2013 I LApp (3d) 120565 Opinion filed Novembe r 26, 2013

I N THE APPEL LATE COURT OF I L L I NOI S THI RD DI STRI CT A.D., 2013 In reESTATE OF LAVERNE G. CHAN EY, Dec ease d (Charle s Chaney , Ex ecutor of the Estate of L aver ne G. Chane y , Dec ease d, Petitioner-Appellant,
v. Sherry S. Chaney , Respondent-Appe llee). ) ) ) ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of the 14th Judi cial Circuit, Whit eside County , I llinois
Appea l No. 3-12-0565 Circuit No. 10-P-21
Honora ble Stanley B. Steines, J udg e, Presiding
. J USTI CE CARTER delivered the judg ment of the c ourt, with opinion. J ustice O' Br ien conc urre d in the judgme nt and opinion. J ustice Holdridg e dissented, with opinion.
OP INION ¶ 1 In the context of a probate proc eeding , petitioner, Charle s Chaney , as the e x ecutor of the estate of his late fathe r, L aver

ne G. Chane y , filed a pe tition for miscellaneous re lief, see king, amongother thing s, a dec lara tion from the trial cour

t that the antenuptial agree ment enter ed into betwee n L aver

ne and r espondent, Sherr

y S. Chaney , was va lid and binding a nd that it preclude d Sherry from re nouncingL aver

ne' s will and takingher statutory forc ed shar e of the estate a sL aver

ne' s surviving spouse (755 I L CS 5/ 2-8(a ) (West 2010)). A fter a n evidentiar

y hear ing, the trial court f

ound that the antenuptial a g ree ment was not fa ir and re asonable and that it was invalid and unenf

orce able a

nd denied Char les' s reque st for dec laratory relief . Charles a

ppeals. We affir m the trial court' s ruling. ¶ 2 FACTS ¶ 3 The issue ra ised in this appeal is a na rrow que stion of law, and we will only set forth those fac ts that are ne cessa ry for our deter mination of that issue. L aver ne and Sher

ry wer e marrie d on J uly

4, 1986, when L aver

ne wa s in his late fifties and Sherr y was in her

late for ties. At the time of the mar

riag e, L aver

ne had substantially

more a ssets than Sherry . Both L aver ne and Sherr y had bee n marrie d previously , and ea ch had c hildren fr om their prior mar riag es. The day befor e their ma

rriag e to ea ch other , L aver ne and Sher

ry went to the off

ice of L aver ne' s attorney and sig ned an a

ntenuptial ag ree ment that the attorne y had pre pare d. Amongother things, the a g ree ment prohibited either pe rson from r enouncingthe will of the other pe rson and
asser ting his or he r statutory

inheritanc e rights upon the other per son' s death. At the time that the ag ree ment was e x ecute d, L aver ne' s attorney

also had L aver

ne sig n an ac knowledgment that he had advise d L aver

ne that the a g ree ment was of " questionable va lidity " due to the limit ed provisions it contained for the support of Sherr y . ¶ 4 In Fe bruar

y 2010, afte r more tha

n 23 y ear s of marr iag e to Sherry , L aver ne passe d awa

y . At the time of his death, L aver ne still had substantially

more a ssets than Sherry . L aver ne had executed a w ill in 1979 during one of his previous marr iag es. The w ill named Charles a s executor of L aver

ne' s estate. Char les filed a pe tition t o admit the will to probate. Sherr y soug ht to renounc e the will and to take her statutory forc ed shar e of the estate a s L aver ne' s surviving
2spouse. Charles f iled a petition askingthe trial cour t to, among othe r thing s, decla re that the antenuptial agree ment was va lid and binding a nd that it prevente d Sherry from re nouncingthe will and asser

ting he r statutory

inheritanc e rights. ¶ 5 An evidentiar

y hear ing w as held on the pe tition. As part of the hea ring , the par

ties filed written closingarguments and made oral a rguments to the trial court on two diff ere nt dates. At the conc lusion of the hear ing, the trial court a pplied the leg al standar d set forth in In re M arriage of Murphy , 359 I ll. App. 3d 289, 299-300 (2005), f or ante nuptial ag ree ments executed prior to the 1990 ena ctment of the I llinois Uniform Prema rital Agree ment Act (750 I L CS 10/ 1 et seq . (West 2010)), that to be va lid and enfor cea ble, the agree ment had to be, among othe r thing s, fair and re asonable . The trial c ourt found that the a g ree ment did not provide an e quitable settlement for Sher ry in lieu of her inhe ritance rig hts, that it was not fair and r easona ble, and that it was invalid and unenf

