No. 2--95--1519
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
In re MARRIAGE OF BONNIE M. ) Appeal from the Circuit Court
HIMMEL, ) of Du Page County.
)
Petitioner-Appellee, )
) Nos. 80--D--2269,
and ) 94--D--2447
PAUL R. HIMMEL, ) Honorable
) Kenneth W. Torluemke,
Respondent-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Respondent, Paul R. Himmel (Paul), appeals from the circuit
court's order of October 31, 1995, granting the petition of
petitioner, Bonnie M. Himmel (Bonnie), to vacate a judgment of
dissolution of marriage incorporating the terms of a marital
settlement agreement which the court entered on June 1, 1981, in
case No. 80--D--2269. See 735 ILCS 5/2--1401 (West 1994). We
vacate the circuit court's order and remand.
In support of her amended petition to vacate, Bonnie alleged
that respondent had fraudulently concealed his pension benefit;
alternatively, petitioner alleged that the settlement was
unconscionable. The court found that there was no fraudulent
concealment by Paul and that the provisions for relief from final
judgments found in section 2--1401 of the Code of Civil Procedure
(Code) (735 ILCS 5/2--1401 (West 1994)) did not apply. Citing
section 502 of the Illinois Marriage and Dissolution of Marriage
Act (Marriage Act) (750 ILCS 5/502 (West 1994)), the court
nevertheless vacated the June 1981 judgment, finding the settlement
agreement unconscionable. The court also found there was no just
reason to delay enforcement or appeal of its order. See 155 Ill.
2d R. 304(a). A timely appeal ensued. This court has appellate
jurisdiction. See In re Marriage of Tzoumas, 187 Ill. App. 3d 723,
728 (1989); In re Marriage of Carlson, 101 Ill. App. 3d 924 (1981);
155 Ill. 2d R. 304(b)(3).
The parties were married to each other twice. The first
marriage, which occurred in 1957, was terminated by a judgment of
dissolution on June 1, 1981. The marital settlement agreement
which was incorporated into that judgment divided the parties'
marital and nonmarital assets but did not list Paul's pension. The
transcript of that proceeding shows that Bonnie voluntarily chose
not to be represented by counsel at the hearing. She stated that
she reviewed the agreement, that she had employed counsel to review
it, that she understood all the terms of the agreement, that it was
fair and equitable, that she was not coerced to sign the agreement,
and that she intended to be bound by it. Evidence concerning the
parties' assets was presented, but the pension was not mentioned.
The court found that the agreement was entered into voluntarily by
the parties and that it was not unconscionable, and it entered the
final judgment of dissolution.
The parties were remarried to each other on December 10, 1982.
On September 20, 1994, Bonnie filed a petition for dissolution of
the second marriage in case No. 94--D--2447. Paul, who was now
retired, had been continually employed by People's Gas from 1959 to
October 1993. The record indicates that he received a lump sum
retirement benefit, the estimated value of which in December 1993
was $352,000. The sum was transferred into an investment fund.
On March 21, 1995, Bonnie filed a petition to vacate
(petition) the 1981 judgment, alleging that this pension had been
fraudulently concealed from her and this fraud tolled the two-year
limitations period for vacatur of the judgment. See 735 ILCS 5/2--
1401(c) (West 1994)). She also requested that the two cases be
consolidated. Paul moved to dismiss the petition, arguing there
was no showing of misrepresentation or that the asset was
intentionally concealed; that the petition failed to comply with
section 2--1401; and that Bonnie failed to challenge or attempt to
modify the agreement in a timely manner and was now estopped from
raising the claim. Bonnie filed an amended petition to vacate,
arguing that, under section 502 of the Marriage Act, the court
could find the settlement agreement unconscionable, vacate the
judgment, and distribute the assets equitably. Paul argued that
section 2--1401 of the Code was controlling, not section 502 of the
Marriage Act which permits a court to reject as unconscionable a
property settlement agreement made in connection with the
dissolution of a marriage; if not found unconscionable, such an
agreement would be binding upon the court. 750 ILCS 5/502(b), (c)
(West 1994).
At the evidentiary hearing on August 29, 1995, the court
consolidated the cases for the purpose of hearing the petition and
respondent's motion to strike and dismiss. Bonnie testified she
was not represented by counsel at the 1980 dissolution proceeding.
She spoke to Paul's attorney, Bruce David, prior to the entry of
the judgment. He informed her that he could not represent her.
Prior to the hearing in that case, Paul had mentioned that he would
eventually be entitled to retirement benefits from People's Gas.
Paul had previously told her that, when he retired, if she were
married to him, they would receive the retirement benefits. David
did not mention that she would receive retirement benefits as a
result of the settlement agreement. She did not recall that Paul
ever mentioned the monetary value of his pension. She did not know
at the time of the settlement whether she was entitled to any funds
from his pension and did not question that it was not listed in the
settlement agreement. She conceded that she knew of the pension
from her conversations with Paul over the years. She remarried
Paul in December 1982.
