dissenting:
I respectfully dissent from the majority’s opinion in this matter.
I agree with the statement of facts contained herein. As the trial court found and the parties concede, there are no genuine issues of material fact. I also agree that the issue presented focuses on the Agreement entered into between the parties at the time of the dissolution of their marriage, and that our analysis must center on the meaning of the contractual language they chose in dealing with Phillip’s IMM Membership.
However, this is where my agreement with the majority ends, for two reasons. First, it is my view that there has not been a sale of the IMM Membership which would trigger Pamela’s right to proceeds therefrom. Second, even if Phillip did “sell” a portion of the IMM Membership when he sold the Class A stock he received during the demutualization and merger, I conclude that the Agreement, which I agree is unambiguous, would not provide the avenue for recovery Pamela insists it does in light of the circumstances presented and well-established contract law.
I begin with my primary conclusion that the trial court was correct in its determination that there has not been a sale of the IMM Membership. When Phillip purchased the Membership, CME assigned him IMM Membership No. 602. The record demonstrates that Phillip still owns this, as confirmed in CME’s associate director of shareholder relations and membership services Robert Krewer’s letter dated April 5, 2007. As this letter, written long after the demutualization and merger process, states, Phillip still “owns [IMM] membership #602 at the Chicago Mercantile Exchange Inc.”
In addition to Krewer’s letter, the CME rulebook, present in the record, contains a section entitled “Membership Rules.” These rules dictate a certain, specific process that must be followed by CME members, including Phillip, who wish to sell their memberships. As revised in 2008 — again, long after the demutualization and merger process — the rules mandate that a membership “may only be sold as provided for in the Rules”; the sale can only begin when the member signs and files an “Offer to Sell” with the membership services department, and this offer must contain “the price at which he is offering his membership, and *** an agreement to the conditions of the sale.” The rules make clear that, “[u]pon the sale of a membership, any and all membership privileges *** shall terminate.” Clearly, then, we are not solely dealing, as the majority states, with “the plain and ordinary meaning of the word ‘sale’ ”; there are, instead, these rules that must be considered. 402 Ill. App. 3d at 573. And, there is nothing in the record, and neither party suggests, that Phillip completed, or even commenced, this required process to sell the IMM Membership. He never signed or filed an offer to sell, as required by the rules, to begin a sale. Moreover, as noted in Krewer’s letter and as agreed to by the parties, Phillip still enjoys membership privileges he obtained when he purchased the IMM Membership — privileges which, according to the rules, would terminate upon a sale. Based on these clear facts, I simply cannot find that a sale of the membership occurred here. Accordingly, without a sale, the Agreement’s provision entitling Pamela to one-half of the proceeds has not (yet) been triggered.
Even if a sale had taken place, I still could not agree with the majority that Pamela is entitled to one-half of what Phillip recovered pursuant to the Agreement.
The reasoning for my conclusion begins and ends with a proposition that everyone can agree with: assuming that a sale occurred, Phillip sold only part of the IMM Membership. That is, even though he sold the Class A stock, he retained (and still owns) the Class B stock and the new membership interest. In fact, the majority acknowledges as much when it states that “there was a definable sale of a substantial portion of the IMM Membership.” (Emphasis added.) 402 Ill. App. 3d at 572.
However, the Agreement does not deal with a partial sale of the membership. And, as it is this instrument that controls, I cannot find that its provision entitling Pamela to one-half can be applied in light of the circumstances here.
Just as the majority notes, our main objective is to give effect to the intentions of the parties at the time they entered into the Agreement. See Blum v. Koster, 235 Ill. 2d 21, 33 (2009). However, we further note that where, as here, the agreement at issue is unambiguous, we must look to its language — and only its language — to determine this intent. See In re Marriage of Turrell, 335 Ill. App. 3d 297, 305 (2002) (“[w]hen the terms are unambiguous, the court determines the parties’ intent solely from the language of the instrument”); In re Marriage of Druss, 226 Ill. App. 3d 470, 475 (1992). This is because we are to assume that the parties inserted each term and provision deliberately and for a specific purpose, and these may not be construed in a manner that is contrary to or different from the plain and obvious meaning of the language used. See Marriage of Turrell, 335 Ill. App. 3d at 305. Nor may we judge the wisdom of the Agreement’s provisions to which the parties agreed. See Marriage of Druss, 226 Ill. App. 3d at 475.
Significantly, we cannot alter, change or modify the Agreement’s terms, add new terms or conditions to which the parties did not assent, write into the contract a provision they omitted or take away a provision they included. See Gallagher v. Lenart, 367 Ill. App. 3d 293, 301 (2006). When a contract purports on its face to be a complete expression of the agreement between the parties, we cannot add a term or provision about which it is silent, especially if it is one that could easily have been included by the parties themselves, and even if it would make the outcome more equitable. See Gallagher, 367 Ill. App. 3d at 301-02; Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 417 (2003).
