                                  Illinois Official Reports

                                         Appellate Court



                        In re Marriage of Akbani, 2014 IL App (5th) 130266



Appellate Court              In re MARRIAGE OF SALIM AKBANI, Petitioner-Appellant, and
Caption                      DONNA S. AKBANI, n/k/a Donna S. Robbins, Respondent-
                             Appellee.


District & No.               Fifth District
                             Docket No. 5-13-0266


Filed                        August 26, 2014


Held                         In dissolution proceedings, the trial court properly found that the
(Note: This syllabus         separation and divorce the parties entered into in 2008, including the
constitutes no part of the   provisions dividing the parties’ assets and obligations, was binding
opinion of the court but     and enforceable on the parties, but that the agreement the parties
has been prepared by the     entered into in 2010 was not binding, since that agreement contained
Reporter of Decisions        an attorney review clause not present in the earlier agreement, that
for the convenience of       clause was a condition precedent to the completion of the agreement,
the reader.)                 and the condition was not satisfied.


Decision Under               Appeal from the Circuit Court of St. Clair County, No. 08-D-555; the
Review                       Hon. Zina R. Cruse, Judge, presiding.



Judgment                     Affirmed.



Counsel on                   Richard W. Thompson, of Belleville, and Jill Laux Schubert, of Law
Appeal                       Offices of Jill J. Laux, L.L.C., of O’Fallon, for appellant.

                             Daniel J. Grueninger, of Law Office of Daniel J. Grueninger, of
                             Belleville, for appellee.
     Panel                    JUSTICE GOLDENHERSH delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Welch and Justice Stewart concurred in the
                              judgment and opinion.


                                               OPINION

¶1         Petitioner, Salim Akbani, appeals from a supplemental judgment of dissolution of marriage
       entered in the circuit court of St. Clair County which, inter alia, confirmed two previous orders
       of the trial court, the first being a finding that an April 2008 separation and divorce agreement
       (2008 agreement) entered into between petitioner and respondent, Donna S. Akbani, n/k/a
       Donna S. Robbins, is binding on the parties, and the second being a finding that a 2010
       handwritten agreement (2010 agreement) is not binding on the parties. The 2010 agreement
       was found unenforceable on the basis that it contained an attorney review clause, which was a
       condition precedent to the completion of the 2010 agreement, and that condition was not met.
       The supplemental judgment allocated property and debt between the parties pursuant to the
       2008 agreement and resolved the remaining issues between the parties not covered by the 2008
       agreement. Both parties filed motions to reconsider. Ultimately, the trial court entered an order
       granting in part and denying in part each party’s motion to reconsider. Petitioner filed a timely
       notice of appeal. The two issues raised by petitioner in this appeal are: (1) whether the 2008
       agreement is enforceable and (2) whether the trial court erred in finding the 2010 agreement
       unenforceable. We affirm.

¶2                                         BACKGROUND
¶3         The parties married on October 16, 1998. No children were born or adopted during the
       marriage. The parties each blame the other for the divorce.
¶4         The parties became business partners, opening Gateway Classic Cars in St. Louis in April
       1999, and a second classic car business, Streetside Classic Cars, in Charlotte, North Carolina,
       in September 2005. Petitioner was mainly involved in sales, while respondent handled
       administrative matters. However, respondent testified that petitioner was “definitely” involved
       in the day-to-day bookkeeping and accounting of the businesses.
¶5         Respondent ultimately spent more and more time at the Charlotte business. According to
       petitioner, respondent told him she wanted out of the marriage in March 2008. Petitioner
       claims he was blind-sided by respondent’s announcement and tried to persuade respondent to
       change her mind. He testified he was completely distraught and was willing to give respondent
       whatever she asked for in order to make her happy and save the relationship. He later learned
       that respondent was having an affair with Bob Mueller, one of their employees.
¶6         On the other hand, respondent testified the parties’ marriage was rocky for years, but the
       final straw for her came in late February or early March 2008, over a proposed business
       venture. Respondent and petitioner went to lunch at which time he informed her he wanted to
       build a $20 million project on a seven-acre tract the parties owned. The parties purchased the