Paul testified that he retired in October 1993 after a heart
operation, having worked for People's Gas continuously for 34
years. The lump sum pension distribution took place in December
1993 and was deposited into an investment account the value of
which fluctuated with the market. In 1981, he did not believe the
pension had a value because it was a "free" pension. He made no
contributions to it. In order to collect the pension, he had to
qualify by having accumulated 85 points. The points included the
age of retirement (age 55) added to the years of service (30
years). He believed he was vested after 10 years, but he would
have received nothing in 1982 if he had left the company. He could
only receive the pension after reaching age 55 and thought it had
no value at the time of the dissolution. He discussed the pension
with his attorney and Bonnie at the time of the first dissolution
proceeding. He believed the property distribution had been equally
divided.
Paul contends that a section 2--1401 petition is the proper
vehicle by which to vacate a judgment after 30 days have elapsed
from its entry. Subsection 2--1401(c) of the Code states:
"[T]he petition must be filed not later than 2 years
after the entry of the order or judgment. Time during which
the person seeking relief is under legal disability or duress
or the ground for relief is fraudulently concealed shall be
excluded in computing the period of 2 years." 735 ILCS 5/2--
1401(c) (West 1994).
A section 2--1401 petition serves to bring to the court that
rendered judgment facts not appearing of record which, if known,
would have prevented its rendition. In re Marriage of Broday, 256
Ill. App. 3d 699, 705 (1993). However, the proceeding is not
intended to give the litigant a new opportunity to do that which
should have been done in an earlier proceeding or to relieve the
litigant of the consequences of her mistake or negligence. Broday,
256 Ill. App. 3d at 705. To prove fraudulent concealment, the
petitioner must show by clear and convincing evidence that the
respondent intentionally misstated or concealed a material fact
which he had a duty to disclose and that she detrimentally relied
upon his statement or conduct; for the concealment to be
actionable, it must be such that the silent party intended to
deceive the other. Broday, 256 Ill. App. 3d at 703. Furthermore,
a settlement agreement will be set aside only if the
misrepresentation of the assets could not reasonably have been
discovered at the time of, or prior to, the entry of the judgment,
and a litigant will not be relieved of the consequences of her lack
of diligence in failing to discover such information relevant to
the dissolution proceeding. 256 Ill. App. 3d at 703.
Here, Bonnie clearly knew of the pension, but took no timely
affirmative action to discover its value or to assert her claim to
it. There is no evidence that Paul intentionally misrepresented or
concealed this asset. We agree with the trial's conclusion that
there was no fraudulent concealment which would toll the two-year
limitations period prescribed by section 2--1401.
We next consider whether the court could otherwise properly
vacate a 14-year-old judgment under the circumstances presented.
The court appears to have relied on section 502 of the Marriage Act
pertaining to the presentation of property settlements to the court
in connection with the entry of a judgment of dissolution. The
court is bound by the agreement in rendering its judgment of
dissolution unless it finds that the agreement is unconscionable.
However, we are unaware of any authority of a trial court to vacate
a final judgment of this vintage based on that provision. The
cases cited by the court in its order include In re Marriage of
Reines, 184 Ill. App. 3d 392 (1989), and In re Marriage of Carlson,
101 Ill. App. 3d 924 (1981). We do not find those cases
dispositive.
In Reines, the reviewing court concluded that the petitioner
was entitled to a hearing on her section 2--1401 petition when she
alleged (presumably fraudulent) concealment of assets and contended
on appeal that the settlement agreement was unconscionable. The
relief was requested pursuant to section 2--1401 of the Code, and
no question regarding the limitations period was raised. Thus, the
question was not presented whether the court could vacate the
judgment beyond the two-year limitations period pursuant to section
502 of the Marriage Act.
Similarly, in the Carlson case, the reviewing court concluded
that the trial court's partial vacatur of a judgment incorporating
a settlement agreement for unconscionability was proper where the
petitioner brought the petition pursuant to section 2--1401 of the
Code. It appears from the limited recitation of the facts in that
case that the petition was timely and no limitations problem was
considered. In both cases, the decisions rested on the court's
authority to grant or deny a section 2--1401 petition rather than
on any authority purportedly conferred by section 502 of the
Marriage Act which permits a court to reject the parties'
settlement agreement for unconscionability when it enters a
judgment of dissolution. A court's authority to vacate a judgment
that has become final is narrowly circumscribed by the limited
methods available under Illinois law to vacate or set aside final
judgments.
