In re Andrew

236 N.E.3d 588

2023 IL App (1st) 221039

IN RE MARRIAGE OF Benjamin ANDREW, Petitioner-Appellant,

and

Jacqueline Andrew, Respondent-Appellee.

No. 1-22-1039

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed June 16, 2023

Appeal from the Circuit Court of Cook County. No. 14 D3 31099, Honorable Thomas J. Kelley, Judge, presiding.

Allen S. Gabe, of Allen Gabe Law, P.C., of Schaumburg, for appellant.

Joel Ostrow, of Bannockburn, for appellee.

OPINION

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 BACKGROUND

¶ 2 This appeal involves the marriage of Benjamin Andrew (Benjamin) and Jacqueline Andrew (Jacqueline), who divorced in 2014. About six years later, they engaged in extensive motion practice establishing the claims at issue here. Benjamin first filed a petition to invalidate the marriage and then filed a separate motion to terminate maintenance, both of which the circuit court ultimately dismissed. He appeals from those dismissals. Additionally, Benjamin appeals from an evidentiary ruling the circuit court made during a proceeding on Jacqueline’s 2020 petition for a rule to show cause regarding Benjamin’s cessation of maintenance payments. We affirm the rulings of the circuit court.

¶ 3 FACTS

¶ 4 Benjamin and Jacqueline were married in 1994. About 20 years later, Benjamin filed a petition for dissolution of mar- riage. In 2014, the circuit court entered a judgment for dissolution of marnage, which incorporated a marital settlement agreement (MSA) reached by both parties, following negotiations during which both parties were represented by counsel. The MSA detailed, in relevant part, Benjamin’s agreement and obligation to pay Jacqueline maintenance at an initial rate of $20,000 a month. The judgment for dissolution stated that Benjamin entered into the MSA "freely and voluntarily and without coercion." Additionally, the MSA revealed Benjamin had financial assets exceeding $3 million, and the couple owned multiple residences. The case was essentially dormant for the next six years.

¶ 5 On October 19, 2020, Jacqueline filed a petition for rule to show cause seeking an order of indirect civil contempt, alleging in relevant part that Benjamin was not complying with his maintenance obligations to her.

¶ 6 On the same day, Benjamin filed a petition to invalidate the former marriage pursuant to 750 ILCS 5/301(1) (West 2018). In his petition, Benjamin alleged that his relationship with Jacqueline began in 1985, when he was 16 years old and in high school. Jacqueline was his teacher and a faculty advisor to his tennis team. According to Benjamin, Jacqueline used these positions to "take dominance and control" over him. In June 1985, Jacqueline "committed sexual assault upon" Benjamin. Thereafter, she used her "position of trust, authority, supervision and dominance" over Benjamin to "sexually assault" him "on an almost weekly basis." The relationship continued after Benjamin turned 18 years old. On March 26, 1994, when Benjamin was 25 years old, the parties married, at Jacqueline’s "insistence" and due to "the dominance and control" she exercised over him. Because of this dominance and control, he was incompetent and without capacity to consent to the marriage. Therefore, the petition continued, the marriage was "invalid and void, ab initio," and any orders resulting from it, including the judgment for dissolution and MSA, were also void. Specifically, he claimed he agreed to the MSA "without his valid consent and under duress" because "he continued to be under the control and dominance" of Jacqueline.

¶ 7 As a remedy, Benjamin requested, in relevant part, that Jacqueline disgorge all money and personal property she received from Benjamin pursuant to the MSA over the more than five years in which it had been in effect.

¶ 8 Benjamin attached the December 11, 2014, judgment for dissolution of marriage, and the MSA incorporated therein, to his petition to invalidate. The judgment acknowledged that Benjamin filed the initial petition for dissolution, citing "irreconcilable differences"; both parties entered into the MSA "freely and voluntarily"; Benjamin and Jacqueline were "lawfully married" on March 26, 1994; and both parties "freely and voluntarily and without coercion" agreed to the MSA in lieu of trial.

¶ 9 In section 2.2 of article II of the MSA, titled "Maintenance," the parties agreed that Benjamin would make maintenance payments to Jacqueline starting January 15, 2015. The payment calculation could "be modified as necessary to reflect any change in how Benjamin is compensated by his then current employer" and could also be modified if Jacqueline’s pension payment amount changed.