orce able. The trial court, ther efor e, denie d Charles' s reque st for dec laratory relief . This appea l followed. ¶ 6 ANALYSI S ¶ 7 On appe al, Charles a rgues that the trial c ourt err ed in findingthat the antenuptial ag ree ment was invalid and une nforc eable . Charles doe s not challeng e the f actua l findings that underlie the trial court' s decision, a c halleng e which w ould have invoked a manifest we ight standard of

revie w on appe al. See Vancura v. Katris , 238 I ll. 2d 352, 373-74 (2010) (the trial court' s fac tual finding s will be aff irmed unless they

are ag ainst the manifest we ight of the evidenc e). Instead, Char les raise s a nar row que stion of law, that a standa rd of f airne ss less stringe nt than that stated in Murphy should have be en applied by the trial cour

t in determining the validity

of the a ntenuptial ag ree ment in this case bec ause the ag ree ment was trig g ere d by the
3death of

one of the spouses and not by the dissolution of the marriag e as it wa s in Murphy
. Be cause Charles ra ises a question of law , the standar d of re view on appe al is de novo . See id
. ¶ 8 As Sherry

corr ectly points out, however, Char les has for feited that argument by not raisingit in the trial court. It is well-settled law in I llinois that issues, theories, or a rguments not raised in the tr ial court a

re f orfe ited and may

not be ra ised for the first time on appea l. See, e.g. , Daniels v. Ande rson , 162 I ll. 2d 47, 58 (1994) (issues and the ories); Kiefer v. Rust-Ole um Corp. , 394 I ll. App. 3d 485, 493 (2009) (a rguments); Norway Tree Farm, Inc . v. Baughe r , 8 I ll. App. 3d 1061, 1062 (1972) ( "issues, que stions, point s or contentions not prese nted in the trial cour t and proper ly prese rved f

or re view will not be consider ed on appe al" ). De spite makingwritten and oral a rguments to the trial court a s to the validity of the a g ree ment, Charles did not at any time
asser t that a diffe rent standa

rd of f airne ss applied under

the fa cts of this case . Charles' s argument, there fore , has bee n forf eited on appe al. See id
. ¶ 9 Charles' s relianc e on Y ee v . City of Escondido, Cali fornia , 503 U.S. 519, 534-35 (1992) (new arguments may

be made on appea l as longas the unde rlying issue w as ra ised previously ), for his conc lusion to t he contr ary is mispl ace d. Y

eecites the for feiture rule that a pplies in the United States Supreme Court and not the f orfe iture rule that applies here . Whil e we rec og nize, as Charle s sugg ests, that the forf eiture r ule is a limitation on t he par ties and not on the cour

t (see Dillon v. Evanston Hospital , 199 I ll. 2d 483, 504-05 (2002)), Cha rles has not provide d us with any compellingrea son to relax the forfe iture rule in this ca se. ¶ 10 Even if we wer e to consider the merits of Char les' s arg ument on appea l, we would still have to uphold the tria l court' s ruling be cause there is simpl y no support in the law for Charles' s position t hat a diff

ere nt standard of

fairne ss should be applied. The c ase r elied on by Charles in
4support of that position, In re Estate of Cullen , 66 I ll. App. 2d 217, 220-26 (1965), a ddresse d an

issue of contra ct and statutory interpre tation as to whether cer tain languag e in an a

ntenuptial ag ree ment was suff

icient to bar the claimant fr om rec eivingthe statutory surviving spouse ' s
awa rd. As such, the Cullen decision in no way supports Charles' s argument in this appeal. Indeed, the case law in this area demonstrates tha

t I llinois courts have applied the same standar d of fa irness re g ardle ss of whethe r the a ntenuptial ag ree ment was trig g ere d by a dissolution of marria g e or by

the death of one of the spouses. See, e.g. , Murphy , 359 I ll. App. 3d at 299-300 (dissolution); Petru v. Pe tru , 4 I ll. App. 2d 1, 8-13 (1954) ( death of one of the spouses to the ag ree ment). ¶ 11 CONCLUSI ON ¶ 12 For

the fore g oing r easons, we aff irm the judg ment of the c ircuit court of Whit eside County
. ¶ 13 Affir

med. ¶ 14 JUS TI CE HOL DRI DGE, dissenting
. ¶ 15 I dissent. Charles ar gues that the trial c ourt err ed by applying a

n improper a

nd antiquated standard of

"f airne ss" in dete rmining whether the antenuptial a g ree ment signe d by the par ties is valid and enf

orce able. As a

n initial matter, even though Charles did not raise this argument befor e the tria l court, I