The case of King v. King, 130 Ill. App. 3d 642 (1985), is
highly instructive. In that case, the reviewing court found that
the trial court had no jurisdiction to consider a post-judgment
"motion" brought more than two years after the entry of a final
judgment of dissolution where the respondent wife alleged that a
significant marital asset was not included in the marital
settlement agreement (a large personal injury settlement received
by the husband after the judgment was entered). The trial court
rejected section 2--1401 as the basis for modifying the judgment as
there was no evidence of fraudulent concealment. However, relying
on section 503 of the Marriage Act, which confers a court's
authority to divide marital assets (750 ILCS 5/503 (West 1994)),
the trial court determined that the original judgment was not final
as it failed to include the asset; the court then awarded
respondent a share of the funds. On appeal, respondent again
maintained that since the trial court had not disposed of all the
marital property in its original order, the disposition was not
final and the court retained jurisdiction to modify the judgment
despite a lapse of more than two years. The reviewing court
disagreed.
The reviewing court in King found that the original judgment
was final. The court noted that the existing section 510(a) of the
Marriage Act provided that " '[t]he provisions as to property
disposition may not be revoked or modified, unless the court finds
the existence of conditions that justify the re-opening of a
judgment under the laws of this State.' " (Emphasis in original.)
King, 130 Ill. App. 3d at 654, quoting Ill. Rev. Stat. 1983, ch.
40, par. 510(a) (now 750 ILCS 5/510(b) (West 1994)). The court
explained that a judgment of dissolution must be accorded the same
degree of finality as judgments in other proceedings. Since there
was no basis to toll the two-year limitations period under section
2--1401 of the Code, the reviewing court concluded that the trial
court did not have jurisdiction to consider the respondent's
belated "motion" for post-judgment relief and vacated the trial
court's order for lack of jurisdiction.
The court observed that, though not invoked by the respondent
in the case before it, there were other methods under the laws of
Illinois to seek relief from a final judgment after 30 days from
its entry other than by means of a section 2--1401 petition
(including legal disability, duress, and fraudulent concealment).
In appropriate circumstances, relief from a final judgment sought
more than 30 days after its rendition may be granted by application
of the revestment doctrine; by a finding that the judgment is void;
by agreement of the parties; and by entering an order nunc pro
tunc. King, 130 Ill. App. 3d at 655. None of these additional
methods is applicable here. The court in the original proceeding
had jurisdiction to enter its order; the order was final and was
not subject to vacatur or modification.
We agree with the rationale of King. The policy respecting
the finality of judgments must be followed here. We have been
provided no authority which would persuade us to engraft
unconscionability onto section 2--1401 as an additional basis on
which to toll the two-year limitations period and thus permit the
court to vacate the judgment. We fail to see how section 502 of
the Marriage Act supersedes the usual two-year limitations period
of section 2--1401. This limitation has been strictly construed
by the courts, and, even if the circumstances were believed to
warrant it, we cannot extend the limitation by judicial fiat.
Sidwell v. Sidwell, 127 Ill. App. 3d 169, 173 (1984). The
limitations period "mandated by this section must be adhered to in
the absence of a clear showing that the person seeking relief is
under legal disability or duress or the grounds for relief are
fraudulently concealed." Sidwell, 127 Ill. App. 3d at 174.
Because the parties remarried after the entry of the 1981
judgment, Bonnie also urges this court to affirm the trial court's
decision on any basis supported by the record. Citing Ringstrom v.
Ringstrom, 101 Ill. App. 3d 677, 680-81 (1981), Bonnie asserts
that, once the parties remarried each other, they were restored to
their respective rights as husband and wife as if they had never
been divorced. She maintains, apparently for the first time on
appeal, that the original settlement agreement is unenforceable.
Since this issue appears to have been raised here for the first
time in a rather cursory manner and was not presented to the trial
court for consideration, we decline to consider it on the state of
this record.
Paul appears to state the more current view of the rule that
the remarriage of the parties to each other does not render the
original dissolution judgment or the proceedings void, but the
remarriage merely renders the prior judgment unenforceable at least
to the extent that it is unexecuted or incomplete. In re Marriage
of Parks, 258 Ill. App. 3d 479, 484-85 (1994). We make no ruling
on the merits of the parties' respective positions. We believe
that any new theory regarding whether Paul's retirement benefits
are reachable, other than by vacatur of the 1981 judgment, should
be fully articulated and presented to the trial court in the first
instance. The issue presented to this court for review is whether
the trial court erred in vacating the judgment of dissolution.
Whether a prior judgment may be vacated is a different question
than whether and to what extent that judgment may be unenforceable
by reason of subsequent events.
Because the cause is being remanded, we leave it to the trial
court to consider any additional legal theories raised by the
parties in fashioning an equitable distribution of their assets.
The trial court begins with a clean slate except that any relief
granted must be consistent with the views expressed herein.
Since the circuit court had no authority to vacate the 1981
judgment, we vacate its order of vacatur and remand the cause for
further proceedings.
Vacated and remanded.
BOWMAN and RATHJE, JJ., concur.