                                  Illinois Official Reports

                                          Appellate Court




                         In re Marriage of Chez, 2013 IL App (1st) 120550




Appellate Court              In re MARRIAGE OF KATHERINE L. CHEZ, Petitioner-Appellee,
Caption                      and RONALD L. CHEZ, Respondent-Appellant.



District & No.               First District, Second Division
                             Docket No. 1-12-0550


Filed                        November 26, 2013



Held                         In dissolving the parties’ marriage, the trial court did not err in finding
(Note: This syllabus         that the joint property provision of the parties’ premarital agreement
constitutes no part of the   was clear and unambiguous to the extent that it required an equal
opinion of the court but     distribution of the proceeds of the sale of their joint property with no
has been prepared by the     reimbursement for costs paid by either party, and any testimony of
Reporter of Decisions        petitioner concerning her oral agreement to repay her portion of the
for the convenience of       down payment for one jointly held property was irrelevant in view of
the reader.)                 the provision of the premarital agreement requiring any amendments
                             to be made in writing.




                             Appeal from the Circuit Court of Cook County, Nos. 06-D-5490,
Decision Under
                             06-CH-4412 cons.; the Hon. Thomas J. Kelly and the Hon. William S.
Review                       Boyd, Judges, presiding.



Judgment                     Affirmed.
     Counsel on               Schwartz & Kanyock, LLC, of Chicago (Andrew R. Schwartz,
     Appeal                   Thomas Kanyock, and Karen I. Jeffreys, of counsel), for appellant.

                              Gozdecki, Del Giudice, Americus & Farkas, LLP (Richard A.
                              Del Giudice and Jeffery M. Heftman, of counsel) and William P.
                              White III, Ltd. (William P. White III, of counsel), both of Chicago, for
                              appellee.




     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Presiding Justice Quinn and Justice Pierce concurred in the judgment
                              and opinion.


                                               OPINION

¶1         Respondent, Ronald L. Chez, appeals the order of the circuit court entering judgment on
       the dissolution of his marriage to petitioner Katherine L. Chez (now known as Katherine
       Malkin). On appeal, Ronald contends that the trial court (1) erred in finding that the joint
       property provision of the parties’ premarital agreement was clear and unambiguous, where the
       agreement was silent on how to apportion costs when distributing joint property upon
       dissolution of marriage; and (2) abused its discretion in allowing Katherine to testify in
       contradiction to her prior judicial admissions regarding the parties’ Carmel property. For the
       following reasons, we affirm.