would not find the argument forf eited. As the ma

jority acknow ledg es, the doctrine of

forf eiture is an a dmonition t o the par ties, not a limit ation on the re viewingcourt' s jurisdiction. Dillon v. Evanston Hospital , 199 I ll. 2d 483, 505 (2002); see a lso Committee for Educational Rights v. Edgar , 174 I ll. 2d 1, 11 (1996). Acc ording ly , notwithstanding the g ener al rule of f orfe iture, a r eviewingcourt may consider a

n argument not raised be low, particula rly
5wher e, as he re, the issue is one of law a nd is fully

briefe d by

the par ties on appea l. Edgar , 174 I ll. 2d at 11; People e

x rel. Dale

y v. D atacom Syste ms Corp. , 146 I ll. 2d 1, 27 (1991). Moreove r, our appe llate cour

t often " relax [es] the har sh mandates of the waive r doctrine if [it ] feel[s] that the par ticular issue would a id in maintaining a unif orm body of pre cede nt or if the intere sts of justice requir e the issue' s considera tion." Skidmore v . Throgmorton , 323 I ll. App. 3d 417, 420 (2001). Addr essingthe pure ly leg al (a nd fully briefe d) issue that Charle s raises in this appea l would help to ensure a just result and to cla rify the leg al standar ds g overning the enf orce ment of antenuptial agree ments upon the dea th of a spouse. A ccor dingly , I would addre ss the issue raised by Charles ra

ther than de em it forfe ited. ¶ 16 Turningto the merits, Ibelieve that the trial court a pplied an improper

standard in decla ringthe par

ties' antenuptial agree ment invalid and unenf orce able. The court e x pressly found that Sherr

y ' s decision to sign the antenuptial agree ment befor e her marria g e to L aver

ne wa s "voluntar y and *** without duress or c oerc ion." The court a lso found that Sherry enter ed into the agree ment with "f

ull knowledg e" and " without fraud." In support of that finding , the cour t noted that: (1) the a g ree ment was c lear and unambiguous; (2) Sherr y was in her

40s at the time and had some deg ree of sophistication; (3) Sherr y testified that she unde rstood the purpose of the ag ree ment and the pa

rties' acte d in acc ord with the agree ment afte r their mar riag e; (4) attorney Schott admonished Sherry about the purpose and ter ms of the agree ment befor e Sherr y signe d it, and Sherr y had an oppor

tunity to ask Schott questions about any thing she did not understand; and (5) Sher ry knew the e x tent of L aver ne' s assets bef

ore she signe d the agree ment, including L aver ne' s antiques and both of his businesses.

6¶ 17 Ne verthe less, the trial cour t refuse d to enforc e the pa rties' antenuptial agree ment beca use it found that the ag ree ment was not " fair a nd rea sonable." The c ourt rea ched this conc lusion beca use it determined tha

t the ag ree ment did not gua rante e Sherr

y an " equitable f

inancial settlement in lieu of her

waiver of her rig hts to property

upon [L aver

ne' s] death." Spec ifically , the cour t found the agree ment unenfor cea ble bec ause it would re sult in a "great disparity " in the parties' assets (whic h the cour t found to be unfa ir g iven the leng th of the marriag e and Sher ry ' s commitment to L aver

ne' s antiquing business) , and bec ause it provided nothingfor Sher ry other than the " nominal" statutory spouse' s awa

rd. In short, the trial cour t found the agree ment unfair beca use it felt that Sherry

had re ceive d a re latively

paltry financ ial settlement in lieu of her waiver of prope rty

rights, despite the fa ct that Sherry had agree d to that settlement with full knowledg e and in the a

bsence of any

fra ud, coer cion, or dure ss. In other wor ds, the court deter mined the " fairne ss" of

the antenuptial a g ree ment by compar ing the amount of money that Sherry rec eived with the va lue of L aver ne' s estate, not by

deter mining whe ther the a g ree ment had been e ntere d into knowingly and voluntarily
. ¶ 18 The tr ial court be lieved that this particular standard of

