ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

In re MARRIAGE OF JOHN J. NILLES, Petitioner-Appellee, and

JUDITH L. NILES, Respondent-Appellant.

 District & No. Second District

Docket No. 2-10-0528

Filed August 9, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The appellate court reversed the trial court’s modification of petitioner’s

maintenance obligation 10 years after the parties’ settlement agreement,

including the maintenance provision, was incorporated into the judgment

dissolving their marriage, since the trial court based the modification on

the finding of unconscionability due to financial reversals suffered by

petitioner that rendered him unable to meet his maintenance obligations,

but the agreement provided that maintenance was subject to modification

only upon the death of one of the parties or respondent’s marriage or

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 

Review

Appeal from the Circuit Court of Du Page County, No. 98-D-3239; the

Hon. Linda E. Davenport, Judge, presiding.

Judgment Reversed.
Counsel on

Appeal

Sarane C. Siewerth, Deborah A. Carder, and Mark A. Wirtz, all of

Schiller, DuCanto & Fleck LLP, of Chicago, for appellant.

No brief filed for appellee.

Panel JUSTICE SCHOSTOK delivered the judgment ofthe 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 expresslyprovided that

themaintenancewas 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 anyprovision 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 bythe 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 ofthe 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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