No. 3-00-0935
January 10, 2002

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE SLATER delivered the opinion of the court:_______________________________________________________________________________________________

The appellant, Johanne Drag, appeals from an order of thecircuit court of Will County upholding a pre-nuptial agreement. On appeal, Johanne argues that the trial court erred in: (1)determining that the pre-nuptial agreement was valid; (2)holding that proposed testimony to be given by Raymond'sattorney was protected by privilege; (3) enforcing the agreementwhen it was in violation of a confidential relationship andmanifestly disproportionate; (4) improperly shifting the burdenof proof at the hearing; (5) declining to modify the pre-nuptialagreement based upon changed circumstances; and (6) failing toallow her request for additional discovery. We affirm.

Raymond and Johanne were married on August 25, 1989. Johanne filed a petition for dissolution of marriage onApril 25, 1997. Initially, Johanne moved to dismiss herpetition, but Raymond filed a counter-petition for dissolution. Raymond then moved for a partial summary judgment and theenforcement of a pre-nuptial agreement signed by him and Johanneon August 24, 1989. In response, Johanne argued that the pre-nuptial agreement was unenforceable because: (1) it was enteredinto without full disclosure; and (2) the attorney whorepresented Johanne had a conflict of interest. After ahearing, the summary judgment motion was denied. Raymond thenfiled a petition for declaratory judgment as to the validity ofthe pre-nuptial agreement.

At the hearing on the petition it was established thatRaymond and Johanne moved in together in 1986. Three yearslater they decided to get married. Raymond insisted on a pre-nuptial agreement. Raymond contacted his attorney, HerbRosenberg, to draft the agreement. Raymond told Rosenberg thatJohanne also needed an attorney. Rosenberg then gave Johannethe names of three attorneys, including Tom Hogan, an attorneywho had represented Raymond in a divorce five years earlier. Johanne contacted Hogan by telephone on August 7, 1989, andscheduled an appointment to meet with him two days later. Onthat date, Johanne met with Hogan for one hour. Hogan toldJohanne that he had previously represented Raymond in hisdivorce and was somewhat familiar with Raymond's assets. Hoganreceived an oral waiver of the attorney-client privilege fromRaymond when he began to work for Johanne.

Rosenberg and Hogan agreed that Hogan would draft theagreement. Rosenberg, Raymond and Raymond's business managerprepared Raymond's financial disclosures for the agreement. They obtained current appraisals for all of Raymond's realestate as well as his business, Jimmy's Diesel. They gatheredtax returns, obtained actuarial statements for Raymond'sretirement accounts and current statements for Raymond's bankand stock accounts. Johanne had no assets other than an accountwith $30 in it and $5,000 in retirement benefits earned from heroccasional employment at Jimmy's Diesel. Raymond was worthabout six million dollars.

The agreement provided that in the case of a divorce,Johanne would be given $1,400 per month for six years. Johannewould also be entitled to half of the marital property,including furniture purchased subsequent to the marriage. Marital property was defined as property in which title wastaken in both Raymond and Johanne's name.

According to Johanne, Raymond told her he would always takecare of her and that the agreement was just a formality. Hoganrepeatedly told Johanne that she should not rely on thosepromises and that the written agreement would control. Hogantold Johanne that the agreement was not sufficiently generous. He advised her to delay the wedding in order to allow him timeto secure a better deal. Johanne said she wanted to get marriedand did not want to wait. Hogan felt that Johanne was not veryconcerned about the agreement and never allowed him much leewayto pursue her financial interests as he felt they should beaddressed.

The pre-nuptial agreement was signed on August 24, 1989,one day before the wedding. Hogan had the agreement in finalform at 2:30 p.m. that day. Johanne met with Hogan that day for2