2020 IL App (1st) 190738-U
THIRD DIVISION March 25, 2020
No. 1-19-0738
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
CINQUE ROBINSON, ) Appeal from the ) Circuit Court of Petitioner-Appellant, ) Cook County. ) v. ) No. 06 D 630907 ) JANEEN D. GUAJARDO f/k/a JANEEN D. WATSON, ) Honorable ) Sharon O. Johnson, Respondent-Appellee. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court of Cook County is affirmed; petitioner failed to provide a sufficient record to demonstrate the trial court abused its discretion in denying his petitions for relief from judgments denying his motion for a plenary order of protection and modifying the allocation of parental responsibilities; even had petitioner included a transcript of the hearing on the petitions in the record on appeal the outcome would remain the same because based on the arguments both on appeal and in the trial court petitioner only presented matters the trial court previously considered in support of his petitions to vacate judgments.
¶2 Petitioner, Cinque Robinson, filed separate petitions to vacate two judgments in his
ongoing dissolution proceedings with respondent, Janeen Guajardo (formerly known as Janeen
Watson). The earlier judgment vacated an emergency order of protection Robinson obtained 1-19-0738
against Watson in favor of their minor daughter and denied Robinson’s motion for a plenary
order of protection, and the later order denied Robinson’s requested relief on a petition to modify
custody but did reallocate parental responsibilities. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 This appeal has its origins in a dissolution proceeding between petitioner, Cinque
Robinson, and respondent, Janeen Guajardo, f/k/a Janeen Watson (Watson) (we will continue to
refer to respondent as Watson only for purposes of continuity with our prior orders), that began
in September 2006. This court previously touched upon the specific issues Robinson currently
seeks to bring before this court in our last disposition of an appeal by Robinson from those
ongoing proceedings. See In re Marriage of Robinson and Watson, 2018 IL App (1st) 172195-U
(hereinafter, “the prior appeal”). The ongoing issues have surrounded custody of the parties’
child, J.R.
¶5 On May 31, 2016, Robinson, acting pro se, filed a motion in the dissolution proceedings
on behalf of J.R. for an order of protection against Watson. The trial court denied that motion on
July 22, 2016. Robinson attempted to argue the denial of the motion for an order of protection in
the prior appeal but we found that order was not before the court at that time. Id. The motion
alleged as follows:
“In summary on or about May 27, 2016 my daughter’s *** mother violated court
ordered visitation. During that violation, the mother (Janeen Watson) violated a
court order to not use corporal punishment on [J.R.]. That court order was
entered on January 8, 2015. Two police reports were filed by me. [J.R.] told me
on May 30, 2016 that her mother whipped her with a belt on her back, buttocks on
[sic] thighs.”
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The motion stated that Robinson “fears for safety of minor and further abuse.” On the same day,
the trial court entered an emergency order of protection and granted Watson supervised visits and
telephone contact with J.R. The court extended the emergency order to, and set the matter for a
hearing on, July 22, 2016. On July 22, 2016, the trial court entered an order stating that after a
hearing on the record, the emergency order of protection is terminated. The same day the court
entered an order of continuance for a status report on September 30, 2016, pending appeal.
¶6 In this appeal, Robinson claims that
“[o]n July 22, 2016, [Watson] fully confessed to knowing there is an order
prohibiting J.R.’s parents from hitting J.R. with the belt, and to intentionally
violating that order by whooping J.R. with a belt on May 27, 2016, exactly as I
accused her of, on behalf of J.R. The court ruled that the actions committed by
[Watson,] which she fully confessed to, did not rise to the level of abuse as
defined by the Domestic Violence Act. And as a result, I did not meet my burden
of proof to obtain a plenary order of protection. The order of protection was
terminated.”
Robinson’s brief then cites to the trial court’s July 22, 2016 order.
¶7 On August 2, 2016, Robinson filed a motion “to reconsider and reinstate the interim order
of protection pending hearing on reconsideration.” Robinson’s motion asked the trial court to
reconsider its July 22, 2016 order and to reinstate the interim order of protection entered on an
emergency basis on the grounds there were videotaped complaints by J.R. of “two separate
incidents of battery” by Watson, “police reports and hospital records of the alleged incidents and
court documents from court appointed evaluators citing behavior by J.R. associated with abuse—
physical and sexual.” The August 2016 motion to reconsider argued the court should reconsider
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because it did not take into consideration the videotape and police and hospital reports. The
motion asked the court to reconsider its judgment denying a plenary order of protection and to
reinstate the interim order of protection. On August 5, 2016 the court set the matter for hearing
on December 1, 2016.