¶2                                          JURISDICTION
¶3         The trial court entered the judgment for dissolution of marriage on August 5, 2009. Both
       parties moved to reconsider which the trial court resolved on October 14, 2009. Ronald filed a
       motion for sanctions on October 15, 2009, and the trial court entered an order on the motion on
       January 20, 2012. On February 17, 2012, Ronald filed his notice of appeal. This court has
       jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
       final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶4                                         BACKGROUND
¶5         Ronald and Katherine were married on April 17, 1993. At the time of marriage, Ronald
       was a successful investor of public and private companies, and Katherine worked as a
       successful real estate broker. Each had been married before and had children from their prior
       marriages.
¶6         On April 14, 1993, prior to their marriage, Ronald and Katherine entered into a premarital
       agreement (PMA). The PMA stated that it represented the parties’ “desire to fix and determine
       the rights and claims that will accrue to them, respectively, in the estate and property of the
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     other by reason of their marriage and to accept the provisions hereof in lieu of and in full
     discharge, settlement and satisfaction of all such rights and claims.”
¶7       Ronald and Katherine agreed, “[e]xcept as expressly provided otherwise in the following
     provisions of this Agreement,” that each party “shall control and manage [his or her] Separate
     property” at his or her own discretion. In the PMA, “Separate property” included:
                  “(a) The beneficial interests and assets of the respective parties prior to the
              marriage contemplated under this Agreement, including those listed on the attached
              Exhibits‘A’ and ‘B’, which beneficial interests and assets constitute the property either
              nowowned by such party or in which such party now has a beneficial interest;
                  (b) Any property acquired by the respective parties after the marriage contemplated
                  under this Agreement by gift, bequest, devise, descent or exercise of power of
              appointment,whether or not such acquired property shall be outright or in trust;
                  (c) The respective parties’ non-marital property denominated as such by the Illinois
              Marriage and Dissolution of Marriage Act, Section 503(a) (Ill. Rev. Stat. Ch. 40,
              Section 503(a)) as in effect at the date hereof;
                                                      ***
                  (f) Any property acquired subsequent to the date of this Agreement and placed in
              the name of one of the parties shall be in the Separate Property of the party so named.
                  (g) Any property designated as either party’s Separate Property by the valid
              agreement of the parties.”
     The PMA also provided that “no property of the parties shall be treated as marital property
     within the meaning of Illinois law or similar statutes or community property or
     quasi-community property law of any other jurisdiction in which the parties, or either of them,
     shall be domiciled or reside. There shall exist a presumption that there is no unintentional
     creation of marital property or unintentional transmutation of Separate property into marital
     property.”
¶8       Upon dissolution of the marriage, the PMA provided that “neither [Katherine nor Ronald]
     shall have the right to support, maintenance, alimony, equitable distribution, special equity, or
     any interest of any kind in the Separate Property of the other, and each of the parties shall be
     entitled to his or her own Separate Property.” The PMA also provided that “[u]nless the parties
     agree otherwise in writing to the contrary, any account or other property as to which the parties
     take title in joint tenancy, tenancy by the entirety or tenancy in common shall be hereinafter
     referred to as ‘Joint Property’ and all proceeds of sale of, property acquired in exchange for,
     increase in value of, income from, gains generated by and distributions of Joint Property shall
     also be Joint Property. In the event of a dissolution of the parties’ marriage, all Joint Property
     shall be divided equally between the parties.”
¶9       The PMA expressly stated that it “contains the entire understanding of the parties hereto.
     No representations, warranties, promises, covenants or undertakings, written or oral, other than
     those expressly herein set forth shall be binding on the parties hereto. The validity,
     enforceability, interpretation and administration of this agreement shall be determined under
     the laws of Illinois.” During the dissolution proceedings, the parties agreed that the PMA
     reflected their intent to opt out of the Illinois Marriage and Dissolution of Marriage Act (the

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       Marriage Act) (750 ILCS 5/101 et seq. (West 2006)) and waive their marital rights against the
       property of the other spouse.
¶ 10        Ronald and Katherine engaged in a number of successful real estate investments prior to
       and during their marriage. These investments were generally titled in Ronald’s name only. The
       parties’ personal residences, including their Chicago, Illinois, residence (Astor) and their
       California vacation home (Carmel) were titled in joint tenancy.
¶ 11        On March 7, 2006, Ronald filed a three-count complaint in chancery court seeking a
       declaration that the parties invested in three properties (including Astor and Carmel) as joint
       ventures, and to compel the sale and distribution of proceeds from the properties according to
       the terms of the oral joint venture. Ronald argued that in the joint ventures, the parties agreed
       that the acquisition, carrying costs and maintenance of the properties would be recouped upon
       sale with the remaining proceeds split equally between the parties. Katherine filed a petition
       for dissolution of marriage on May 17, 2006, and the trial court subsequently consolidated the
       two cases.
¶ 12        Both parties filed summary judgment motions. While Ronald sought to characterize
       Carmel and another property as joint ventures, Katherine sought a declaration that Carmel and
       Astor were joint properties within the meaning of the PMA. On June 3, 2008, the trial court
       granted Katherine’s motion and denied Ronald’s motion. It determined that the Carmel and
       Astor properties were joint properties within the meaning of the PMA because they were titled
       in joint tenancy. It also found no evidence that the parties entered into an oral joint venture
       agreement regarding any of the properties in question.
¶ 13        Ronald filed a claim for contribution on June 18, 2008. Katherine filed an answer asserting
       the affirmative defense of conversion, arguing that Ronald converted jointly owned property
       for personal use and therefore could not recover for contribution. Ronald moved to strike this
       defense as insufficient in law, but the trial court denied Ronald’s motion.
¶ 14        On August 5, 2009, the trial court issued its judgment for dissolution of marriage and
       denied Ronald’s contribution claim. The trial court acknowledged that although the PMA did
       not expressly address how to divide expenses paid on joint properties, it was unambiguous, it
       did not provide for contribution claims against either party’s interest in joint properties, and it
       clearly disposed of joint property based solely upon title rather than the parties’ contributions
       to the properties. The parties filed motions to reconsider, and the trial court denied Katherine’s
       motion and granted Ronald’s in part. However, it left intact its determination as to the Astor
       and Carmel properties at issue in this appeal. Ronald filed a motion for sanctions which the
       trial court finally resolved on January 20, 2012. Ronald filed this timely appeal.

