NO. 4-00-0990

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

In re: the Marriage of				)	Appeal from

SANDRA K. BARNES,					)	Circuit Court of

		Petitioner-Appellant,		)	McLean County

		and						)	No. 99D19

EDWARD H. BARNES,					)

		Respondent-Appellee.		)	Honorable

								)	James E. Souk,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Shortly before their marriage in July 1991, Sandra and

Edward Barnes executed a premarital agreement (Agreement).  Both

parties were represented by separate counsel.  The Agreement

defined the parties' rights on the issues of property and mainte

nance in the event of a divorce.  At all times relevant here,

Edward was the sole shareholder and chief executive officer (CEO)

of Glass Specialty Company, Inc.  He earns in excess of $250,000

per year and enjoys various perks, including use of the company

plane and vehicles.  Shortly after the marriage, Sandra quit her

office job (earning $19,000 per year) to be able to travel with

and spend more time with Edward.

		Sandra and Edward separated in December 1998.  Sandra

filed for divorce on January 14, 1999.  Sandra and Edward have no

children together.  Sandra appeals from the trial court's judg

ment enforcing the terms of the Agreement.  She also asserts that

the trial court improperly compelled privileged testimony and

failed to award her adequate attorney fees.  We affirm. 

I. PREMARITAL AGREEMENTS IN ILLINOIS

		Illinois law relating to premarital agreements has

gradually evolved to permit agreements that define rights and

obligations upon divorce.  Historically, premarital agreements

controlled the devolution of the parties' property upon death,

not upon divorce.  1 H. Clark, Domestic Relations §1.9, at 48 (2d

ed. 1987).  In fact, premarital agreements that attempted to

limit spousal maintenance or distribute property upon divorce

were invalidated on public policy grounds because they were said

to be conducive to divorce.  1 H. Clark, Domestic Relations §1.9,

at 49, 53 (2d ed. 1987).  

									That same rationale was used to invalidate postnuptial agreements regarding maintenance awards or property distribution

that were effective upon separation or divorce.  Postnuptial

agreements were allowed, however, where the parties had already

separated or were on the point of separating (separation agree

ments).  2 H.H. Clark, Domestic Relations §19.1, at 411 (2d ed.

1987).  Clark notes that it was never clear why executing a

postnuptial agreement while the parties were still living to

gether was conducive to divorce, but the courts found that it

was.  2 H.H. Clark, Domestic Relations §19.1, at 411 (2d ed. 1987). 

		More recent statutes make it clear that there is no longer any general public policy opposed to agreements contem

plating divorce.  2 H.H. Clark, Domestic Relations §19.1, at 411

(2d ed. 1987).  In 1977, the Illinois Marriage and Dissolution of

Marriage Act (Dissolution Act) made separation agreements dealing with property and maintenance valid.  750 ILCS 5/502 (West 1998). 

"This section entirely reverses the older view that property

settlement agreements are against public policy because they tend

to promote divorce."  Uniform Marriage and Divorce Act §306, 9A

U.L.A., Comment, at 249 (1998).  Separation agreements, however,

which are agreements "attendant upon the dissolution of [the]

marriage," are postnuptial agreements, not premarital agreements. 

		Since 1977, section 503 of the Dissolution Act has

allowed premarital agreements that deal with questions of marital

property.  750 ILCS 5/503(d)(7) (West 1998) (court shall consider

"any antenuptial agreement of the parties"); In re Marriage of Jelinek, 244 Ill. App. 3d 496, 501-02, 613 N.E.2d 1284, 1289 (1993).  There was a question, however, whether the Dissolution

Act changed the previous rule that a premarital agreement could

not deal with questions of maintenance.  750 ILCS 5/504(a)(11)

(West 1998) (factors to consider when awarding maintenance

include "any valid agreement of the parties"); see Eule v. Eule, 24 Ill. App. 3d 83, 87, 320 N.E.2d 506, 510 (1974) (holding

invalid a premarital agreement waiving temporary alimony if

marriage did not last seven years); Warren v. Warren, 169 Ill. App. 3d 226, 231, 523 N.E.2d 680, 684 (1988) (declining to

enforce provision in agreement waiving right to maintenance upon

divorce even though wife entered agreement with "full knowl

edge"); cf. In re Marriage of Burgess, 138 Ill. App. 3d 13, 15, 485 N.E.2d 504, 505 (1985) (premarital agreements determining

right to maintenance valid if "fair and reasonable").  The legislature, however, has now answered that question and affirmed

the validity of premarital agreements.