¶8 On August 12, 2016, Robinson filed a notice of appeal from the August 5, 2016 order
seeking to “overturn trial court’s decision and enter a 2-year plenary order of protection due to
child abuse against the minor child by [Watson.]” On September 30, 2016 the trial court entered
an order of continuance until October 28, 2016 for a status report on the appeal. On October 28,
2016, the trial court granted Robinson’s motion to waive transcript and subpoena fees and
continued the matter for “status on appeal.” On December 9, 2016 the trial court continued the
matter to December 21, 2016 for “status report regarding ruling on motion to reconsider ***.”
The trial court entered two more orders continuing the matter for status on appeal, and on June 7,
2017, this court filed a mandate dismissing Robinson’s appeal for want of prosecution.
¶9 The order at issue in the prior appeal denied Robinson’s requested relief in his April 2014
original, and May 2015 amended, motion to modify custody but also ordered a change in the
allocation of parental responsibilities. See In re Marriage of Robinson and Watson, 2018 IL App
(1st) 172195-U, ¶ 23. After several continuances, on May 3, 2017, the trial court set the motion
to modify custody for trial on August 28 and 29, 2017. On August 29, 2017, the trial court
entered an order setting the matter on September 1, 2017 for entry of a final order after hearing
and ordering the parties’ parenting time. We laid out the proceedings leading up to and the
allegations in the original and amended motions to modify custody resulting in the trial court’s
September 1, 2017 order in the disposition of the prior appeal. See In re Marriage of Robinson
and Watson, 2018 IL App (1st) 172195-U. We dismissed the prior appeal because of Robinson’s
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“complete failure to comply with Illinois Supreme Court Rule 341.” Id. ¶ 25. Nonetheless, we
stated that, Robinson’s “brief notwithstanding, we have carefully reviewed the record and we are
cognizant of petitioner’s claims, including that J.R.’s school performance and behavior improve
when petitioner spends more time with her. Based on that review and the strong presumption
afforded the trial court’s ruling we cannot say that a manifest injustice has been done to J.R. by
the trial court’s September 1, 2017 order that is the subject of this appeal.” Id. ¶ 24.
¶ 10 In the instant appeal, Robinson states that on July 17, 2018, he filed two separate
petitions for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-1401 (West 2018)). Robinson states he filed a petition for relief from the
July 22, 2016 judgment denying his motion for an order of protection and a petition for relief
from the September 1, 2017 judgment reallocating parental responsibilities. Robinson states the
trial court heard both petitions on March 19, 2019. Robinson’s brief before this court goes on to
state as follows:
“In the hearing on March 19, 2019 I made the same argument for both
relief from both orders, that there is photographic evidence in the record of J.R.
having been physically abused resulted in bruises, there is a video of J.R. accusing
her mother of pushing her (J.R.) down a flight of stairs as a punishment and
injuring J.R. in her crotch—a video that has never been seen by the court. I
argued that J.R.’s poor conduct in school and her grades going from great to poor,
along with [Watson] spending considerably less and less time with J.R. for
anything, but especially to help J.R. with schoolwork, which was fully confessed
by [Watson] at trial in 2017, constituted a substantial change in circumstances in
both J.R. and [Watson,] by physical evidence and confession. And that the errors
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made by the court in arriving at the judgments from which I sought relief were
reversible.
In the process of making these arguments before the court in this Section
2-1401 hearing, [Watson] while arguing against the points I had made in my
argument, admitted that she had previously abused J.R. When [Watson] finished
her argument, I pointed out to the court that [Watson] had indeed admitted to
abusing J.R., in fact, using those words. [Watson’s] exact statement as shown in
the transcript was, ‘I have not abused her since the past.’ [Watson] was speaking
on the fact that I have been accusing [Watson] of abusing J.R. [The trial judge]
acknowledged, on the record, that [Watson] had made that admission and noted in
the order that ‘additional findings were made on the record.’ ”
¶ 11 On August 8, 2018, the trial court entered an order continuing the matter for status on
“modification of parenting time and motions to vacate.” On November 26, 2018, Robinson filed
a motion for expedited hearing on the petitions to vacate. On December 6, 2018 the trial court
denied that motion. On January 17, 2019, the trial court entered an order setting a trial date of
March 11, 2019 on the petitions to vacate the July 22, 2016 judgment and the September 1, 2017
judgment. On February 6, 2019, this court filed its mandate in the prior appeal.
