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In Re Marriage of Ohlson

OPINION FILED JULY 19, 1984.

IN RE MARRIAGE OF LORAYNE RUTH OHLSON, PETITIONER-APPELLEE, AND JOHN EDWARD OHLSON, JR., RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Norman Eiger, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This appeal is brought by respondent, John E. Ohlson, Jr., seeking reversal of a trial court order which vacated portions of a divorce judgment entered eight months earlier. The issue on appeal is whether the trial court erred in entertaining the petitioner's second post-judgment motion and entering an order vacating certain portions of the divorce judgment.

We reverse.

Petitioner, Lorayne Ohlson, filed suit for dissolution of marriage on August 6, 1980. The parties engaged in extensive discovery, after which the matter proceeded to trial. A judgment for dissolution of marriage was entered on March 18, 1982.

Petitioner was given custody of the two minor children and respondent was given visitation rights. Respondent was ordered to pay petitioner $575 per month for maintenance and child support for three years or until petitioner remarried, after which he would pay $383 per month until the children reached the age of majority. Each party was allowed to claim one child as an exemption for Federal tax purposes. There were provisions governing the responsibility for medical expenses, life insurance and education of the minor children.

Petitioner was awarded exclusive possession of the marital residence, which was to be sold at a later date and the proceeds divided one-third to respondent and two-thirds to petitioner. Money in a savings account was divided equally between the parties. Respondent was permitted to retain sole interest in his financial research corporation. Each party retained the marital property in his possession at the time of the judgment. Petitioner was allowed to keep the 1970 Volvo automobile and respondent kept the 1974 Volkswagen.

Respondent was ordered to pay an outstanding dental bill incurred by petitioner in the amount of $895. The issue of attorney fees was reserved by the court for a later determination.

On April 19, 1982, petitioner filed a motion to vacate the judgment. That motion was continued for several months and was heard September 13, 1982. At the hearing, petitioner's attorney of record was not present but one of his associates appeared on behalf of petitioner. Respondent was represented by counsel.

The motion to vacate was based on petitioner's allegation that respondent had willfully concealed from the court facts regarding an inheritance of several thousand dollars from the estate of his grandaunt. After hearing testimony from both parties and the argument of counsel, the trial court denied petitioner's motion to vacate portions of the divorce judgment and entered an order to that effect on September 17, 1982.

On October 18, 1982, within 30 days, petitioner filed a motion entitled "Motion to Reinstate Petition to Vacate Judgment." In that motion, petitioner's attorney of record stated that he had been unavoidably detained at another trial on September 13, 1982, which resulted in the presentation of petitioner's motion by one of his associates who was unfamiliar with the case. The motion alleged that the respondent had not been truthful in repeatedly denying any knowledge of an inheritance of a large sum of money from the estate of his grandaunt. The motion gave a detailed account of efforts by petitioner's attorney which resulted in the discovery that respondent had been the distributee of $33,804.50 from the estate of his grandaunt.

Respondent filed a response to petitioner's motion to reconsider in which he asserted that petitioner's allegations had not been proved and, further, that the issues raised had been previously determined. The motion was set for hearing on November 16, 1982.

At the hearing, counsel for both sides presented arguments. Respondent testified, as did his mother. The mother stated that she was the administrator of the estate of respondent's grandaunt. She stated that respondent had received $38,000 from the estate, but that she had withheld knowledge of the inheritance from respondent during the pendency of his divorce proceedings because she thought it in his best interest to do so.

On November 17, 1982, the trial court entered an order vacating paragraphs 10 through 14 of the divorce judgment. The vacated portion of the judgment is as follows:

"10. The Petitioner shall have exclusive possession of the marital home located at 1516 W. Sherwin ...


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