		Effective January 1, 1990, Illinois adopted the Uniform

Premarital Agreement Act (Premarital Agreement Act) (750 ILCS

10/1 through 11 (West 1998)).  The Premarital Agreement Act

confirms that prior to marriage, parties may contract with

respect to the "disposition of property" and "modification or

elimination of spousal support."  750 ILCS 10/4(a)(3), (a)(4)

(West 1998).  Since the Agreement at issue here was executed in

1991, the Premarital Agreement Act applies to our review of the

issues presented.

I	I. SUMMARY JUDGMENT

		In answer to Sandra's divorce petition, Edward asserted

the terms of the Agreement as controlling on the issues of

property distribution and maintenance.  Sandra acknowledged that

she signed the Agreement but claimed it was unenforceable because

it was obtained by coercion and duress.  750 ILCS 10/7(a)(1)

(West 1998) (premarital agreement is unenforceable if not volun

tarily executed).

		When asked at her deposition to define the nature of

the alleged coercion, Sandra testified as follows:

			"Q.:  Again, why don't you tell me what

the element of coercion is with regard to

signing this agreement marked exhibit No. 1.

			A.:  There would be no wedding unless

this thing was signed.

			Q.:  And this is the coercion that you

were speaking of in your answer?

			A.:  Yes.

			* * *

			Q.:  Would you explain again why you deny

the request to admit that you were under no

duress from any person or entity when you

signed the agreement?  Tell me what duress

you were under.

			A.:    The time line was the duress coming

from Ed, either sign this or there won't be

any wedding."

		The Agreement was witnessed by Sandra's attorney,

Randall Ehlers.  The Agreement establishes that Sandra had

consulted with her attorney, who had reviewed and advised her as

to her rights under the Agreement.  Further, the signature page

of the Agreement included an acknowledgment that the parties

fully reviewed the terms and provisions and that the execution

was a voluntary act, devoid of coercion or duress.  Sandra also

acknowledged that she had been fully informed of Edward's wealth,

property, estate, and income.

		In June 1999, Edward moved for summary judgment as to

the validity of the Agreement.  The trial court found that the

Agreement was valid and controlled issues of property distribu

tion and maintenance.  Sandra argues that there are disputed

issues of fact relating to her claims of coercion and duress that preclude summary judgment.

		Mere legal conclusions unsupported by facts do not

create an issue of material fact sufficient to defeat a motion

for summary judgment.  See Lackey & Lackey, P.C. v. Prior, 228 Ill. App. 3d 397, 399-400, 591 N.E.2d 998, 1000 (1992).  Neither

Sandra's response to the motion for summary judgment before the

trial court, nor her brief on appeal, points to any factual basis

in support of her claims to invalidate the Agreement.  In re

sponse to Edward's motion, she attached transcripts from her own

deposition and that of her attorney.  However, no single refer

ence to testimony raises a factual issue.  Similarly, Sandra's

brief on appeal offers no record citation to support her

conclusory allegations that the Agreement was a result of coer

cion.

		In her reply brief, Sandra states that the deposition

testimony is "replete" with factual issues relating to her claim

of coercion; however, she again failed to direct us to specific

facts that would support her allegations.  Sandra has the burden

of proving that the Agreement was unenforceable.  750 ILCS 10/7

(West 1998).  The only factual reference to coercion in her

deposition testimony was her statement that the Agreement was a

condition to marriage.  We disagree with Sandra's assertion that

conditioning marriage upon the execution of a premarital agree

ment constitutes coercion.  Acts or threats cannot constitute

duress unless they are legally or morally wrong.  In re Marriage of Spomer, 123 Ill. App. 3d 31, 35, 462 N.E.2d 724, 728 (1984).

		Both Edward and Sandra could have remained single.  

Nothing was legally or morally wrong with either of them condi

tioning marriage upon the execution of a premarital agreement. 

Their right to enter into such an agreement was codified by the

Premarital Agreement Act.  One party's agreement to marry is in

and of itself sufficient consideration for financial concessions

by the other party in the context of a premarital agreement.  In re Marriage of Sokolowski, 232 Ill. App. 3d 535, 542, 597 N.E.2d 675, 680 (1992).  

		Sandra has admitted that she was totally self-suffi

cient and supporting herself at the time the Agreement was

executed.  She was free to elect to remain single rather than

sign the Agreement.  Her arguments on appeal offer only general

statements of law without any reference to an actual disputed

fact in the record.  Her brief points to nothing in either her

own testimony or the deposition of her attorney that contravened

her verified statement in the Agreement that the document was

executed as a "free and voluntary act, devoid of coercion or

duress."  The trial court was presented with an Agreement that

Sandra Barnes not only admitted she signed, but in which she

contemporaneously attested under oath was executed free of duress

and coercion, an oath taken before her own attorney, acting as a

notary.  Sandra has come forth with no evidence to create a

genuine issue of material fact that would controvert the volun

tary nature of the Agreement.