¶ 12 On March 11, 2019, the trial court entered a written order. The written order states the
matter had come before the court for hearing on Robinson’s “Petition for Rule to Show Cause,
motion to vacate this Courts [sic] September 1, 2017 order and his motion to vacate this Courts
[sic] July 22, 2016 order.” The March 2019 order states the court “considered the documentary
evidence, testimony of one witness, and testimony and argument of the parties,” both of whom
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were self-represented. The written order, which is in the record on appeal, found and ordered as
follows:
“A. The Petition for Rule to Show Cause and Finding of Contempt against Janeen
Watson was granted per separate order.
B. Petitioner Cinque Robinson shall receive a credit of $100 toward his child
support arrears and the Health and Family Services accounting department and or
Illinois State Disbursement Unit shall adjust their records accordingly.
C. Petitioner did not meet his burden of proving that said orders should be vacated
pursuant to 735 ILCS 2-1401 as he did not demonstrate due diligence in
presentment of the claim, diligence in filing the motion to vacate, and that he had
a meritorious claim.
D. Additional findings were made on the record.
E. Petitioner’ [sic] motions to vacate the September 1, 2017 and July 22, 2016
orders are hereby DENIED.”
In a separate order the court found Watson in indirect civil contempt for not making J.R.
available for parenting time on a particular date.
¶ 13 Robinson now appeals the trial court’s March 11, 2019 order denying his section 2-1401
petitions for relief from the July 22, 2016 judgment denying his motion for an order of protection
and the September 1, 2017 judgment denying his requested relief and reallocating parenting
time.
¶ 14 ANALYSIS
¶ 15 Section 2-1401 of the Code provides a mechanism to obtain relief from final orders or
judgments “after 30 days from the entry thereof.” 735 ILCS 5/2-1401(a) (West 2018).
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Specifically, “[s]ection 2-1401 of the Code allows a court to vacate a final judgment after more
than 30 days.” U.S. Bank, National Ass’n as Trustee for Credit Suisse First Bos. CSFB 2005-11
v. Laskowski, 2019 IL App (1st) 181627, ¶ 15. “The petition must be supported by affidavit or
other appropriate showing as to matters not of record.” 735 ILCS 5/2-1401(b) (West 2018).
“The purpose of a section 2-1401 petition ‘is to bring before the court
matters of fact which were unknown at the time the judgment was entered, and if
known, would have affected or altered the judgment.’ [Citation.] A petition
pursuant to section 2-1401 invokes the equitable powers of the court as justice
and fairness require. [Citation.] To be entitled to relief under section 2–1401, a
petitioner must affirmatively set forth specific factual allegations supporting: (1)
the existence of a meritorious claim or defense; (2) due diligence in presenting
this claim or defense to the circuit court in the original action; and (3) due
diligence in filing the section 2–1401 petition for relief.” In re Marriage of
Breyley, 247 Ill. App. 3d 486, 490-91 (1993).
“The trial court has discretion whether to grant a section 2-1401 petition, and we will not disturb
the court’s judgment absent an abuse of that discretion.” In re Custody of Ayala, 344 Ill. App. 3d
574, 582 (2003).
¶ 16 Section 610.5 of the Illinois Marriage and Dissolution of Marriage Act states as follows:
“Unless by stipulation of the parties or except as provided in Section 603.10 of
this Act, no motion to modify an order allocating parental decision-making
responsibilities, not including parenting time, may be made earlier than 2 years
after its date, unless the court permits it to be made on the basis of affidavits that
there is reason to believe the child’s present environment may endanger seriously
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his or her mental, moral, or physical health or significantly impair the child’s
emotional development. Parenting time may be modified at any time, without a
showing of serious endangerment, upon a showing of changed circumstances that
necessitates modification to serve the best interests of the child.” 750 ILCS
5/610.5 (West 2018).