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       tract with plans to build a new dealership on it. Petitioner now wanted to build a hotel,
       convention center, and restaurant on the property and showed respondent plans of his proposal.
       Respondent wanted no part of this business venture because she thought it was too risky.
¶7         According to respondent, petitioner told her if she was not happy in the marriage, she could
       leave. Respondent testified petitioner always told her that, but by April 2008, she had had
       enough and told him she believed that is what she should do. The parties then discussed how to
       split up their businesses and assets.
¶8         The parties agree respondent drafted the 2008 agreement, which divided most of the
       parties’ assets and businesses, but agree on little else. According to petitioner, respondent went
       from wanting nothing to wanting everything, and he kept revising the 2008 agreement to meet
       her demands in the hope of salvaging the relationship. Petitioner claimed he was in denial
       about the parties’ relationship even when the 2008 agreement was formalized on April 14,
       2008. He did not realize respondent was serious about the divorce until he came home from a
       trip in May and found that respondent had taken many items out of the marital residence in
       O’Fallon.
¶9         Respondent testified petitioner drafted the agreement on the day she told him she wanted
       out of the marriage. The parties discussed splitting the businesses, with petitioner taking the St.
       Louis business and respondent taking the Charlotte business. Respondent testified she did not
       provide petitioner with any of the language he used in drafting the 2008 agreement and made
       no changes to the 2008 agreement, except to change typographical and spelling errors.
¶ 10       The 2008 agreement provided, inter alia, that respondent would (1) receive the parties’
       condo in Charlotte, (2) take over the Charlotte business, beginning on May 1, 2008, (3) receive
       the parties’ 2003 Ford Expedition, and (4) receive a $135,000 cash settlement “for the business
       and personal separation and divorce.” The $135,000 was to be paid in installments, including
       $75,000 on May 1, 2008, from a then-existing line of credit and thereafter 12 installment
       payments of $5,000 per month. The 2008 agreement further provided that petitioner would (1)
       receive the marital home located in O’Fallon, (2) receive the parties’ land at Shafer Airfield,
       but only after he paid respondent the $135,000 settlement, and (3) take over the parties’ St.
       Louis business and any expenses incurred after April 20, 2008. The agreement also provided
       the parties would share equally in the costs of the divorce and the parties would provide for the
       payment of certain expenses pertaining to the Charlotte and St. Louis businesses, including
       sharing the employ of Bob Mueller. Petitioner’s exhibit 37 shows that under the terms of the
       2008 agreement petitioner would receive 40.17% of the marital property and respondent would
       receive 59.83% of the marital property.
¶ 11       Petitioner signed the agreement on April 18, 2008. Respondent signed the agreement on
       April 22, 2008, after petitioner faxed it to her in Charlotte. In accordance with the 2008
       agreement, petitioner filed for divorce on July 10, 2008, citing irreconcilable differences and
       noting that attempts at reconciliation had failed and further attempts were not in the best
       interests of either party. At the same time, petitioner filed a petition for a temporary restraining
       order, requesting an injunction against respondent concerning marital assets. Respondent took
       over the day-to-day operations in Charlotte, while petitioner remained in charge of the St.
       Louis operation.
¶ 12       On January 15, 2009, after a hearing, the trial court entered an order finding the 2008
       agreement between the parties was binding on the parties, specifically stating, “[T]he court
       finds that both parties are capable, financially-knowledgeable, and intelligent regarding the