"f airne ss" wa s presc ribed by the applicable case law. Idisag ree . Although w e have applied the " equitable f inancial se ttlement" 1 standard in two c ases involvingthe dissolution of marriag e ( In re the M

arriage of Murphy , 359 I ll. App. 3d 289, 300 (2005) and W arren v, W

arren , 169 I ll. App. 3d 226, 231 (1988)), w e have not alway s applied that par ticular standa

rd whe n evaluating the va lidity of ante nuptial

The c ourt stated that " [c] ase la w say s that in order f

or an a ntenuptial ag ree ment to be 1 fair a nd rea sonable I llinois require s that the agree ment guara ntee both par

ties an equitable financ ial settlement in lieu of a wa iver of the ir rig ht to property or maintena

nce." 7ag ree ments providing f or the disposition of a spouse' s proper ty upon the death of that spouse. In evaluating the " fairne ss" of an ante nuptial ag ree ment in the latter c ontext , I llinois courts ofte n focus on whe ther the pa

rty challeng ing the ag ree ment signe d the agree ment under f raud or duress and whe ther she kne w the extent of the other pa rty ' s assets bef

ore sig ning the ag ree ment. See, e.g. , Debot v. B lackburn , 328 I ll. 420, 424-45 (1928); Petru v. Pe tru , 4 I ll. App. 2d 1, 12-13 (1954). The se ca ses sug g est that, if the complainingspouse sig ned the a ntenuptial ag ree ment with full knowledg e and the re is no evide nce of fra ud or dure ss, courts will enforc e the ag ree ment upon the death of the other spouse even if the agree ment makes no provision for the surviving spouse , at least whe n there are no children f rom the par

ties' marria g e. The amount of the survivingspouse' s financia l settlement under the a ntenuptial ag ree ment could be r eleva nt as evidenc e that the survivingspouse was de fra uded or w as otherw ise unawa re of the other spouse ' s assets whe n she sig ned the a g ree ment. See Debot , 328 I ll. at 425; Petru , 4 I ll. App. 2d at 12-13. Howeve r, a disparity

in the assets aw arde d to the parties unde r the a g ree ment, standingalone, cannot e stablish unfairness or invalidate an othe rwise va lid antenuptial ag ree ment. Antenuptial ag ree ments should be enfor ced a s written unless there is evidence of dure ss or fra ud (such a s
conce alment of a ssets). ¶ 19 In my

view, this rule make s perf ect se nse, par

ticularly when a pplied to the circ umstances prese nted in this case. When they decide d to marry , L aver

ne wa s in his 50s and Sherry was in her 40s. Ea ch had c hildren fr om a prior mar riag e. It is eminently

rea sonable that, be fore marry ing Sher ry , L aver ne wa nted to ensure that his assets passed to his exist ing c hildren upon his death r ather

than to Sherry

and her heirs. Thus, as a

condition of marriag e, L aver ne pre sented Sherry with a pre nuptial ag ree ment that would acc omplish t hat re sult. As the trial court found,

8Sherry

was a sophisticated woman who unde rstood the agree ment' s provisions and was fully
awa re of the extent of L aver

ne' s assets bef

ore she signe d the agree ment. In my view, the pa

rties' ag ree ment should be enfor ced a s written. We should not invalidate an agree ment fre ely and knowing ly

made by two competent a dults sim ply beca use we fee l that the agree ment resulted in a financ ial arr ang ement that we happen to c onsider " unfair." I f the pa rties fre ely

and knowing ly chose a particula r financ ial arr ang ement, we should honor their wishes e ven if it offe nds our subjective sense of fa irness. To rule otherwise w ould be to interfe re w ith the parties' rig ht to contra ct. Idon' t believe that we should trample that fundamental right simpl y beca use we fee l 2 that one of the parties c ould have dr iven a ha rder barg ain and g otten a better deal.
The I llinois leg islature re cog nized this principle whe n it enacte d the I llinois Uniform 2 Premarital Agree ment Act (the Act) ( 750 I L CS 10/ 1 et seq. (West 2012)), which a pplies to any antenuptial agree ment executed on or a fter January 1, 1990. The Ac t provides that an a ntenuptial ag ree ment is unenforc eable only if the par ty ag ainst whom enfor ceme nt is sought prove s that: (1) he or she did not ex ecute the agree ment voluntarily ; or (2) the agree ment was unc onscionable when it was e x ecute d and, bef ore e x ecution of the ag ree ment, the par ty was not provided a

fair and re asonable disclosure of the other' s proper ty , did not waive the r ight to such disclosure in writing , and did not have ( and could not re asonably have ha d) an a dequate knowledg e of the other' s proper

ty . 750 I L CS 10/ 7(a) (West 2012). The Ac t omits the pre vious common law require ments that an enf

orce able a g ree ment must also be "f air a nd rea sonable" and must not result in an " unfore seen c ondition of penury " f or the pa rty challeng ing the ag ree ment. Thus, the Act expresses a

public policy

of enf orcing contra cts as written absent evide nce of fra ud, duress, or lac k of knowledg e. 9¶ 20 The tr ial court a ppear ed to share my

