## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

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

Appellate Court Caption In re MARRI AGE OF J OHN J

. NI L L ES, Petitioner-Appellee
, an d J UDI TH L . NI L ES, Respondent-Appellant.

District & N o. Second District Docke t No. 2-10-0528

Filed Aug ust 9, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The appellate court reve rsed the trial court’s modification of petitioner’s maintenanc e obligation 10 y ear s afte r the parties’ settlement ag ree ment, including the maintenanc e provision, was incorporated into the judgme nt dissolving their marria g e, since the trial court based the modification on the finding of unconsciona bility due to fin an cial reve rsals suffe red by petitioner that rende red him unable to meet his maintenanc e obligations, but the ag ree ment provided that maintenanc e was subject to modification

o n ly upon the death of one of the parties or responde nt’s marria g e or cohabitation with another man, and a finding of unconsciona bility had to be founded on the parties’ economic positions immediately following the
ag ree ment, not on their positions 10 y ear s later.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e C ounty , No. 98-D -3 2 39; the Hon. L inda E. Davenport, Judge, pr esiding

.

J udg ment Reverse d.Counsel on

Appea l Sarane C. Siewerth, Debor ah A. Carder
, and Mark A. Wirtz
, all of Schiller, DuCanto & Flec k L L P, of Chicag o, for a ppellant.

No brief filed for appellee

.

Panel J USTI CE SCHOSTOK delivere d the judgme nt o f th e c o u r t, w it h opinion.
J ustices B urke a

nd Hudson conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Respondent, J ud i t h L

. Ni l l es , ap p ea l s fr om the trial court’s order modify ing the maintenanc e obli gati ons of petitioner, J ohn J

. Nilles, under the parties’ marital settlement
ag ree ment. Respondent co n t en d s that the trial court lacke d the authority to modify petitioner’s maintenanc e obligations, beca use the parties’ ag ree ment expressly provided that th e ma in te n a n c e w as nonmodifiable and beca use the parties’ ag ree ment could not be decl a r e d unconsciona

ble 10 y ear s afte r it wa s incorporated into the judgme nt of dissoluti on. For the

rea sons that follow, we re verse

.

¶ 2 BA CKGROUND ¶ 3 I n Fe bruar

y 1999, the tri al co u rt en t ered a judgme nt dissolving the marria g e of the parties. The judgme nt of di ssolution incorporated a marital settl emen t agreement between the par ties. The ag ree ment provided the f ollowing with re spect to maintena nce: “2.1. The Husband covena nts and ag ree s that he will pay to the Wi fe as and for
perma nent non-modifiable maintenanc e, the sum of Eig ht Thousand Dollars ($8,000.00)
per month commencing on the first day of the month following the eff ective date of this Ag ree ment and continuing on the first day of eac h month there afte r until said obligation is terminated upon the pr ovisions of Article I I , para g raphs [ sic ] 2.3 of this Article.
2.2. The parties acknow ledg e and stipulate that the pay ments set forth in this Article shall not be subject to modification for any rea son whatsoeve r pursuant to the provisions of Section 502(f

) of the I llinois Marr iag e and D issoluti on of Mar riag e Ac t. 2.3. Wi th o ut r e g ard for any provision here of to the contra ry , the Husband’s obligation
to pay and the Wife’s rig ht to rec eive the pay ments set forth in this Article shall terminate only upon the first to occ ur of the f ollowing e vents: (a) The de ath of the H usband; (b) The death of

the Wife; (c) The re marria g e of the Wife; or

-2-(d) T h e W i fe ’s cohabitation with a member of the opposite sex on a resident, continuing a

nd conjug al basis.” The article on maintenanc e also provided that petitioner was to provide responde nt with the

use of a lease d and insured L incoln Townca r and to maintain, as secur ity for the maintenanc e pay ments, a life insurance policy on himself in the amount of $1,250,000, with r espondent named as the primary benef iciary

. The ag ree ment also provided that petitioner was to pay the premiums for responde nt’s health insurance and that none of the provisions of the ag ree ment could be modified by

a cour t unless both parties conse nted. ¶ 4 Ten y ear s later, in Fe bruar y 2009, petitioner fil ed a t wo -c o u n t petition to modify or

vacate the judgme nt of dissoluti on

. I n co unt I
, petitioner reque sted that his maintenanc e obligations be reduc ed beca use his f inancial circ umstances had substantially chang ed such that he could no longe r meet his ma intenance obligations under the par ties’ ag ree ment. He contende d that the trial court could modify his oblig ations beca use internal inconsistencies in the ag ree ment rende red it ambig uous, there by eliminating any clea r statement that his maintenanc e oblig ations were nonmodifiable. Count I I reque sted that the trial court va cate the judgme nt on the g round that the parties’ ag ree ment was unconsciona ble beca use meeting his m ai n t enance obligations would require petitioner to liquidate his assets, file for bankruptc y , and be una

ble to support himself. ¶ 5 I n response , responde nt filed a motion to strike and dismiss petitioner’s petition, a rg uing that the parties’ ag ree ment was clea rl y nonmodifiable and that petitioner’s petition was leg ally insufficient. The trial court g rante d responde nt’s motion to dismiss
, finding that the parties’ ag ree ment was nonmodifiable ba sed upon its plain lang uag e. ¶ 6 Petitioner filed a motion to rec onsider, arguing that the trial court failed to consider his contention that the parties’ ag ree ment was unconsciona ble. The trial court g rante d the motion. Respondent then filed a response to petitioner’s petition. I n her response , responde nt denied any inconsistency in the parties’ ag ree ment and argued that the plain lang uag e of the