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       parties’ assets prior to signing the Separation and Divorce Agreement in April 2008.” The trial
       court ordered the parties to comply with the terms of the 2008 agreement.
¶ 13        Unfortunately, this did not end the litigation. On May 22, 2009, petitioner filed an amended
       petition for dissolution of marriage, seeking a judgment of dissolution and an order requiring
       respondent to contribute to marital debts and expenses and to pay temporary and permanent
       maintenance to petitioner, as well as a determination of each party’s nonmarital and marital
       property and an equitable distribution of each. On October 29, 2009, respondent filed a petition
       for rule to show cause, alleging inter alia that petitioner failed to pay her the $135,000 cash
       settlement pursuant to the terms of the 2008 agreement and failed to make mortgage payments
       on the O’Fallon marital residence, thereby adversely affecting her credit. Respondent sought
       judgment in the amount of $135,000, plus interest, an order requiring the Shafer Airfield
       property or the marital home to be placed for sale in order to satisfy the judgment, and
       temporary maintenance, plus attorney fees and costs.
¶ 14        In May 2010, the parties participated in mediation in an attempt to reach an agreement on
       all remaining issues. The mediation was voluntary, not court-ordered. The parties’ attorneys
       were not present. The purpose of the mediation was to attempt to resolve issues that the 2008
       agreement did not resolve. A retired judge, James Radcliffe, presided over the mediation. At
       the end of the mediation, a handwritten agreement was signed by both of the parties. That
       agreement specifically stated, “The above parties, having submitted this matter to mediation,
       do now agree that their dispute has been compromised and settled on the following terms:
       Review and consultation with respective attorneys.” Thereafter, the 2010 agreement was typed
       into a 17-page document. Petitioner signed the typed 2010 agreement, but respondent, after
       consulting with her attorney, refused to sign it and refused to abide by its terms.
¶ 15        Petitioner then filed a motion for declaratory judgment or, in the alternative, to enforce the
       settlement agreement, seeking to enforce the 2010 agreement. On August 25, 2010, the trial
       court entered an order finding the review and consultation clause set forth above to be a
       condition precedent to the completion of the agreement and denying petitioner’s motion for
       declaratory judgment. As a result, the 2010 agreement was found not binding on the parties.
¶ 16        On November 17, 2010, an order was entered which dissolved the parties’ marriage,
       restored respondent’s maiden name, provided that both parties waived maintenance, and
       awarded each party his or her own life insurance policy. All other issues were reserved. A
       hearing on all remaining issues was scheduled for December 29, 2010.
¶ 17        On that date, a hearing was conducted, after which the case was taken under advisement.
       On June 8, 2012, the trial court entered a supplemental judgment of dissolution with regard to
       the disposition of property and debt which remained outstanding. Both parties filed motions to
       reconsider.
¶ 18        On April 26, 2013, the trial court entered an order granting in part and denying in part each
       party’s motion to reconsider. The judge was a different judge than the one who ruled on the
       applicability of the 2008 agreement and 2010 agreement. The new judge specifically stated
       that she would not “second guess[ ]” either the January 15, 2009, or the August 25, 2010,
       rulings by a different judge and that “neither party owes any additional amount to the other,
       except the $66,000 judgment against the Petitioner in favor of the Respondent.” The trial court
       struck the findings in paragraphs 16 and 21 of the supplemental judgment and amended other
       parts, making petitioner responsible for real estate taxes and insurance on the O’Fallon marital
       residence since 2007. The trial court also found that all other orders not inconsistent with its

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       order remain in full force and effect and denied any relief requested and not specifically
       addressed or granted. Petitioner filed a timely notice of appeal.