Nonetheless, relief pursuant to section 2-1401 may be available to Robinson if there is newly
discovered evidence to support the petition. “Grounds for relief under section 2-1401 have
traditionally included *** newly discovered material evidence where the evidence could not
have reasonably been discovered at the time of judgment and is so conclusive it probably would
change the result [citation]).” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (1994).
¶ 17 In this appeal, Robinson argues the trial court erroneously denied J.R. an opportunity to
testify, and disregarded Watson’s confession to punishing J.R. by hitting her with a belt in
violation of a court order that “[n]either parent is to use corporal punishment on the minor in
particular no belt is to be used to spank the minor.” Robinson’s brief states:
“I argued that Judge Kubalanza [(the trial judge who entered the order
regarding corporal punishment)] intended to liberally apply the purpose of the
[Domestic Violence] Act to expand the civil remedies as a way to support the
victim of domestic violence, because she could not discern by the evidence and
arguments presented, who was responsible for abusing J.R. So, she entered an
order prohibiting both parents form hitting J.R. with a belt so as to prevent
physical abuse, at least by that method since both parties argued that J.R.’s bruises
were the result of hitting her (J.R.) with a belt. And both parents admitted to
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occasionally whooping J.R. with a belt as a reasonable redirect. But, it is clear
that someone was excessive in their redirect.”
Robinson argues that Watson’s admission could not have been known at the time of the hearings
on the motion for an order of protection or for a change in allocation of parenting
responsibilities. Robinson also argued that had those admissions been made during “those
hearings, or at least at the first of those two hearings,” their outcome would have been different.
Robinson asserts that Watson’s admission along with the other evidence (photographs of J.R.’s
bruises, the timing of the discovery of those bruises, and Watson’s violation of the “no corporal
punishment” court order while interfering with Robinson’s visitation) would have been “enough
to obtain an order of protection *** and for [him] to obtain majority parenting time.”
¶ 18 In response to the trial court’s finding of a lack of diligence, Robinson asserts on appeal
that he first learned of the existence of section 2-1401 in 2018 a few months before he filed his
petitions for relief from judgment but he still “presented my petitions for relief from voidable
orders within the within the two-year statute of limitations.” Robinson also writes on appeal:
“In terms of the individual claims I presented in my Section 2-1401 petitions, they were made in
each of the individual hearings whose judgments I sought relief from.”
¶ 19 Robinson included a transcript of the hearings on the 2-1401 petitions, held on March 11,
2019, in the appendix to his appellant’s brief. That transcript is not included in the record on
appeal. Nor are the petitions themselves contained in the record. The record contains only the
trial court’s written order quoted above.
¶ 20 In the prior appeal we admonished:
“This deficiency [in appellant’s brief] is compounded in this appeal by the
fact that plaintiff failed to provide a sufficiently complete record on appeal. ‘[T]o
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support a claim of error on appeal the appellant has the burden to present a
sufficiently complete record.’ Webster v. Hartman, 195 Ill. 2d 426, 432 (2001).
‘Where the issue on appeal relates to the conduct of a hearing or proceedings, this
issue is not subject to review absent a report or record of the proceeding. Instead,
absent a record, “it [is] presumed that the order entered by the trial court [is] in
conformity with the law and had a sufficient factual basis.” [Citation.]’ Id.
(quoting Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984)). Where the record lacks
information of the evidence presented at a hearing, ‘it is presumed that the court
heard adequate evidence to support the decision that was rendered unless the
record indicates otherwise. [Citation.]’ (Internal quotations omitted.) Id. at 433
(quoting Skaggs v. Junis, 28 Ill. 2d 199, 201-02 (1963)). In this case, petitioner
failed to include a transcript of the evidence presented at the hearing on the
petition in this case. Plaintiff did procure the portion of the transcript representing
the trial court’s ruling, but that transcript is not included in the record on appeal.
Instead, petitioner included it in the appendix to his appellant’s brief.
‘Attachments to briefs not included in the record are not properly before the
reviewing court and cannot be used to supplement the record.’ Zimmer v.
Melendez, 222 Ill. App. 3d 390, 394-95 (1991). Therefore, the transcript of the
trial court’s oral ruling cannot be considered. See Oruta v. B.E.W. and
Continental, 2016 IL App (1st) 152735, ¶ 32.” In re Marriage of Robinson and
Watson, 2018 IL App (1st) 172195-U, ¶ 20.