¶ 15                                           ANALYSIS
¶ 16       On appeal, Ronald contends that the trial court erred in determining that the parties’ PMA
       was unambiguous and that its clear terms required the equal distribution of proceeds from the
       sale of joint property, with no reimbursement for costs paid by either party. Premarital
       agreements are contracts and, as such, the rules governing contract interpretation apply. In re
       Marriage of Best, 387 Ill. App. 3d 948, 949 (2009). The primary objective of contract
       interpretation is to ascertain the intent of the parties. Gallagher v. Lenart, 226 Ill. 2d 208,
       232-33 (2007). In determining the parties’ intent, courts must view the contract as a whole and
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       not focus on isolated terms or provisions. Id. at 233. If the language of the contract is clear and
       unambiguous, the intent of the parties is ascertained solely from the words of the contract,
       given their plain and ordinary meanings. Virginia Surety Co. v. Northern Insurance Co. of New
       York, 224 Ill. 2d 550, 556 (2007).
¶ 17        A contract is ambiguous, however, if it is susceptible to more than one reasonable
       interpretation. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). The mere fact that the parties
       disagree on the interpretation of a contract term does not render the term ambiguous. William
       Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324, 334 (2005). Absent ambiguity,
       courts must interpret a contract by its clear language and not according to the parties’
       subjective interpretations. Id. at 335. Whether a contract is ambiguous is a question of law
       reviewed de novo. Cincinnati Insurance Co. v. Gateway Construction Co., 372 Ill. App. 3d
       148, 151 (2007).
¶ 18        Ronald and Katherine were successful professionals in their respective fields prior to their
       marriage. Each had been married previously and had children from their prior marriages. Both
       had accumulated property and assets, and by entering into the PMA, they sought to address the
       legal effect their marriage would have on those assets. The PMA expressly states that it reflects
       the intent of Ronald and Katherine “to fix and determine the rights and claims that will accrue
       to them, respectively, in the estate and property of the other by reason of their marriage and to
       accept the provisions hereof in lieu of and in full discharge, settlement and satisfaction of all
       such rights and claims.” Furthermore, the PMA “contains the entire understanding of the
       parties hereto. No representations, warranties, promises, covenants or undertakings, written or
       oral, other than those expressly herein set forth shall be binding on the parties hereto.”
¶ 19        The PMA states that Ronald and Katherine agree that each “shall control and manage [his
       or her] Separate Property *** at [his or her] own discretion.” The agreement then defines
       “Separate Property” as including property the parties owned prior to marriage and the parties’
       nonmarital property as defined in section 503(a) of the Marriage Act. As for property acquired
       after the marriage, separate property includes any property acquired by gift, bequest, devise,
       descent or by appointment, or property placed in the name of one of the parties. They agreed
       that “no property of the parties shall be treated as marital property within the meaning of
       Illinois law” and a presumption exists “that there is no unintentional creation of marital
       property or unintentional transmutation of Separate Property into marital property.” In effect,
       Ronald and Katherine agreed to opt out of coverage under the Marriage Act and to set their
       own rules governing their property.
¶ 20        Section 7 of the PMA provides for the distribution of property upon dissolution of the
       parties’ marriage. It provides that neither Ronald nor Katherine “shall have the right to support,
       maintenance, alimony, equitable distribution, special equity, or any interest of any kind in the
       Separate Property of the other, and each of the parties shall be entitled to his or her own
       Separate Property.” Section 7 also addresses the distribution of another type of property the
       parties may acquire during marriage: joint property. This section contains the only reference to
