                              ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           In re Marriage of Nilles, 2011 IL App (2d) 100528




Appellate Court               In re MARRIAGE OF JOHN J. NILLES, Petitioner-Appellee, and
Caption                       JUDITH L. NILES, Respondent-Appellant.



District & No.                Second District
                              Docket No. 2-10-0528


Filed                         August 9, 2011


Held                          The appellate court reversed the trial court’s modification of petitioner’s
(Note: This syllabus          maintenance obligation 10 years after the parties’ settlement agreement,
constitutes no part of        including the maintenance provision, was incorporated into the judgment
the opinion of the court      dissolving their marriage, since the trial court based the modification on
but has been prepared         the finding of unconscionability due to financial reversals suffered by
by the Reporter of            petitioner that rendered him unable to meet his maintenance obligations,
Decisions for the             but the agreement provided that maintenance was subject to modification
convenience of the            only upon the death of one of the parties or respondent’s marriage or
reader.)
                              cohabitation with another man, and a finding of unconscionability had to
                              be founded on the parties’ economic positions immediately following the
                              agreement, not on their positions 10 years later.


Decision Under                Appeal from the Circuit Court of Du Page County, No. 98-D-3239; the
Review                        Hon. Linda E. Davenport, Judge, presiding.



Judgment                      Reversed.
Counsel on                  Sarane C. Siewerth, Deborah A. Carder, and Mark A. Wirtz, all of
Appeal                      Schiller, DuCanto & Fleck LLP, of Chicago, for appellant.

                            No brief filed for appellee.


Panel                       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                            Justices Burke and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1          Respondent, Judith L. Nilles, appeals from the trial court’s order modifying the
        maintenance obligations of petitioner, John J. Nilles, under the parties’ marital settlement
        agreement. Respondent contends that the trial court lacked the authority to modify
        petitioner’s maintenance obligations, because the parties’ agreement expressly provided that
        the maintenance was nonmodifiable and because the parties’ agreement could not be declared
        unconscionable 10 years after it was incorporated into the judgment of dissolution. For the
        reasons that follow, we reverse.

¶2                                         BACKGROUND
¶3          In February 1999, the trial court entered a judgment dissolving the marriage of the
        parties. The judgment of dissolution incorporated a marital settlement agreement between
        the parties. The agreement provided the following with respect to maintenance:
                 “2.1. The Husband covenants and agrees that he will pay to the Wife as and for
            permanent non-modifiable maintenance, the sum of Eight Thousand Dollars ($8,000.00)
            per month commencing on the first day of the month following the effective date of this
            Agreement and continuing on the first day of each month thereafter until said obligation
            is terminated upon the provisions of Article II, paragraphs [sic] 2.3 of this Article.
                 2.2. The parties acknowledge and stipulate that the payments set forth in this Article
            shall not be subject to modification for any reason whatsoever pursuant to the provisions
            of Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.
                 2.3. Without regard for any provision hereof to the contrary, the Husband’s obligation
            to pay and the Wife’s right to receive the payments set forth in this Article shall terminate
            only upon the first to occur of the following events:
                     (a) The death of the Husband;
                     (b) The death of the Wife;
                     (c) The remarriage of the Wife; or


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                  (d) The Wife’s cohabitation with a member of the opposite sex on a resident,
             continuing and conjugal basis.”
     The article on maintenance also provided that petitioner was to provide respondent with the
     use of a leased and insured Lincoln Towncar and to maintain, as security for the maintenance
     payments, a life insurance policy on himself in the amount of $1,250,000, with respondent
     named as the primary beneficiary. The agreement also provided that petitioner was to pay the
     premiums for respondent’s health insurance and that none of the provisions of the agreement
     could be modified by a court unless both parties consented.
¶4       Ten years later, in February 2009, petitioner filed a two-count petition to modify or
     vacate the judgment of dissolution. In count I, petitioner requested that his maintenance
     obligations be reduced because his financial circumstances had substantially changed such
     that he could no longer meet his maintenance obligations under the parties’ agreement. He
     contended that the trial court could modify his obligations because internal inconsistencies
     in the agreement rendered it ambiguous, thereby eliminating any clear statement that his
     maintenance obligations were nonmodifiable. Count II requested that the trial court vacate
     the judgment on the ground that the parties’ agreement was unconscionable because meeting
     his maintenance obligations would require petitioner to liquidate his assets, file for
     bankruptcy, and be unable to support himself.
¶5       In response, respondent filed a motion to strike and dismiss petitioner’s petition, arguing
     that the parties’ agreement was clearly nonmodifiable and that petitioner’s petition was
     legally insufficient. The trial court granted respondent’s motion to dismiss, finding that the
     parties’ agreement was nonmodifiable based upon its plain language.
¶6       Petitioner filed a motion to reconsider, arguing that the trial court failed to consider his
     contention that the parties’ agreement was unconscionable. The trial court granted the
     motion. Respondent then filed a response to petitioner’s petition. In her response, respondent
     denied any inconsistency in the parties’ agreement and argued that the plain language of the
     agreement made petitioner’s maintenance obligations nonmodifiable. In addition, respondent
     argued that petitioner’s request to vacate the judgment on unconscionability grounds was
     time-barred and that the parties’ agreement was not unconscionable when they entered into
     it.
¶7       The trial court found that, given petitioner’s change in circumstances, it would be
     unconscionable to enforce his maintenance obligations under the parties’ agreement.
     Accordingly, the trial court terminated petitioner’s obligations to maintain the life insurance
     policy, required petitioner to pay only the first $225 of the monthly cost of respondent’s
     supplemental Medicare health insurance, and terminated petitioner’s obligation to provide
     an insured Lincoln Towncar. In addition, the trial court reduced the maintenance payments
     to $3,000 per month, with the remaining $5,000 per month to accrue as a claim against
     petitioner’s estate. The order included a finding under Illinois Supreme Court Rule 304(a)
     (eff. Feb. 26, 2010) that there was no just reason to delay enforcement or appeal of the order.
¶8       Respondent timely appealed.




