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King v. King

OPINION FILED JANUARY 29, 1985.

LLOYD EDWARD KING, JR., PETITIONER-APPELLANT AND CROSS-APPELLEE,

v.

TERRE GAIL KING, RESPONDENT-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Alexander County; the Hon. Stephen L. Spomer, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 1, 1985.

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 1 1/2 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. That the parties' attorneys at the time of the hearing of this matter on or about the 9th day of April 1980 announced to the court that an alleged oral `settlement' had been reached and announced the alleged terms thereof; that no agreement had been reached or was announced with respect to the petitioner's cause of action; it was not mentioned on the record as incorporated into the Decree of Dissolution; that said asset constitutes such a substantial portion of the marital estate that the alleged settlement and decree failing to include any reference to said asset or dispose of same makes the alleged agreement null and void, unfair, unconscionable, incomplete, contrary to the policy to [sic] the state of Illinois and/or such concealment constitutes a fraud upon this court and

as a result thereof, the alleged agreement and/or decree were never final. In the alternative, the facts stated above are sufficient to justify the re-opening of a judgment under the law of the state of Illinois."

The trial court dismissed count II of the amended post-trial motion.

On August 2, 1983, a hearing on the amended post-trial motion was had. The respondent testified that during the negotiations concerning the division of property, which were conducted on the morning of the hearing held on April 2, 1980, she did not make an agreement concerning the lawsuit. She said that her lawyer told her at that time "that if I wanted to pursue it, why didn't I get another lawyer after this and pursue it. That there wasn't anything he could do for me and I asked him why he, why didn't he tell me that all along. Because, it came as a total shock." She said that she and her attorney

"were arguing very violently because I told him that I felt like he was giving me a raw deal. That all of a sudden, you know, it seemed like three [against her, since the petitioner and his attorney likewise maintained that the personal injury lawsuit was not marital property]. If I couldn't depen [sic] on my own lawyer, who could I depend on and I asked him why he didn't tell me all of this before were [sic] to go into court, when I expected this to be part of the divorce."

Asked whether she was "advised to get another lawyer and pursue it after the divorce," she answered, "And that if I didn't go ahead with the divorce and left it up to the Judge, that I would be paying possibly half of the bills from the lawsuit [including attorney's fees of about $3,700, or possibly as much as $4,500, and money borrowed to cover expenses incurred during the approximately ten months the petitioner did not work after the collision] and I wasn't making but minimum wage at that time." She said that she first learned on April 2, 1980, that she was not a party to the personal injury lawsuit. On cross-examination she testified that her lawyer had told her that

"as far as he was concerned it wasn't marital property. And, if I wanted to pursue it I could get another lawyer later and we weren't going to put this in the dicorce [sic]. I was against it, I felt like it should have been in the divorce, but I was fighting with my own lawyer, I was fighting with you [counsel for petitioner], and I was fighting with my husband and I felt like if my lawyer and I couldn't agree that there was no point in going on with that situation."

She stated further that she "agreed to get the divorce over. I did not agree that the lawsuit was settled at that time." On the matter of the respondent's understanding this colloquy took place during cross-examination of her:

"Q. Isn't it true that Mr. Collina [counsel for respondent during the dissolution proceedings] told you on that last date when you obtained the dissolution that if you wanted part of his cause of action or any part of your settlement, you would not be able to obtain the dissolution on that date, that you would have to wait until he received part of that?

A. No sir, he never told me that.

Q. Well, wasn't it your understanding on that last date you would not receive nay [sic] part of his settlement after ...


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