reluc tance to interfer e with the par ties' ag ree ment when it noted that that it was " ty pically not in the business of protec ting pa rties from what [ it] would call a ba d barg ain." Howeve r, the trial c ourt ultimately felt compe lled to invalidate the ag ree ment beca

use it conclude d that antenuptial agree ments were enfor cea ble under I llinois common law only

if they provided e ach pa

rty an " equitable" ( i.e. , proportional) f inancial settlement. As noted above , I disag ree with that interpretation of the law. Althoug h I llinois common law re quired a

ntenuptial ag ree ments to be " fair a nd rea sonable," Ido not believe that this empowers (muc h less require s) cour ts to eng ag e in a f

ree -whe elingconsideration of the "f airne ss" of

the ultimate financ ial result ag ree d to by the par ties, particular ly

in case s involving the disposition of assets upon the death of a spouse. Rathe r, I

believe that courts should deter mine only whether the agree ment was fairly made , i.e. , whether it was enter ed into voluntarily

and with full knowledg e. ¶ 21 In any

event, e ven if the c ommon law empower ed us to eng ag e in a more sear ching inquiry into the substantive "f

airne ss" or

"r easona bleness" of the a g ree ment, Ifail to understa nd how the re sult sanctioned by the majority

in this case ca

n be conside red e ither fa ir or re asonable
. The majority ' s ruling inva lidates a c ontrac t knowingly and voluntarily

made by the par ties and deprive s L aver

ne' s children of

a portion of their

inheritanc e, in clea

r violation of L aver

ne' s wishes. I t does this despite the fac t that, as the trial cour t found, Sherry

knowing ly

and voluntarily

ag ree d to take nothingfrom L aver ne' s estate upon his death. The par ties lived
acc ordingto their antenuptial a g ree ment without modify ing the ag ree ment (and, a ppare ntly , without any

objection by

Sherry ) throug hout their entire 24- y ear marria g e, which e nded with L aver ne' s death. Now , afte r L aver ne has die d, the agree ment has bee n decla red inva lid by

10judicial fiat. That is like a r efe ree chang ing the rules of a g ame a fter the g ame ha s been pla y ed, which strikes me a s the height of unfair ness. ¶ 22 One final point bear s mentioning. I n my view, the c onception of " fairne ss" e spoused by the trial cour

t and the majority

in this case appe ars to be inf ormed by pater nalistic notions of marria g e and a

n outdated conc eption of women' s economic pow er. Spec ifically , the trial cour t and the major ity

conclude that an ante nuptial ag ree ment cannot be "f air a nd rea sonable" unless it aff ords a woma

n a propor

tional share of

the assets of the husband who pre dece ased he r, eve n if the woman voluntar ily

relinquished any

claim to her husba

nd' s estate de spite havingfull knowledg e of his asse ts. This view appea rs to rest on the a ssumption t hat women have unequa l economic pow er a

nd that courts nee d to protect wome n from their own contra cts. Whil e this view may have be en justified in an ea rlier e ra, it make s litt le sense in today' s world. Women
curr ently outperfor m men in colleg e, compr ise more than 50% of the matric ulating la w students, and compe te with men in ever y aspec t of ec onomic life. More than 23 y ear s ag o, the I llinois leg islature ena cted a

public policy

ref lective of modern e conomic re alities by passingthe Act, which re quires cour

ts to enforc e ante nuptial ag ree ments so long a s they are knowing ly

and voluntarily

made. ( As noted above , the Act doe s not allow courts to invalidate a n antenuptial ag ree ment mere ly

beca use it results in a disproportionate a llocation of asse ts to one of the parties.) Unlike the Ac t, the prior common law r ule (whic h applies in this case) require s courts to inquire into the "f

airne ss" a nd "r easona

bleness" of ante nuptial ag ree ments. Howeve r, in the context of ag ree ments g overningthe disposition of assets upon the death of a spouse, e ven some pre- Act ca ses sug g est that we should dete rmine the " fairne ss" of the agree ment by

ref ere nce to the par ties' knowledg e and voluntar iness when e x ecuting the agree ment, not the amounts they

11rec eive unde r the a g ree ment. See, e.g. , Debot , 328 I ll. at 424-25; Petru , 4 I ll. App. 2d at 12-13. 3

Ibelieve that we should apply those ca ses rather than olde r ca ses (or a ny dissoluti on case s) which follow more outdate d and pate rnalistic rules.

Although the common law (unlike the Act) r equire s courts to ensure that an ante nuptial 3 ag ree ment does not result in an " unforse en condition of pe nury " f or the pa rty opposing the ag ree ment, the trial cour

t expressly

found that the a g ree ment in this case did not put Sherry in a state of pe nury . 12