¶ 19                                                 ISSUES
¶ 20                                           I. 2008 Agreement
¶ 21       The first issue we are asked to address is whether the trial court erred in finding the 2008
       agreement enforceable. Petitioner contends the 2008 agreement is unenforceable because: (1)
       he was under duress and not in his right mind at the time he signed it due to the distress caused
       by respondent’s asking for a divorce and he felt pressured into giving respondent everything
       she asked for in order to give her space and time in which to change her mind and save their
       marriage; (2) it is unconscionable; and (3) it is based on mutual mistakes of fact. Respondent
       replies the trial court did not err in finding the 2008 agreement binding on the parties because
       the duress experienced by petitioner was nothing more than the normal anxieties and stress
       anyone undergoing a divorce goes through and certainly did not rise to the level where
       petitioner was deprived of his free will, the agreement is not unconscionable, and it does not
       present a mutual mistake of fact. We agree with respondent.
¶ 22       “Duress has been defined as including the imposition, oppression, undue influence or the
       taking of undue advantage of the stress of another whereby one is deprived of the exercise of
       his free will.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 215, 633 N.E.2d 225, 230
       (1994). It is generally accepted that “stress is common in dissolution proceedings.”
       In re Marriage of Flynn, 232 Ill. App. 3d 394, 401, 597 N.E.2d 709, 713 (1992). Stress alone
       does not prove duress. Flynn, 232 Ill. App. 3d at 401, 597 N.E.2d at 713. Even the stress of
       possibly losing custody of a child does not demonstrate that one lacked the ability to make a
       voluntary decision. See In re Marriage of Steadman, 283 Ill. App. 3d 703, 710, 670 N.E.2d
       1146, 1151-52 (1996). The person asserting duress has the burden of proving by clear and
       convincing evidence that he was bereft of the quality of mind essential in making the contract.
       In re Marriage of McCaskey, 167 Ill. App. 3d 860, 865, 522 N.E.2d 300, 303 (1988);
       In re Marriage of Riedy, 130 Ill. App. 3d 311, 314, 474 N.E.2d 28, 30 (1985).
¶ 23       Furthermore, a marital settlement agreement is unconscionable in cases where there is an
       absence of a meaningful choice on the part of one of the parties combined with contract terms
       which are excessively favorable to the other party. In re Marriage of Baecker, 2012 IL App
       (3d) 110660, ¶ 41, 983 N.E.2d 104. In order to rise to the level of being unconscionable, a
       settlement has to be “ ‘improvident, totally one-sided or oppressive.’ ” Baecker, 2012 IL App
       (3d) 110660, ¶ 41, 983 N.E.2d 104 (quoting In re Marriage of Gorman, 284 Ill. App. 3d 171,
       182, 671 N.E.2d 819, 827 (1996)). Such is not the case here.
¶ 24       Petitioner asserts that the loss of his marriage is analogous to the loss suffered in
       In re Marriage of Richardson, 237 Ill. App. 3d 1067, 606 N.E.2d 56 (1992), where the duress
       on the wife was found sufficient to warrant setting aside a postnuptial agreement as
       unconscionable. The instant case is distinguishable from Richardson for numerous reasons.
       First, in Richardson it was the husband who wanted a divorce and the agreement in question
       was signed only one week after the wife’s father had died. Richardson, 237 Ill. App. 3d at
       1080-81, 606 N.E.2d at 65. Second, the husband had his counsel find a second attorney for the
       wife after her first attorney recommended she not sign the agreement. Richardson, 237 Ill.
       App. 3d at 1081, 606 N.E.2d at 65-66. The first attorney was not explicitly terminated, and the
       second attorney was not aware the wife had previously been represented. Richardson, 237 Ill.