¶ 21 Similarly, here, the transcript of the hearings on March 11, 2019 is not included in the
record on appeal and cannot be considered. Kimble v. Illinois State Board of Education, 2014 IL
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App (1st) 123436, ¶ 70 n4 (“this transcript is not contained in the record on appeal and therefore
is not considered on appeal.”); In re Baby Girl F., 402 Ill. App. 3d 127, 129 n1 (2008) (“Two
documents that appear in Krystal’s appendix, attorney Patton’s petition for guardianship and the
transcripts of the June 19, 2006, proceedings, do not appear in the record on appeal. Therefore,
we cannot consider them. [Citation.]”).
¶ 22 Under the circumstances, we are required to find that the trial court’s judgment is correct.
“Our supreme court has long recognized that to support a claim of error,
the appellant has the burden to present a sufficiently complete record. [Citation.]
‘From the very nature of an appeal it is evident that the court of review must have
before it the record to review in order to determine whether there was the error
claimed by the appellant.’ [Citation.] ‘An issue relating to a circuit court’s
factual findings and basis for its legal conclusions obviously cannot be reviewed
absent a report or record of the proceeding.’ [Citation.] Without an adequate
record preserving the claimed error, the court of review must presume the circuit
court’s order had a sufficient factual basis and that it conforms with the law.
[Citation.]
‘[W]hen the record on appeal is incomplete, a reviewing court should
actually “indulge in every reasonable presumption favorable to the judgment from
which the appeal is taken, including that the trial court ruled or acted correctly.” ’
[Citations.] This presumption even operates to the extent that where the record
lacks information of evidence presented at a hearing, a reviewing court will not
assume none was heard and that the court’s order, therefore, was improper.
[Citation.] Instead, ‘ “it [will] presume[ ] that the court heard adequate evidence
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to support the decision that was rendered” unless the record indicates otherwise.’
[Citations.]” Gataric v. Colak, 2016 IL App (1st) 151281, ¶¶ 29-30.
¶ 23 We do not have a transcript of the proceedings in which Watson allegedly made the
admission or a transcript of the hearing on Robinson’s petition based on that alleged admission.
The trial court’s March 11, 2019 order states the court “considered the documentary evidence,
testimony of one witness, and testimony and argument of the parties.” We must presume that
whatever the trial court considered about Watson’s alleged admission during the hearing on the
petition, its finding that Robinson failed to demonstrate a meritorious claim had adequate
evidentiary support.
¶ 24 Moreover, in his brief to this court Robinson stated: “In terms of the individual claims I
presented in my Section 2-1401 petitions, they were made in each of the individual hearings
whose judgments I sought relief from.” The only matter Robinson argues is “not of record” that
would have “precluded rendition of the judgment in the original action” is Watson’s alleged
admission to violating the trial court’s order that neither party use corporal punishment against
J.R. The record contains no “appropriate showing” of that alleged admission. Regardless,
Robinson claims Watson made the admission on July 22, 2016, during the hearing on the motion
for plenary order of protection, and the hearing on the petition to modify the allocation of
parental responsibilities occurred over a year later on August 28 and 29, 2017.
“Relief under section 2-1401 is predicated on the showing of a defense or
claim that would have precluded rendition of the judgment in the original action
as well as diligence in both discovering the defense or claim and presenting the
petition. [Citation.] The petition must be supported by affidavit or other
appropriate showing as to matters not of record and must be filed no later than
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two years after the entry of the contested order or judgment. [Citation.]”
(Emphasis added.) Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 23.
“ ‘[A] party may not avail himself of th[is] remedy *** “unless he shows that through no fault or
negligence of his own, the *** existence of a valid defense was not made to appear to the trial
court. [Citations.] Such a *** petition is not intended to relieve a party from the consequences
of his own mistake or negligence.” [Citation.]’ ” Solomon v. Arlington Park/Washington Park
Race Track Corp., 78 Ill. App. 3d 389, 397 (1979), quoting Esczuk v. Chicago Transit Authority,
39 Ill. 2d 464, 467 (1968). The confession was admittedly available to Robinson in the prior
proceedings. The record does not contain evidence that any failure to present it, if there was
such a failure, was not due to his own fault or negligence.