       joint property found in the PMA. It states:
                    “Unless the parties agree otherwise in writing to the contrary, any account or other
               property as to which the parties take title in joint tenancy, tenancy by the entirety or
               tenancyin common shall be hereinafter referred to as ‘Joint Property’ and all proceeds
               of sale of, property acquired in exchange for, increase in value of, income from, gains
                                                    -5-
                generated byand distributions of Joint Property shall also be Joint Property. In the event
                of a dissolution of the parties’ marriage, all Joint Property shall be divided equally
                between the parties.” (Emphasis added.)
¶ 21       According to the plain terms of the PMA, upon dissolution of their marriage, Ronald and
       Katherine retain ownership and control over their separate property and any proceeds
       stemming from that property. However, any joint property “shall be divided equally between
       the parties.” The trial court below determined that the Carmel and Astor properties at issue
       here were joint properties within the meaning of the PMA because they were titled in joint
       tenancy. Therefore, it distributed the properties equally between Ronald and Katherine upon
       dissolution of their marriage. We find no error in the trial court’s determination.
¶ 22       Ronald, however, argues that he should be reimbursed for the costs he paid from his
       separate property toward the joint properties before distribution of the joint properties. He
       points out that the PMA does not address the issue of cost reimbursement for the joint
       properties and therefore we must look to Illinois law governing joint tenancy and the rights of
       joint tenants and co-debtors to contribution. Ronald does not provide authority to support his
       contention.
¶ 23       Instead, general contract law in Illinois provides that if a contract purports on its face to be
       the complete agreement between the parties, courts should not add terms about which the
       agreement is silent. Schuch v. University of Chicago, 87 Ill. App. 3d 856, 859 (1980). The
       PMA states that it “contains the entire understanding of the parties hereto. No representations,
       warranties, promises, covenants or undertakings, written or oral, other than those expressly
       herein set forth shall be binding on the parties hereto.” The PMA states simply that upon
       dissolution of Ronald and Katherine’s marriage, “all Joint Property shall be divided equally
       between the parties.” The agreement has no provision for the reimbursement of costs paid
       toward joint property prior to distribution. This court will not add terms to an otherwise clear
       and complete agreement between the parties. Id.
¶ 24       Ronald also argues that he should be reimbursed for his costs pursuant to his common-law
       contribution rights as a joint tenant and spouse. He contends that the trial court erred in
       dividing Carmel and Astor equally “without regard for the parties’ widely differing
       investments” in the properties. He argues that “Katherine did not pay her fair share, and she
       must now reimburse Ronald to ‘equalize’ her obligations with her benefits. Otherwise, she is
       unjustly enriched at Ronald’s expense, and he is treated unequally.” He contends that since this
       right of contribution arises outside of marriage, it is not governed by the PMA nor could the
       PMA eliminate this right. Ronald’s brief cites to numerous cases holding that common-law
       contribution rights as to property held in joint tenancy apply to spouses as well as to unmarried
       parties.
¶ 25       However, a husband and wife may, “by agreement, exclude the operation of law and
       determine for themselves what rights they will have in each other’s property.” In re Marriage
       of Burgess, 123 Ill. App. 3d 487, 489 (1984). In fact, the Marriage Act expressly recognizes
       that the parties may, by agreement, exclude the operation of marital property laws. See 750
       ILCS 5/503(a)(4) (West 2010). The PMA states that it represents the parties’ “desire to fix and
       determine the rights and claims that will accrue to them, respectively, in the estate and property
       of the other by reason of their marriage and to accept the provisions hereof in lieu of and in full