¶ 10 In article II, section 2.4, the parties agreed that, "The maintenance payments *** pursuant to this Article II shall be non-modifiable as to amount and duration, pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/502), except as specifically provided in this Article II." Section 2.4 lists six termination events—180 months of payments, Benjamin’s or Jacqueline’s death, her remarriage or entry into a civil union, or Jacqueline’s cohabitation. Article II does not contain any other terms permitting modification or termination of maintenance, aside from a provision specific to a possible buy-out of Benjamin’s then-employer.

¶ 11 On October 23, 2020, Jacqueline moved to dismiss the petition to invalidate pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2018)). In the motion, Jacqueline argued, "The claim of sexual abuse was never alleged or addressed at any time including the filing of the Petition for Dissolution of Marriage, mediation, or prove-up and entry of the Judgment for Dissolution of Marriage." She further argued Benjamin’s claim was untimely and that, "[t]o now claim for the first time that he lacked the capacity to marry in 1994, more than 26 years after the marriage took place, is false, fraudulent, and sanctionable."

¶ 12 Benjamin responded to Jacqueline’s motion to dismiss his petition to invalidate, stating, "he did not claim sexual abuse upon him by Jacqueline in any prior pleading or action *** [because] due to her dominance and control over him he did not have the capacity to do so."

¶ 13 Jacqueline later filed an amended motion to dismiss the petition to invalidate based on sections 2-615 and 2-619(a)(4), (5), and (9) (id. §§ 2-615, 2-619(a)(4), (5), (9)) of the Code. Benjamin responded to Jacqueline’s amended motion to dismiss, alleging that in addition to lack of capacity, he also could not consent to the marriage in 1994 "due to the fraud or duress" by Jacqueline.

¶ 14 On February 18, 2021, the circuit court granted Jacqueline’s amended motion to dismiss but permitted Benjamin to file an amended petition.

¶ 15 On March 18, 2021, Benjamin filed his amended petition to invalidate the marriage. Therein, Benjamin reiterated the allegations of the original petition. Additionally, Benjamin included new allegations that, "After years of therapeutic counseling *** on or about September 28, 2020, [he] finally became aware of the dominance and control Jacqueline had over him and that she had repeatedly raped him while he was minor." The amended petition continued, "At the time Benjamin became aware of the dominance Jacqueline had over him, he had a psychological and emotional breakthrough of the control Jacqueline had over him and was then able to break away from her dominance and control." Benjamin attached the judgment for dissolution and MSA to the amended petition to invalidate.

¶ 16 Jacqueline moved to dismiss the amended petition to invalidate pursuant to section 2-619(a)(4) and (a)(9). In the motion, Jacqueline admitted that "she did enter into a relationship with [Benjamin] towards the completion of his high school education." In the section 2-619(a)(4) portion of the motion, she argued res judicata barred the amended petition because the judgment of dissolution was a final judgment containing a specific finding that the marriage had been valid. See id. § 2-619(a)(4). In the section 2-619(a)(9) portion, she argued, in relevant part, that because she and Benjamin were divorced, there was no marriage to invalidate. See id. § 2-619(a)(9).

¶ 17 Benjamin responded to Jacqueline’s motion to dismiss his amended petition to invalidate, arguing res judicata could not apply because new facts or conditions had arisen, specifically his therapeutic breakthrough. In Jacqueline’s reply, she denied she brought her motion pursuant to section 2-615.

¶ 18 On June 17, 2021, the circuit court granted Jacqueline’s motion to dismiss Benjamin’s amended petition to invalidate. At the argument on the motion, the court, confirmed it granted dismissal on the basis of both subsections (a)(4) and (a)(9) of section 2-619. Regarding section 2-619(a)(9), the court explained, "the marriage was dissolved and, therefore, there’s no marriage at this time to invalidate.’’

¶ 19 Benjamin moved to reconsider that dismissal. At an August 6, 2021, proceeding on the motion, his counsel responded to the question of whether Benjamin alleged any "repressed memory" of the sexual assault with "[n]ot specifically." The circuit court denied the motion. In so ruling, it specified that it believed, "you can’t invalidate a marriage that’s already been dissolved." The court further stated, "I don’t think the theory of dominion and control equates to [lack of] legal capacity." It acknowledged Benjamin did not present a typical repressed memory argument, where "the repressed memory [is the victim doesn’t] even remember the facts."

¶ 20 On August 26, 2021, Benjamin filed a "motion" to terminate maintenance, arguing that his therapeutic breakthrough constituted a "substantial change in circumstances." He requested that the circuit court terminate maintenance as of the date of filing.

¶ 21 Jacqueline moved to dismiss Benjamin’s ...