a gr e e me nt ma d e p e ti ti o n er’ s maintenanc e obliga tions nonmodifiable. I n addition
, r e s p o n d e nt argued that petitioner’s reque st to v acate the judgme nt on unconsciona bility g rounds was time-barr ed and that the parties’ ag ree ment was not unconsciona ble when they enter ed into it. ¶ 7 T h e t ri al co u rt found that, g iven petitioner’s chang e in circ umstances, it woul d b e unconsciona

ble to enfor ce his maintenanc e obligations under the parties’ ag ree ment. Acc ording ly
, the trial court terminated petitioner’s obligations to maintain the life insurance policy
, require d petitione r t o p ay o n ly the first $225 of the monthly cost of responde nt’s supplemental Medica

re he alth insurance , and ter minated petitioner’s oblig ation to provide

an insured L incoln Townca r. I n addition, the trial court reduc ed the maintenanc e pay ments to $3,000 p er m o n t h
, wi th the rema ining $5,000 per month to acc rue as a claim ag ainst petitioner’s estate. The order included a finding under I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26, 2010) that there was no just rea son to delay enfor ceme nt or appea l of the order

. ¶ 8 Respondent timely appea led.

-3-¶ 9 ANALYSI S

¶ 10 On appea l, responde nt contends that the tri al co u rt l ac ked the authority to modify the judgme nt. ¶ 11 Petitioner has not filed a brief on a ppeal. While we may

not reve rse summarily

on that basis alone, we need not serve as petitioner’s advocate or sear ch the rec ord for a basis upon which to aff

irm. First Capitol Mo r t

g a g e Corp. v. Talandis Construction Corp.
, 63 I ll. 2d 128, 133 (1976); Orava v. Plunkett Furniture Co.
, 297 I ll. App. 3d 635, 636 (1998). “[I ]f the

rec ord is simple and the claimed err ors are such that the court can easily decide them without the aid of an appellee ’s brief, the court of revie w should decide the merits of the appea l.” Talandis
, 63 I ll. 2d at 133. I n addition, the trial court’s judgme nt may be reve rsed wher e the appellant’ s brief, as supported by the rec ord, demonstrates prima facie reve rsible err or in that judgme nt. Id

. The claimed err or in this case is easily decide d, and we conclude that the trial court’s de cision must be reve rsed. ¶ 12 I t is unclea

r whether the trial court g rante d petitioner relief based on count I or count I I of th e petition. Count I reque sted modification of petitioner’s obliga tions, which the trial
court g rante d; y et it was count I I in which petitioner argued that the parties’ ag ree ment was unconsciona

ble, which was the trial court’s basis. Although the trial court seems t o h ave melded counts I and I I
, we need address onl y its deter mination that the p ar t ies’ agr eeme nt

was unconsciona

ble, as that was the g round on which the trial court g rante d petitioner relief

. ¶ 13 We conclude that the trial court’s finding that the parties’ ag ree ment was unc onscionable

was err or, beca

use the trial court’s finding of unconsciona bility was based on petitioner’s financ ial circ umstances a s they exis ted at the time of the hear ing, not as they exis ted when the part ie s enter ed into the ag ree ment. Two fac tors are considere d when deter mining whether
an agr eeme nt is u n co n s cionable: (1) t he conditions under which the agr eeme nt was made, and (2) the parties’ economic circumstances resulting from the agr eeme nt. In re Marriage of Richardson
, 237 I ll. App. 3d 1067, 1080 (1992). “The deter mination of unconsciona

bility focuse s on the parties’ relative economic positions immediately follow ing the making of the
agreem ent .” (Emphasis added.) Id .; see also Kinkel v. C ingular W ireles s , LLC
, 223 I ll. 2d 1, 24 (2006) (“[T]he issue of unconsciona bility should be examined with ref ere nce to all of the circ umstances surrounding the transaction .” (empha sis added) ); In r e Ma r r iage of Tabassum
, 377 I ll. App. 3d 761, 778 (2007) (“C o u rt s ex amining whether postmarital
agr ee ments are substantively unconsciona ble have focuse d on the parties’ economic circ umstances immediately following and re sulting fr om the ag ree ment.”). ¶ 14 Petitioner did not complain of the co n d i tions under which the parties’ ag ree ment was made, focusing instead on how the ag ree ment aff ecte d his curr ent economic conditions. When the judgme nt of dissoluti on was enter ed, the trial court specific ally found that the
terms of the parties’ ag ree ment wer e consciona ble. Yet, based on evidenc e that petitioner had suffe re d a d ecline in his financ ial circ umstances in the 10 y ear s since the entry of the judgme nt, the trial court found the terms to the n be unconsc ionable. Petitioner’s e conomic position 10 y ear s following the entry of the judgme n t ca n n o t b e said to be his economic position “immediately following the making of the ag ree ment.” See Ri ch a r d son , 237 I ll. App. 3d at 1080. Moreove r, logic dictates that, if an ag ree ment can be d ec l are d

-4-u n co n s ci o nable simply based upon a chang e in circ umstances, ag ree ments that may have

been perf ectly consciona

ble upon their making are perpe tuall y s u b j ec t to being decla

red unconsciona

ble upon the chang ing of the winds. This wo u ld provide littl e secur ity for the parties to contr acts. ¶ 15 Be cause a finding of unconscio n ab i l i t y m u s t b e b as ed upon the parties’ economic positions immediately following the making of an ag ree ment, the trial court’s modification of petitioner’s obligations under the ag ree ment in this case , bas ed u p on a finding that petition er ’s circ umstances 10 y ear s later rende red the ag ree ment unconsciona ble, was improper.

¶ 16 CONCL USI ON ¶ 17 The judg ment of the c ircuit court of Du Pag e County

is rever sed.

¶ 18 Reverse d.

-5-