	III. DESERTION AS BASIS OF DISSOLUTION

		Sandra initiated this divorce proceeding in January

1999.  After the trial court's entry of summary judgment in

September 1999, declaring the Agreement valid, Sandra filed a

second count to her divorce petition, seeking maintenance.  In

January 2000, Edward filed a counterpetition for divorce on the

grounds of desertion.  Sandra then moved to voluntarily dismiss

her divorce petition.  After her petition was dismissed, the case

proceeded on the grounds raised by Edward.

		The Dissolution Act provides for dissolution upon proof

that "the respondent has wilfully *** absented *** herself from

the petitioner for a space of one year, including any period

during which litigation may have pended between the spouses for

dissolution of marriage or legal separation."  750 ILCS

5/401(a)(1) (West 1998).  Edward had the burden to prove the

elements of desertion by a preponderance of the evidence.  Edmond v. Edmond, 20 Ill. App. 3d 40, 44, 312 N.E.2d 766, 770 (1974).  Only Sandra and Edward testified at the dissolution hearing. 

Edward testified that Sandra left the home on December 28 or 29,

1998.  The record reflects that Sandra filed this divorce action

15 days after leaving the marital residence.  She never returned

to the marital residence at any time thereafter up to the date of

the hearing on the grounds for dissolution, January 26, 2000.  

		Sandra argues that Edward failed to establish desertion

because she offered to return to the marital home after learning

that he was seriously ill.  Sandra testified that Edward laughed at her offer to return home and hung up the phone.  Edward denied

that Sandra offered to return to the marital residence.

		After hearing testimony, the trial court simply re

solved the factual issues relating to the elements of desertion

in favor of Edward.  It is the province of the trial judge to

determine the credibility of witnesses.  The trial court's find

ing will not be disturbed unless manifestly against the weight of

the evidence.  In re Marriage of Marx, 281 Ill. App. 3d 897, 901, 667 N.E.2d 734, 736 (1996).  The trial court had sufficient

evidence to support its finding of desertion, and the judgment of

dissolution on that ground was not against the manifest weight of

the evidence.

	IV. MARITAL PROPERTY

		Sandra next argues that the trial court erred in refus

ing to award her a one-half interest in various items she claims

were marital property.  The Agreement set forth a specific method

for characterizing marital property upon dissolution of marriage:

			"Marital property shall be defined as

all property and assets acquired subsequent

to the marriage by the jointly owned funds of

the parties, except as otherwise herein pro

vided in this Agreement, and expressly ex

cluded therefrom any income, accretions (in

clusive of accretions attributable to the

personal efforts and labors of either party),

conversions, substitutions, and/or replace ment of non[]marital property, and property

acquired with the funds owned solely by one

party or the other."

The Agreement also addressed the issue of marital property re

garding commingled funds, providing:	

			"It is further expressly agreed that in

the event either party shall make a contribu

tion of property or income from his or her

non[]marital estate to the non[]marital es

tate of the other or shall make a contribu

tion of property or income from his or her

non[]marital estate to the marital estate,

then in that event, the contributi[ng] estate

shall be entitled to reimbursement in an

amount equal to said contribution.  Unless

otherwise agreed in writing, said contribu

tion shall not be deemed a gift to the recip

ient estate."

		Under the terms of the Agreement, the marital property

was to be divided equally.  At trial, Sandra claimed that prop

erty in addition to that she sought in her answers to interroga

tories should be designated as marital property for purposes of

the dissolution.  The additional property included the following:

		(1)  a Duke twin-engine airplane;

		(2)  Edward's retirement account;

		(3)  $1 million life insurance proceeds on the life of a former Glass Specialty Company, Inc., shareholder;

		(4)  a Lincoln Navigator automobile;

		(5)  joint savings accounts; and

		(6)  30% of the stock in Glass Specialty Systems Com

pany acquired by Glass Specialty Company, Inc., in 1997.

		At trial, it was undisputed that the Duke aircraft, the

life insurance proceeds, the Lincoln Navigator, and the stock

holding representing 30% of Glass Specialty Systems Company were

property of the corporate entity Glass Specialty Company, Inc.,

and not the property of Edward Barnes. 