¶ 25 Concerning Robinson’s diligence or lack thereof, we note that Robinson stated that “[o]n
July 22, 2016, [Watson] fully confessed to knowing there is an order prohibiting J.R.’s parents
from hitting J.R. with the belt, and to intentionally violating that order by whooping J.R. with a
belt on May 27, 2016.” Not only was that information available at the August 2017 hearing on
the motion to modify custody, but Robinson did not file his petition for relief from the
September 1, 2017 judgment on the basis of Watson’s alleged admission (over a year earlier)
until July 17, 2018, almost a year after the judgment was entered and more than two years after
the alleged admission.
¶ 26 “No bright-line rule exists for judging whether a petitioner has acted diligently. Rather,
due diligence is judged by the reasonableness of the petitioner’s conduct under all of the
circumstances.” Illinois Neurospine Institute, P.C. v. Carson, 2017 IL App (1st) 163386, ¶ 27.
Additionally, “[a] pro se litigant is held to the same standards as a litigant represented by an
attorney.” Williams v. Department of Human Services Division of Rehabilitative Services, 2019
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IL App (1st) 181517, ¶ 30. “Although it is true that some decisions have relaxed or even
excused the due diligence requirements, courts have only done so in the extraordinary
circumstances where it is necessary to prevent an unjust entry of default judgment [citation], or
where there is unconscionable conduct by the opposing party that would require that the due
diligence requirement be relaxed [citation].” (Emphasis omitted.) Carson, 2017 IL App (1st)
163386, ¶ 30. Here, despite Robinson’s assertion he only learned of the existence of 2-1401
relief shortly before filing his petition, that is no excuse, and we have no evidence of what the
trial court heard about Robinson’s “conduct under all of the circumstances,” particularly his
conduct, if any, in seeking to obtain relief.
¶ 27 Based on the record before us, we cannot say the trial court abused its discretion in
denying Robinson’s petitions for relief from judgment.
¶ 28 Having reached our conclusion about the required outcome of this case we will note that
in the interest of ensuring a just outcome, we read the transcript of the proceedings on March 11,
2019 included in the appendix to Robinson’s brief. The hearing began with Robinson’s petition
to vacate the July 22, 2016 judgment denying his motion for an order of protection. Robinson
argued that during the hearing on the plenary order of protection, Watson admitted violating the
trial court’s order by disciplining J.R. with a belt. Robinson argued he was seeking relief from
the July 22 judgment because the trial court did not allow J.R. to testify in the hearing on the
plenary order of protection, the court heard other evidence of abuse—specifically J.R.’s
videotaped statement that her mother did punish her by hitting her with a belt—during the
hearing, and allowing the judgment to stand would be unjust.
¶ 29 In response, Watson argued the July 22 order should not be vacated “because everything
was said and done. I have not punished her that way, using corporal punishment, ever since.”
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Robinson asserted that Watson admitted that “she did indeed whoop our daughter on that day in
violation of that court order.” Watson responded “I did not say that. I said that I whooped her in
the past. There’s a difference.” The trial court took Watson’s response as an objection and
sustained that objection.
¶ 30 The hearing then proceeded to Robinson’s argument in support of his petition to vacate
the September 1, 2016 judgment. Robinson argued the judgment “should be vacated because,
again, I was not allowed—I was not able to bring up the abuse situation which could be used,
could be talked about, in the hearing for allocation of parental responsibilities because my
daughter was not allowed to testify to the abuse against her.” Robinson then re-asserted matters
from the hearing on the motion to change custody, including his arguments regarding J.R.’s
behavior and grades, arguments he made at the prior hearing, and the trial court’s rulings
following that hearing. Robinson said the biggest issue is that J.R. did not testify at the hearing.
Watson agreed the trial court should question J.R.
¶ 31 Following arguments, the trial court ruled as follows:
“Sir, motions to vacate are brought before the Court to bring to the Court’s
attention information that was not available at the time that if the Court had been
aware of it that it may have changed the Court’s decision. It’s not an additional
opportunity to try to get a rehearing of the same evidence that *** was available
at the time of the hearing. And being available is different from failing to present
it or it not being admissible at the time based on your lack of knowledge of the
rules of evidence or civil procedure.