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       App. 3d at 1072-73, 606 N.E.2d at 60. The wife never met the second attorney until the
       meeting during which the agreement was signed, and she was at the meeting under false
       pretenses, having been told the meeting was for the purpose of exchanging titles between
       certain properties. Richardson, 237 Ill. App. 3d at 1074, 606 N.E.2d at 61. Third, the wife did
       not receive any letters or a copy of the agreement prior to the meeting and “had no independent
       knowledge of the assets or liabilities listed on the balance sheet.” Richardson, 237 Ill. App. 3d
       at 1074-75, 606 N.E.2d at 61. Finally, the economic circumstances of the parties rendered the
       contract unconscionable because the wife at most received only 7.55% of the parties’ assets
       and the husband fraudulently misrepresented the parties’ main asset of stock as a nonmarital
       asset in inducing respondent to sign the agreement. Richardson, 237 Ill. App. 3d at 1083-84,
       606 N.E.2d at 67.
¶ 25       In the instant case, the parties agree that petitioner wrote the 2008 agreement. Petitioner is
       an astute businessman who was ready to take on a $20 million project. He knew what assets the
       parties had amassed, and he signed the agreement before respondent. Respondent made no
       changes to the document, except to correct typographical and spelling errors. The facts of
       Richardson are in no way similar to the facts herein.
¶ 26       After careful consideration of the record before us, we unequivocally believe that the
       duress petitioner suffered as the result of the parties’ marital discord was in no way greater than
       the stress a party is under when he or she is faced with the possibility of losing custody of a
       child. The type of stress petitioner faced was no greater than the normal stress caused by a
       divorce. Likewise, petitioner has failed to convince us that the 2008 agreement is
       unconscionable.
¶ 27       Under the 2008 agreement, petitioner received the St. Louis business, which even he
       admitted was making more money than the Charlotte business that was awarded to respondent
       under the 2008 agreement. Petitioner submitted a spreadsheet in which he claims the actual
       division of property per the 2008 agreement left him only 17.35% of the marital assets, while
       respondent garnered 82.65% of the assets; however, petitioner’s exhibit 37, submitted during
       the first hearing, shows he received 40.17% of the parties’ assets, while respondent received
       59.83% of the assets. Our own review of the record shows that the division of assets is not so
       “totally one-sided” as to rise to the level of unconscionability necessary to overturn the trial
       court’s ruling. See In re Marriage of Foster, 115 Ill. App. 3d 969, 973, 451 N.E.2d 915, 919
       (1983).
¶ 28       We are also unconvinced by petitioner’s argument that the 2008 agreement is
       unenforceable because it is based on mutual mistakes of fact. Petitioner argues it is obvious the
       parties had different understandings about what the 2008 agreement meant and understood its
       terms differently. For example, with regard to the mortgage on the O’Fallon marital residence,
       respondent thought the 2008 agreement meant petitioner would take it over completely, while
       petitioner thought it meant he would pay it only until May 2008. According to petitioner,
       because the parties were under mistaken notions about what the agreement meant, it is
       unenforceable.
¶ 29       Whether a mutual mistake of fact has been shown is for the trial court to decide and should
       not be set aside on appeal unless the trial court’s decision is against the manifest weight of the
       evidence. In re Marriage of Shelton, 127 Ill. App. 3d 775, 781, 469 N.E.2d 618, 623 (1984). A
       judgment is against the manifest weight of the evidence only when an opposite conclusion is
       apparent or when the findings appear to be unreasonable, arbitrary, or not based upon the

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       evidence. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 461
       (1995). A property settlement should not be set aside merely because one of the parties has
       second thoughts. In re Marriage of Chapman, 162 Ill. App. 3d 308, 318, 515 N.E.2d 424, 431
       (1987).
¶ 30       Here, the record shows that petitioner took no action to contest the terms of the 2008
       agreement until a week before the January 15, 2009, hearing. Between April 2008, when the
       parties signed the agreement, and January 2009, both parties proceeded as if the agreement was
       in effect. Respondent moved out of the marital home in O’Fallon, took up residence at the less
       expensive condo in Charlotte, and took control of the Charlotte business, while petitioner
       continued to own and operate the more profitable St. Louis business and live in the more
       expensive O’Fallon residence. Pursuant to the agreement, petitioner filed for divorce in July
       2008, alleging irreconcilable differences. Petitioner continued to pay the mortgage on the
       O’Fallon residence until October 2008, thereby contradicting his own argument that he
       thought he only had to pay the mortgage until May 2008.
¶ 31       The record before us does not show that there was a mutual mistake of fact that would
       warrant vacating the 2008 agreement written by petitioner. Petitioner’s second thoughts about
       the 2008 agreement he wrote and signed are not enough to set it aside. It is well established that
       the law favors peaceful settlement of marital dissolution disputes. Guyton v. Guyton, 17 Ill. 2d
       439, 444, 161 N.E.2d 832, 835 (1959). Accordingly, we find the trial court did not err in
       finding the 2008 agreement enforceable.