       discharge, settlement and satisfaction of all such rights and claims.” The parties here chose to
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       exclude the operation of law and to determine for themselves their respective property rights
       that would accrue to them by reason of their marriage. The PMA does not state that
       common-law contribution rights apply in the distribution of joint property upon dissolution of
       marriage. Rather, it states that its provisions should be taken “in lieu of and in full discharge”
       of all common-law marital property rights and claims. The PMA provides only that joint
       property would be equally divided between the parties with no mention of costs or from whose
       funds the purchase of the joint property originated. We are not persuaded by Ronald’s
       argument.
¶ 26        Ronald also takes issue with the trial court’s alternative ruling that even if the Marriage Act
       did apply to the joint property issue here, the equities lie with Katherine when dividing joint
       debt and/or expenses. As discussed above, we have determined that the terms of the PMA are
       clear and unambiguous. We need not address whether the trial court erred in making an
       alternative ruling based upon the Marriage Act because we find that by entering the PMA the
       parties opted out of having the Marriage Act govern their property issues. A reviewing court
       may affirm the trial court’s judgment on any basis appearing in the record, regardless of
       whether the trial court relied on that basis or whether the trial court’s reasoning was correct.
       First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 204 (2007).
¶ 27        Ronald’s final contention is that the trial court improperly admitted Katherine’s trial
       testimony regarding payments relating to Carmel which contradicted her earlier judicial
       admissions. He refers to testimony Katherine gave on September 8, 2008, in which she
       discussed how she would pay her share of the down payment on the Carmel property and that
       Ronald never told her he expected Katherine to pay back his costs. However, Ronald states that
       Katherine’s Illinois Supreme Court Rule 216 (eff. May 1, 2013) admissions included
       statements that Ronald advanced her share of the Carmel down payment and that she agreed to
       repay him. He argues that the trial court’s admission of Katherine’s September 8, 2008,
       testimony contradicting her Rule 216 admissions warrants reversal. See Moy v. Ng, 371 Ill.
       App. 3d 957, 960-61 (2007) (Rule 216 admissions are incontrovertible and effectively
       withdraw a fact from contention).
¶ 28        Whatever error may have occurred here, however, does not affect our decision. The trial
       court did not admit Katherine’s testimony unconditionally. The transcript of the proceeding
       shows that when Katherine started to testify on this issue, Ronald’s counsel objected arguing
       that the issue was covered in the Rule 216 requests. The trial court allowed the testimony,
       reasoning that it wanted to see what questions would be asked, and if her answers specifically
       contradicted any Rule 216 admissions, it would allow a motion to strike. The briefs do not state
       that Ronald filed a motion to strike, nor do they point to the record where the motion can be
       found.
¶ 29        Finally, we have determined that the joint tenancy provision of the PMA is clear and
       unambiguous. The joint tenancy provision of the PMA specifically states that “[u]nless the
       parties agree otherwise in writing to the contrary, any *** property as to which the parties take
       title in joint tenancy *** shall be hereinafter referred to as ‘Joint Property’ and upon
       dissolution of marriage, “all Joint Property shall be divided equally between the parties.” Any
       testimony regarding payments related to the Carmel property, however, referred to oral
       agreements allegedly made by the parties. The provision requires that any agreements made
       between the parties that amend the clear meaning of joint property must be in writing.
                                                     -7-
       Therefore, Katherine’s testimony regarding any oral agreements is not relevant to the
       interpretation of the PMA.
¶ 30       For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 31      Affirmed.




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