment of assets).
¶ 19        In my view, this rule makes perfect sense, particularly when applied to the circumstances
       presented in this case. When they decided to marry, Laverne was in his fifties and Sherry was
       in her forties. Each had children from a prior marriage. It is eminently reasonable that, before
       marrying Sherry, Laverne wanted to ensure that his assets passed to his existing children
       upon his death rather than to Sherry and her heirs. Thus, as a condition of marriage, Laverne
       presented Sherry with a prenuptial agreement that would accomplish that result. As the trial
       court found, Sherry was a sophisticated woman who understood the agreement’s provisions
       and was fully aware of the extent of Laverne’s assets before she signed the agreement. In my
       view, the parties’ agreement should be enforced as written. We should not invalidate an
       agreement freely and knowingly made by two competent adults simply because we feel that
       the agreement resulted in a financial arrangement that we happen to consider “unfair.” If the
       parties freely and knowingly chose a particular financial arrangement, we should honor their
       wishes even if it offends our subjective sense of fairness. To rule otherwise would be to
       interfere with the parties’ right to contract.2 I don’t believe that we should trample that
       fundamental right simply because we feel that one of the parties could have driven a harder
       bargain and gotten a better deal.
¶ 20        The trial court appeared to share my reluctance to interfere with the parties’ agreement
       when it noted that it was “typically not in the business of protecting parties from what [it]
       would call a bad bargain.” However, the trial court ultimately felt compelled to invalidate


               2
                The Illinois legislature recognized this principle when it enacted the Illinois Uniform
       Premarital Agreement Act (the Act) (750 ILCS 10/1 et seq. (West 2012)), which applies to any
       antenuptial agreement executed on or after January 1, 1990. The Act provides that an antenuptial
       agreement is unenforceable only if the party against whom enforcement is sought proves that: (1)
       he or she did not execute the agreement voluntarily; or (2) the agreement was unconscionable when
       it was executed and, before execution of the agreement, the party was not provided a fair and
       reasonable disclosure of the other’s property, did not waive the right to such disclosure in writing,
       and did not have (and could not reasonably have had) an adequate knowledge of the other’s property.
       750 ILCS 10/7(a) (West 2012). The Act omits the previous common law requirements that an
       enforceable agreement must also be “fair and reasonable” and must not result in an “unforeseen
       condition of penury” for the party challenging the agreement. Thus, the Act expresses a public policy
       of enforcing contracts as written absent evidence of fraud, duress, or lack of knowledge.

                                                   -6-
       the agreement because it concluded that antenuptial agreements were enforceable under
       Illinois common law only if they provided each party an “equitable” (i.e., proportional)
       financial settlement. As noted above, I disagree with that interpretation of the law. Although
       Illinois common law required antenuptial agreements to be “fair and reasonable,” I do not
       believe that this empowers (much less requires) courts to engage in a free-wheeling
       consideration of the “fairness” of the ultimate financial result agreed to by the parties,
       particularly in cases involving the disposition of assets upon the death of a spouse. Rather,
       I believe that courts should determine only whether the agreement was fairly made, i.e.,
       whether it was entered into voluntarily and with full knowledge.
¶ 21        In any event, even if the common law empowered us to engage in a more searching
       inquiry into the substantive “fairness” or “reasonableness” of the agreement, I fail to
       understand how the result sanctioned by the majority in this case can be considered either fair
       or reasonable. The majority’s ruling invalidates a contract knowingly and voluntarily made
       by the parties and deprives Laverne’s children of a portion of their inheritance, in clear
       violation of Laverne’s wishes. It does this despite the fact that, as the trial court found, Sherry
       knowingly and voluntarily agreed to take nothing from Laverne’s estate upon his death. The
       parties lived according to their antenuptial agreement without modifying the agreement (and,
       apparently, without any objection by Sherry) throughout their entire 24-year marriage, which
       ended with Laverne’s death. Now, after Laverne has died, the agreement has been declared
       invalid by judicial fiat. That is like a referee changing the rules of a game after the game has
       been played, which strikes me as the height of unfairness.
¶ 22        One final point bears mentioning. In my view, the conception of “fairness” espoused by
       the trial court and the majority in this case appears to be informed by paternalistic notions
       of marriage and an outdated conception of women’s economic power. Specifically, the trial
       court and the majority conclude that an antenuptial agreement cannot be “fair and
       reasonable” unless it affords a woman a proportional share of the assets of the husband who
       predeceased her, even if the woman voluntarily relinquished any claim to her husband’s
       estate despite having full knowledge of his assets. This view appears to rest on the
       assumption that women have unequal economic power and that courts need to protect
       women from their own contracts. While this view may have been justified in an earlier era,
       it makes little sense in today’s world. Women currently outperform men in college, comprise
       more than 50% of the matriculating law students, and compete with men in every aspect of
       economic life. More than 23 years ago, the Illinois legislature enacted a public policy
       reflective of modern economic realities by passing the Act, which requires courts to enforce
       antenuptial agreements so long as they are knowingly and voluntarily made. (As noted above,
       the Act does not allow courts to invalidate an antenuptial agreement merely because it results
       in a disproportionate allocation of assets to one of the parties.) Unlike the Act, the prior
       common law rule (which applies in this case) requires courts to inquire into the “fairness”
       and “reasonableness” of antenuptial agreements. However, in the context of agreements
       governing the disposition of assets upon the death of a spouse, even some pre-Act cases
       suggest that we should determine the “fairness” of the agreement by reference to the parties’
       knowledge and voluntariness when executing the agreement, not the amounts they receive


                                                  -7-
under the agreement. See, e.g., Debolt, 328 Ill. at 424-25; Petru, 4 Ill. App. 2d at 12-13.3 I
believe that we should apply those cases rather than older cases (or any dissolution cases)
which follow more outdated and paternalistic rules.




        3
        Although the common law (unlike the Act) requires courts to ensure that an antenuptial
agreement does not result in an “unforseen condition of penury” for the party opposing the
agreement, the trial court expressly found that the agreement in this case did not put Sherry in a state
of penury.

                                              -8-