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¶9                                           ANALYSIS
¶ 10       On appeal, respondent contends that the trial court lacked the authority to modify the
       judgment.
¶ 11       Petitioner has not filed a brief on appeal. While we may not reverse summarily on that
       basis alone, we need not serve as petitioner’s advocate or search the record for a basis upon
       which to affirm. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d
       128, 133 (1976); Orava v. Plunkett Furniture Co., 297 Ill. App. 3d 635, 636 (1998). “[I]f the
       record is simple and the claimed errors are such that the court can easily decide them without
       the aid of an appellee’s brief, the court of review should decide the merits of the appeal.”
       Talandis, 63 Ill. 2d at 133. In addition, the trial court’s judgment may be reversed where the
       appellant’s brief, as supported by the record, demonstrates prima facie reversible error in that
       judgment. Id. The claimed error in this case is easily decided, and we conclude that the trial
       court’s decision must be reversed.
¶ 12       It is unclear whether the trial court granted petitioner relief based on count I or count II
       of the petition. Count I requested modification of petitioner’s obligations, which the trial
       court granted; yet it was count II in which petitioner argued that the parties’ agreement was
       unconscionable, which was the trial court’s basis. Although the trial court seems to have
       melded counts I and II, we need address only its determination that the parties’ agreement
       was unconscionable, as that was the ground on which the trial court granted petitioner relief.
¶ 13       We conclude that the trial court’s finding that the parties’ agreement was unconscionable
       was error, because the trial court’s finding of unconscionability was based on petitioner’s
       financial circumstances as they existed at the time of the hearing, not as they existed when
       the parties entered into the agreement. Two factors are considered when determining whether
       an agreement is unconscionable: (1) the conditions under which the agreement was made,
       and (2) the parties’ economic circumstances resulting from the agreement. In re Marriage
       of Richardson, 237 Ill. App. 3d 1067, 1080 (1992). “The determination of unconscionability
       focuses on the parties’ relative economic positions immediately following the making of the
       agreement.” (Emphasis added.) Id.; see also Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d
       1, 24 (2006) (“[T]he issue of unconscionability should be examined with reference to all of
       the circumstances surrounding the transaction.” (emphasis added)); In re Marriage of
       Tabassum, 377 Ill. App. 3d 761, 778 (2007) (“Courts examining whether postmarital
       agreements are substantively unconscionable have focused on the parties’ economic
       circumstances immediately following and resulting from the agreement.”).
¶ 14       Petitioner did not complain of the conditions under which the parties’ agreement was
       made, focusing instead on how the agreement affected his current economic conditions.
       When the judgment of dissolution was entered, the trial court specifically found that the
       terms of the parties’ agreement were conscionable. Yet, based on evidence that petitioner had
       suffered a decline in his financial circumstances in the 10 years since the entry of the
       judgment, the trial court found the terms to then be unconscionable. Petitioner’s economic
       position 10 years following the entry of the judgment cannot be said to be his economic
       position “immediately following the making of the agreement.” See Richardson, 237 Ill.
       App. 3d at 1080. Moreover, logic dictates that, if an agreement can be declared


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       unconscionable simply based upon a change in circumstances, agreements that may have
       been perfectly conscionable upon their making are perpetually subject to being declared
       unconscionable upon the changing of the winds. This would provide little security for the
       parties to contracts.
¶ 15       Because a finding of unconscionability must be based upon the parties’ economic
       positions immediately following the making of an agreement, the trial court’s modification
       of petitioner’s obligations under the agreement in this case, based upon a finding that
       petitioner’s circumstances 10 years later rendered the agreement unconscionable, was
       improper.

¶ 16                                   CONCLUSION
¶ 17      The judgment of the circuit court of Du Page County is reversed.

¶ 18      Reversed.




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