¶ 32                                          II. 2010 Agreement
¶ 33        The second issue raised in this appeal is whether the trial court erred in finding the 2010
       agreement unenforceable. Petitioner asserts that respondent’s reliance on the attorney review
       provision in the 2010 agreement is misplaced and the trial court erred in finding it to be a
       condition precedent to the formation of a binding agreement between the parties. Respondent
       replies that the trial court correctly ruled that the 2010 mediation did not result in a binding
       contract. We agree with respondent.
¶ 34        As petitioner points out, the resolution of this issue depends on whether the attorney review
       provision in the 2010 agreement is a condition precedent to the formation of a binding contract.
       If the language is ambiguous, then the determination of its meaning is a question of fact, but if
       the language is unambiguous, then the construction of the alleged contract is a question of law.
       Interway, Inc. v. Alagna, 85 Ill. App. 3d 1094, 1098, 407 N.E.2d 615, 619 (1980). An
       ambiguity is not created by the fact that, as here, the parties do not agree upon an interpretation.
       Groshek v. Frainey, 274 Ill. App. 3d 566, 569, 654 N.E.2d 467, 470 (1995). Whether a contract
       is clear or ambiguous is a question of law for the court. Groshek, 274 Ill. App. 3d at 569, 654
       N.E.2d at 470. As such, we agree with petitioner that our review is de novo. In re Marriage of
       Mulry, 314 Ill. App. 3d 756, 758, 732 N.E.2d 667, 670 (2000).
¶ 35        In the instant case, the attorney review provision is plain and unambiguous in that, as a
       term of the contract, each party is allowed the opportunity to review and consult with his or her
       respective attorney. Parties may specifically provide that negotiations are not binding until a
       formal agreement is executed. Interway, Inc., 85 Ill. App. 3d at 1098, 407 N.E.2d at 618. While
       petitioner contends the review is a condition subsequent within the offer, we find there is no
       difference between the instant clause and an attorney approval clause.


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¶ 36       In Groshek, our colleagues in the First District specifically stated as follows:
                   “A contract which contains an attorney approval clause is appropriately construed
               as a qualified or conditional acceptance of the terms of that contract. Invocation of the
               clause triggers a rejection of the contract and, at times, a counteroffer. See generally 2
               Williston on Contracts § 6:13, at 104-18 (4th ed. 1991) (conditional acceptance occurs
               when a party to an agreement imposes as a condition of the bargain the favorable
               opinion of his lawyer).” Groshek, 274 Ill. App. 3d at 570, 654 N.E.2d at 470.
       The purpose of giving such broad latitude to an attorney is to give the parties who may not be
       sophisticated in such matters a chance to have their attorneys scrutinize the offer prior to final
       acceptance. Olympic Restaurant Corp. v. Bank of Wheaton, 251 Ill. App. 3d 594, 601, 622
       N.E.2d 904, 909 (1993).
¶ 37       The contested clause in Olympic Restaurant, which the Groshek court also relied upon, is
       similar to the clause in the instant case. In that case, the contested provision gave the parties’
       attorneys the right to “ ‘review and make modifications.’ ” Olympic Restaurant, 251 Ill. App.
       3d at 596, 622 N.E.2d at 906. Here, the clause provides for “[r]eview and consultation with
       respective attorneys.” Olympic Restaurant concerned a real estate sale, but the rationale used
       in deciding the case applies equally here:
                       “ ‘The purpose of such an attorney approval clause is to provide the purchaser
                   or seller with the opportunity of obtaining legal advice with respect to the
                   transaction, and its value lies in the fact that the contract may be canceled upon
                   receiving such advice. Parties to a real estate transaction are entitled to the benefit
                   of the judgment of a trusted counselor, and an approval contingency is designed to
                   accord this right to those who, for some reason, enter into a purchase and sale
                   agreement before reviewing the matter with their attorney [sic].’ [Citation.]
                   We believe this is sound logic and should apply in the present matter. The only
               reason to have an attorney review clause is to give the parties to a contract, who may
               not be sophisticated in matters relating to real estate and/or contracts, a chance to have
               their attorneys scrutinize the offer before final acceptance. In the present matter, if
               there was no way for the parties to get out of the October 25 contract during the review
               period, the review clause was meaningless and the attorney review process was a
               pointless exercise.” Olympic Restaurant, 251 Ill. App. 3d at 600-01, 622 N.E.2d at 909.
       Similarly, the parties in the instant case were also entitled to the benefit of counsel prior to
       making the 2010 agreement binding.
¶ 38       While the parties here are both savvy and sophisticated business owners, there is nothing in
       the record to suggest they are well versed in divorce matters. Each party was represented by an
       attorney who concentrates in family law matters. The parties agreed to voluntary mediation in
       the hope of coming to a final resolution of the remaining matters, but neither agreed to proceed
       pro se. Both parties agreed to the inclusion of the attorney review clause during mediation
       because neither party’s attorney was present at the mediation session where the 2010
       agreement originated. A clause was added to the agreement providing that it was subject to
       review and consultation with respective attorneys. If that clause is not viewed as a condition
       precedent to the formation of a contract, then it is rendered meaningless and would mean that
       the parties were ordered to proceed pro se even though they both had retained counsel.



