King v. King

474 N.E.2d 834, 130 Ill. App. 3d 642, 85 Ill. Dec. 874, 1985 Ill. App. LEXIS 1557
CourtAppellate Court of Illinois
DecidedJanuary 29, 1985
Docket5-83-0740
StatusPublished
Cited by14 cases

This text of 474 N.E.2d 834 (King v. King) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. King, 474 N.E.2d 834, 130 Ill. App. 3d 642, 85 Ill. Dec. 874, 1985 Ill. App. LEXIS 1557 (Ill. Ct. App. 1985).

Opinion

PRESIDING JUSTICE JONES

delivered the opinion of the court:

This appeal presents the question whether the trial court had jurisdiction to hear the respondent’s post-trial motion seeking to supplement a judgment for dissolution of marriage and order adjudicating property rights when the motion was filed over two years after the entry of judgment and alleged that the order was not final because of failure to dispose of part of the parties’ marital property. We hold that the trial court lacked jurisdiction to hear the motion.

The petitioner, Lloyd Edward King, Jr., and the respondent, Terre Gail King, were married in 1972. In May of 1978, while the petitioner was an employee of the St. Louis Southwestern Railway Company, he was injured in a collision between one of his employer’s trains and one owned by the Missouri Pacific Railroad Company. In July of 1979 he filed his complaint as sole plaintiff in a personal injury suit against the two railroad companies. In October of 1979 the parties separated, and the following month the petitioner sought to have the marriage dissolved. In her “response” to the petition for dissolution the respondent set forth under marital assets, listed in exhibit A, the following:

“6. A cause of action in which the Petitioner is suing the Cotton Belt [St. Louis Southwestern Railroad Company] and Missouri and Pacific Railroad Companies.”

During the proceedings for dissolution each party was represented by counsel. On April 2, 1983, a hearing was held by the trial court concerning the disposition of the parties’ property. At the beginning of the hearing the trial court asked whether “there [has] been some agreement agreed upon between the parties.” Respondent’s counsel answered, “Yes, your Honor, we’ve been negotiating and all the parties have come to what we feel is an equitable agreement.” At the conclusion of the hearing the trial court expressly stated that it would “incorporate into the dissolution the property settlement agreement that the parties have worked out today here in open court.” At the courthouse, prior to the hearing, the parties and their attorneys had discussed, for a period of about IV2 hours, matters relating to the disposition of property including the personal injury suit. At the hearing, however, the personal injury suit was not mentioned. The judgment of dissolution of marriage and order adjudicating property rights filed on April 9, 1980, is likewise silent with regard to it.

In general, the order adjudicating property rights provided that the petitioner would pay the parties’ debts, amounting to about $28,000, and would receive most of their property, which was modest. The petitioner received a 1975 mobile home measuring 14 by 70 feet, a 1973 International Scout, a 1966 pickup truck, a tractor, and half the property in a small family business. Upon receipt of $2,500 from the petitioner, the respondent was to convey to him her interest in 40 acres of farmland located in Alexander County and valued at approximately $8,500. The respondent also received title to a 1973 Dodge van, half the property in the small family business, and some of the household goods and furniture. As part of the approximately $28,000 in debts, the petitioner paid $2,000 due on the Dodge van.

On April 29, 1982, slightly over two years after the entry of judgment, the petitioner entered into a settlement agreement with the railway companies concerning the personal injury lawsuit. The settlement provided for a “total guaranteed payment” to him of $1,699,800.

On August 31, 1982, the respondent filed a post-trial motion and alternative petition for enforcement alleging that the “Judgment failed completely to address the issue of whether this alleged marital asset was in fact, ‘a marital asset’ and furthermore, failed completely to dispose of the same” and that

“this Court is required under Chapter 40, Paragraph 503, Illinois Revised Statute [sic], 1978 [sic], to dispose of the marital property of the parties in a just and equitable manner; that the Judgment of the trial court absent disposal of this significant asset is not a ‘final judgment’ for purposes of appeal or for purposes of post-trial relief and this Court retains jurisdiction to dispose of the marital asset not previously disposed of; that the valuation of same is now determinable, whereas the same was not available at the time of this Court’s purported Judgment.”

The respondent asked the trial court to enter a supplemental order determining whether the settlement of the suit for personal injury was marital property and, if so, disposing of it accordingly. In a second count of the post-trial motion the respondent alleged fraud on the part of the petitioner in having substantially concealed the existence and value of this “marital asset” from her and sought relief accordingly.

In response to the petitioner’s motion to dismiss the post-trial motion, an order of the trial court was filed on December 23, 1982, in which the court denied the motion to dismiss as to count I and granted it as to count II. In ruling the trial court found:

“The petition to re-open is premised on two theories; one, that the original Judgment of Dissolution was not final because the Court did not dispose of all the marital assets of the parties, and second, that of post-judgment relief under what used to be known as Section 72, which has been replaced and now is Section 1401 [sic] in the new code of Civil Procedure. 1401 is essentially the same as before. In order to successfully maintain this type of an action after two years from the entry of the judgment there must be an affirmative showing of fraudulent concealment. This was not present in the instant case as evidenced by the fact that the Respondent was aware of this possible marital asset before the judgment. Additionally, with full advise [sic] of counsel of her choice, she did voluntarily participate in the property settlement agreement offered to the Court. To say now that the Petitioner fraudulently concealed this asset is not sustained by the pleadings.
However, Count I of the Petitioner’s [sic] Motion does present sufficient facts and pleadings to justify re-opening that part of the Dissolution concerning the Court’s duty to divide the marital property pursuant to Section 503(c) of Chapter 40. Ordinarily, a property settlement is binding upon the parties, especially if each had counsel and there was no showing of coercion. Yet, the possibility of such a substantial asset (the alleged 1.8 million dollar personal injury settlement) does require the Court to allow the Respondent to argue that a large portion of the marital property was not disposed of in the Decree of Dissolution, hence the judgment was not final.
The Court cautions that nothing in this ruling should be interpreted nor construed to indicate any opinion as to whether or not the personal injury settlement or any part thereof is marital property.”

On July 25, 1983, the respondent filed an amended post-trial motion, adding the following paragraph to both counts:

“9.

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Cite This Page — Counsel Stack

Bluebook (online)
474 N.E.2d 834, 130 Ill. App. 3d 642, 85 Ill. Dec. 874, 1985 Ill. App. LEXIS 1557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-king-illappct-1985.