Apart from the provision in the Agreement dealing with maintenance, only Article III, paragraph E, addressed Phillip’s IMM Membership. It plainly states that he is to retain it “free and clear of any interest therein by Pamela”; the only conditions precedent which would vest a right in the membership in Pamela are Phillip’s death (as long as it is before hers), and if Phillip “sells the [membership]” during his lifetime. This provision speaks only in absolutes — for Pamela to have an interest in the membership, Phillip must predecease her (upon which she will receive the whole membership) or he must sell the membership (upon which she will receive one-half of the proceeds). This provision does not provide for the event of the sale of a “portion” of the membership, substantial or otherwise; words to the effect of a “partial sale,” which Pamela and the majority assert occurred, are simply not included here. Nor does the Agreement address the division of stock or anything else derived from the membership. Instead, under the Agreement, Pamela’s right to one-half of the proceeds from a sale of the membership are dependent upon just that: the sale of the Membership, and not a part or portion of it.
My conclusion is further supported by other provisions of the Agreement itself, which the majority, too, recognizes must be considered as a whole. Article III, the only to deal specifically with the IMM Membership, concludes by stating that Pamela and Phillip wish to treat the property transfers in the Agreement, including the membership, as “economic severance.” In other words, once they divorced and property was transferred, “each parties’ [sic] assets, income from the assets and income” was now to “be treated as that person’s separate non-marital property.” As I believe that Phillip did not sell the membership, I find that it remains his asset which, according to this provision of the Agreement, is to be treated as his non-marital property separate from any right Pamela may have which will be triggered (only) when (and if) Phillip sells it.
Furthermore, the Agreement states that Pamela and Phillip “forever waive, release, relinquishes [sic] and quit claim to the other all rights of homestead, maintenance and all other property *** which he or she now has or may hereafter have *** in or to, or against the property of the other party, or his or her estate, whether now owned or hereafter acquired by such party.” Pamela and Phillip also made clear that the Agreement comprised the “entire agreement” between them, and that it was to be final and nonmodifiable. Again, neither the Class A stock, nor the sale of a portion of the membership (which the Class A stock may represent), was dealt with in the Agreement. Therefore, the proceeds Phillip received from selling the Class A stock comprised property he acquired, or derived, after the Agreement’s execution and the parties’ divorce. As such, Pamela has agreed to forever waive and relinquish any right she may have in this property pursuant to the very Agreement she signed.
From our review of the Agreement as a whole, we find that the intentions of the parties regarding the membership upon their divorce are easily decipherable from the language they chose to use: Phillip was to pay Pamela maintenance from the membership’s rental income for the first 72 months (which he did), and he was to give her one-half of any proceeds he received if and when he sold the membership during his lifetime; otherwise, he was to retain this Membership as his sole property free and clear of any interest on her part, it was to be considered his separate property after the divorce, and she waived any property right he would acquire from it. Phillip has yet to sell the membership; rather, he sold only a portion of it which he acquired after the divorce. The Agreement never mentioned the sale of a portion of the membership; it speaks only to what is to occur when Phillip “sells” the membership — not a portion of it, not a fractional interest in it, nothing less than the whole. This is the language the parties chose to use and they are bound by it, free from our judgment regarding its wisdom.
Finally, the majority asserts that, had Phillip really intended to prevent Pamela from ever receiving the proceeds from stock sales involving the IMM Membership, he would have included a sentence in the Agreement to this effect. While this may be true, I do not find it to be a proper determinative consideration on the part of this court. First, as I noted earlier, we cannot alter, change or modify the Agreement and, particularly, we cannot write into it a provision that the parties omitted or upon which they were silent, especially if it was one the parties could have easily included but chose not to, even if it would provide for a more equitable outcome. Just as the majority believes it was Phillip’s duty to include such language in the Agreement, I posit that it was Pamela’s duty to secure, in a more clear and enforceable way, her claimed one-half interest. As a seat holder herself, Pamela knew at the time she signed the Agreement, just as Phillip, that changes to the IMM Membership were on the horizon. She, easily, could have anticipated that a provision would be required to deal more specifically with the membership, but she, just as Phillip, chose not to include one in the Agreement. The critical difference, however, is that it is Pamela, and not Phillip, who is seeking to enforce an alleged interest under that very Agreement.
Ultimately, Pamela’s rights to the membership are limited by the terms of the Agreement, for which the parties voluntarily bargained. These are clear that until Phillip predeceases Pamela or until he sells the membership, Pamela is not entitled to anything Phillip may derive from the membership, which was explicitly reserved to him as his sole property free and clear of any interest she may have. As Phillip has not died nor sold this asset, he still retains ownership of Membership No. 602 and none of the conditions precedent have occurred which would trigger Pamela’s rights regarding the membership pursuant to the Agreement.
Accordingly, for these reasons, and in contrast to the majority here, I would affirm the judgment of the trial court.