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¶ 39       Petitioner asserts that in actuality the parties were not mediating during the session where
       the 2010 agreement was reached, but were creating a binding marital settlement which
       respondent’s lawyer agreed to by agreeing to the mediation. Petitioner’s argument is not
       supported by this record. The parties were involved in an informal, voluntary mediation
       session. The local rules regarding mediation specifically provide that during mediation “[i]f an
       agreement is reached in whole or in part, it shall be reduced to writing on the Memorandum of
       Agreement Form or attached thereto and signed by the parties and their counsel, if any, at the
       conclusion of the mediation.” (Emphasis added.) 20th Judicial Cir. Ct.–Annexed Mediation for
       Civil Cases IV(M) (Oct. 26, 2004). Because neither attorney was present at the mediation,
       neither attorney signed the 2010 agreement. By local rules, this was a nonbinding agreement.
¶ 40       During oral argument, petitioner’s attorney specifically asked this court for guidance with
       regard to future cases in which parties seek to reach a marital settlement agreement via
       mediation. The guidance we offer petitioner’s attorney is simple: be consistent. Represented
       parties cannot agree to proceed pro se and then include an attorney review clause in their
       mediation agreement. If the mediation session is truly meant to result in a binding marital
       settlement agreement, the parties should specifically state they are agreeing to proceed pro se,
       and an attorney review clause should not be included in the agreement, or counsel should be
       present, participate, and sign the resulting memorandum.
¶ 41       Finally, we point out that there is no evidence of bad faith in respondent’s rejection of the
       2010 agreement. Respondent rejected the 2010 agreement after review and consultation with
       her attorney within a few days after the mediation session. Respondent’s rejection of the 2010
       agreement after review and consultation with her attorney means no contract was formed, and,
       thus, the trial court properly refused to order respondent to sign the 17-page marital settlement
       agreement which was prepared after the mediation session.

¶ 42                                         CONCLUSION
¶ 43       For the foregoing reasons, we hold that the trial court did not err in finding the 2008
       agreement to be binding, but that the 2010 handwritten notes which were later turned into the
       2010 agreement were not. We do not agree with petitioner that it is inequitable to hold him to
       the 2008 agreement, but not hold respondent to the 2010 agreement. The 2010 agreement
       contained an attorney review clause not present in the 2008 agreement. Accordingly, we affirm
       the judgment of the circuit court of St. Clair County in its entirety.

¶ 44      Affirmed.




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