		With respect to Sandra's claim to some or all of Ed

ward's retirement savings, she admitted that the retirement

accounts were the same as those referenced in the Agreement.  By

the terms of the Agreement, Edward's retirement accounts, "in

cluding contributions or accretions subsequent to the marriage[,]

are deemed nonmarital property." 

		Sandra's main claim for marital property is to funds

held in joint accounts.  She claims that a cash deposit of loan

proceeds secured by Edward individually relative to his

nonmarital business that was held in the parties' joint account

was marital property.  There was no dispute that these funds were

loan proceeds borrowed solely by Edward, secured by his

nonmarital property, and for which he was solely liable.  Sandra

urges that these loan proceeds were converted from Edward's

nonmarital property to marital property by their deposit into a

joint account.  

		No such conversion of nonmarital proceeds to marital

property can occur based upon the express language of the Agree

ment.  By its own terms, the Agreement defines any contribution

to the marital estate from a party's nonmarital estate as a loan

subject to reimbursement to the nonmarital estate from which it

came.  If the funds gave rise to anything relative to the marital

estate, it was a loan from Edward's nonmarital estate to the

marital estate that had to be repaid.  By the express terms of

the Agreement, the loan must be presumed absent a writing to the

contrary.  No such writing exists.

		The trial court's finding that the sole marital assets

of this marriage, as that term was defined by the Agreement, were

the personal items Sandra identified and valued in her original

answers to interrogatories and set forth in her exhibit provided

to the court was supported by the record.  

	V. MAINTENANCE		

		The Premarital Agreement Act permits parties to con

tract with respect to the "modification or elimination of spousal

support."  750 ILCS 10/4(a)(4) (West 1998).  The Agreement ad

dressed the issue of maintenance as follows:	

			"Each party hereby acknowledges, war

rants, and represents that he/she is pos

sessed of sufficient assets, property, in

come, educational and vocational skills,

training, and experience, all of which permit

and enable them to fully support and maintain themselves without financial assistance from

the other.  Accordingly, upon the entry of a

judgment for dissolution of marriage between

the parties by a court of competent jurisdic

tion, each hereby waives and shall be forever

barred from asserting a claim for maintenance

against the other; past, present, or future,

except that in consideration of the foregoing

and in lieu of maintenance, alimony[,] or

support, if the dissolution occurs more than

three (3) years after the marriage, ED shall

pay SANDRA $5,000; if the dissolution occurs

more than five (5) years after the marriage,

ED shall pay SANDRA $7,500; if the dissolu

tion occurs more than seven (7) years after

the marriage, ED shall pay SANDRA $10,000; if

the dissolution occurs more than fifteen (15)

years after the marriage, ED shall pay

$25,000 to SANDRA.  The term 'occurs' means

that a decree of dissolution is entered by a

court of competent jurisdiction, whether all

issues are determined or not between the par

ties." 

		Despite this provision, Sandra asked the trial court to

award maintenance.  She relies upon an additional section in the

Premarital Agreement Act that states:

			"If a provision of a premarital agree-

		ment modifies or eliminates spousal support

		and that modification or elimination causes

		one party to the agreement undue hardship in

		light of circumstances not reasonably fore-

		seeable at the time of the execution of the

		agreement, a court, notwithstanding the terms

		of the agreement, may require the other party

		to provide support to the extent necessary to

		avoid such hardship."  750 ILCS 10/7(b)

		(West 1998).

This section does not automatically obviate the parties' rights

to contract for the elimination of spousal support.  The applica

tion of section 7(b) applies only where such relief is necessary

to avoid undue hardship in light of circumstances not reasonably

foreseen at the time of the execution of the agreement.  750 ILCS

10/7(b) (West 1998).  The statute merely states that the court

"may" grant additional support.  By use of the word "may," the

legislature made such an award a matter of discretion for the

trial court.  

		The issue of whether undue hardship existed as a result

of circumstances not reasonably foreseeable at the time of the

agreement was for the trial court to decide upon the evidence

presented.  We will not overturn the trial court's judgment

unless it is contrary to the manifest weight of the evidence. 

Marx, 281 Ill. App. 3d at 901, 667 N.E.2d at 736.

		The Agreement reflected the gross disparity in the

parties' assets and income at the time of the marriage.  Sandra

acknowledged that she was aware at the time of the Agreement that

Edward's income far exceeded her own.  She lived a lifestyle with

Edward that was beyond what she could possibly have enjoyed on

her own before or after a dissolution of the contemplated mar

riage.  She nevertheless entered into the Agreement whereby, upon

a dissolution, she waived all maintenance other than a stipulated

amount tied to the length of the marriage.  Pursuant to the

Agreement, Edward was ordered to pay Sandra $10,000 in mainte

nance.  