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So your argument today with respect to the motions to vacate the 9/1/2017
as well as the July 22, 2016 orders seem to be more appropriate for a motion to
reconsider, which had to be filed within 30 days of the entry of the order.
***
With respect to the respondent’s alleged admission of abuse, that
admission did not take place during the hearing on the petition for order of
protection before me.
I do recall that my ruling was that the law allows for reasonable
redirection of a child and that what occurred I did not feel rose to the level of
abuse. And if you wanted to enforce the order that prohibited any corporal
punishment whatsoever, that there was another avenue available to you, but I
would not grant the order of protection.
What I believe happened was that at the time that Judge Kubalanza
entered the order of protection and the subsequent—or emergency order of
protection, I believe it was, and the subsequent order prohibiting corporal
punishment, that maybe there was a statement to that effect made at that time.
But at the time of the hearing here before me for the subsequent petition for order
of protection—because there were multiple ones, but for the subsequent one that
is at issue here today, there was no statement wherein she admitted, ‘I abused my
daughter.’
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Section 214.01 requires *** that in order to succeed on a 214.01 petition,
the petitioner must set forth specific factual allegations showing the existence of a
meritorious claim, demonstrate due diligence in presenting the claim to the Court,
and act with due diligence in filing the 214.01 petition.
I’m saying you did not argue that. You argued that the Court made an
error and—that the Court made an error in *** its consideration of the evidence
presented, and *** the Court should have ruled differently, but I don’t believe that
you have met your burden with respect to a 214.01. There’s no new evidence
here. I think that all of the evidence that you presented was certainly available to
you at that time. You *** didn’t like the ruling, but that’s not the purpose for a
214.01.
You also filed the motion to vacate the July 22, 2016 motion just shy of
two years. I’m not sure why it wasn’t brought sooner. Therefore, I don’t find that
you were necessarily diligent in bringing the petition or that you may have a
meritorious defense or you may have had one; however, based on the evidence
that was presented at the time, I didn’t find that it warranted the entry of an order
of protection ***. And I felt that the order that was entered at that time, meaning
the parenting schedule, was appropriate, given the evidence that was presented at
the trial.”
¶ 32 Robinson argued to the trial court that he had just learned of section 2-1401. The court
responded: “You were aware of the court orders when they were entered. And so at that time
perhaps you could have done research or hired an attorney or gone to the law library, but you
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learned about it I assume, happenstance and thought, oh, I’ll go file that in my case. But, ***
that’s not how we practice law here. *** So I’m denying on both motions the vacatur.” ”
¶ 33 The trial court proceeded with Watson’s failure to comply with the parenting schedule,
which is not a subject of this appeal. Following a hearing and arguments, the trial court found
that Watson’s failure to comply with the parenting schedule on one date was contumacious and a
reckless disregard for the schedule.
¶ 34 If the transcript of the hearing on March 11, 2019, had been included in the record, our
review would not yield a different result. Based on Robinson’s own statements on appeal we
find the trial court properly found that Robinson failed to present any matter that was not known
to the trial court at the time the judgments were entered or that was not available to Robinson.
¶ 35 We would reach the same result based on Robinson’s arguments at the hearing on the
petitions. “A section 2-1401 petition allows a party to bring before the trial court matters that, if
known at the time of judgment, would have precluded its entry. [Citation.] However,
postjudgment review is not to be used to relitigate matters that were or could have been raised on
direct appeal or to relieve a party of its own mistakes or negligence.” Sunderland ex rel. Poell v.
Portes, 324 Ill. App. 3d 105, 111 (2001). See also In re Marriage of Travios, 218 Ill. App. 3d
1030, 1036 (1991) (finding that evidence that could reasonably have been discovered prior to the
entry of the judgment would require court to affirm dismissal of section 2-1401 petition absent
fraud). Based on the transcript included in the appendix to Robinson’s appellant’s brief, we
would find that Robinson’s petitions merely sought to relitigate matters that had already been
presented to the trial court. This is an improper basis for section 2-1401 relief, and the trial court
properly denied the petitions.
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¶ 36 For all of the foregoing reasons, we hold the trial court did not abuse its discretion in
denying Robinson’s petitions.
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, the circuit court of Cook County is affirmed.
¶ 39 Affirmed.
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