		At the time of trial, Sandra had already gained cleri

cal employment at a salary of $24,000 a year.  She does not

dispute that she can and is performing her employment duties

within the acknowledged range of expertise referenced in the

Agreement.  Adjusting from a lifestyle of luxury to one limited

by a $24,000 salary may not be easy for Sandra, but we do not

find such a transition to be an undue hardship.

		With respect to the "unforeseen circumstances" issue,

most of Sandra's argument refers to Edward's character flaws that

made continuing the marriage impossible.  However, the record

reflects that this was Edward's fifth marriage.  The fact that

this marriage might fail was reasonably foreseeable.  The trial

court was justified in finding that no undue hardship resulted

and that the various "unforeseen circumstances" Sandra complained

of were foreseeable.

VI. ATTORNEY-CLIENT PRIVILEGE

		Sandra also argues that the trial court erred by re

quiring disclosure of privileged information.  During discovery

in this case, Edward subpoenaed Sandra and her attorney, Ehlers,

for deposition.  At those depositions, Edward's counsel asked

about Sandra's mental state as related to her challenge to the

validity of the Agreement.  Sandra's counsel objected to the

questions relating to conversations between Sandra and Ehlers

based upon the attorney-client privilege.  Sandra's counsel

directed both witnesses not to answer these questions.  

		Edward sought a ruling from the trial court regarding

the objections and filed a written response and memorandum chal

lenging the privilege raised.  The trial court ultimately denied

Sandra's objections, finding that the information sought by

Edward was not subject to the attorney-client privilege and

ordered the witnesses to answer the tendered question relative to

conversations between Sandra and Ehlers. 

		The parties have raised numerous arguments regarding

the extent of the attorney-client privilege and the burdens of

establishing that privilege.  We need not address each of these

arguments since we find that even if the trial court's order was

in error, that error was harmless.  Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 829, 638 N.E.2d 1127, 1143 (1994) (appellate court declined to address attorney-client

privilege issue as that issue was moot and did not impact results

in trial court).  As in Pickering, we find that this issue is moot.  Upon the resumption of Sandra's and Ehlers' depositions,

neither of them could recall any of the specifics of the conver

sations they claimed to be privileged.  All of the questions

tendered were answered with the witnesses professing a lack of

recollection.  No allegedly privileged information was revealed. 

Despite the trial court's order, no communications were actually

disclosed, and, therefore, any error as to the underlying ruling

was harmless.

	VII. ATTORNEY FEES

		Sandra challenges the trial court's decision to award

attorney fees at a rate of $125 per hour despite counsel's re

quest to be paid at his customary and usual rate of $185 per

hour.  Sandra argues that it was an abuse of discretion for the

trial court to reduce the hourly rate because Edward did not

contest the rate at trial.  We disagree.  The court must take

into consideration a number of factors when awarding attorney

fees.  The court is not bound by the attorney's opinion as to

what constitutes a reasonable fee.  In re Marriage of Ransom v. Ransom, 102 Ill. App. 3d 38, 41, 429 N.E.2d 594, 598 (1981).  The court's

award of attorney fees will not be reversed absent abuse of

discretion.  In re Marriage of Powers, 252 Ill. App. 3d 506, 508- 09, 624 N.E.2d 390, 392-93 (1993).  The trial court found that,

"in McLean County, a reasonable hourly rate for an attorney of

Mr. Vieley's experience engaged in family law litigation is $125

per hour."  The trial court's determination was within its dis

cretion.

	VIII. ATTORNEY FEES ON APPEAL

		Sandra also claims the trial court erred in refusing to

award her any prospective attorney fees for her appeal in view of

her dire financial situation when compared to her ex-husband's

wealth and income.  Sandra has not directed us to any authority

requiring the trial court to award fees for an appellate chal

lenge to the validity of a divorce judgment.  

		Throughout this case, Sandra has sought to circumvent

the provisions of the Agreement.  We do not doubt that one of the

purposes of entering the Agreement was to avoid the substantial

expenses of litigation that would result if the parties were

divorced.  Sandra validly exercised her right to appeal the trial

court's order.  Exercising that right, however, does not automat

ically entitle her to shift the financial burden for the appeal

to Edward.  The trial court's decision to deny fees on appeal was

within its discretion. 

		Affirmed.

		STEIGMANN, P.J., and MYERSCOUGH, J., concur.