APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
Petitioner-Appellee, and JOSEPH ANTHONY YAKUBEC,
507 N.E.2d 117, 154 Ill. App. 3d 540, 107 Ill. Dec. 453 1987.IL.386
Appeal from the Circuit Court of Cook County; the Hon. Barbara Disko, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
This consolidated appeal arises out of post-decree proceedings brought by the petitioner, Manuela Wanda Yakubec, against the respondent, Joseph Anthony Yakubec, for payment of arrearages in child support and maintenance. The trial court denied Joseph's petition to vacate the divorce decree of the parties and entered judgment against him in the amount of $30,480. Further, after a rule to show cause was returned unsatisfied, the court ordered that Joseph be held in contempt of court and sentenced him to 60 days' incarceration. Joseph appeals from both orders, contending that (1) the trial court erred in dismissing his motion to vacate the divorce decree and affirmative defenses to the rule to show cause; (2) the trial court erred when it found no laches on the part of Manuela where she failed to assert her claim for past-due child support for more than 15 years; (3) Manuela was not the proper party in interest to bring the post-decree proceedings; and (4) he was entitled to an evidentiary hearing prior to being found in contempt of court and sentenced to a period of incarceration.
A decree for divorce was entered between the parties on February 20, 1969, which required Joseph to pay $40 in child support and $15 as maintenance per week. Joseph filed no responsive pleadings in the divorce action. The minor child of the parties, Joseph, was born on July 9, 1966. On May 2, 1984, Manuela filed a petition for rule to show cause alleging that Joseph was $31,000 in arrears in child-support payments and $7,230 in arrears in maintenance payments. In response, Joseph filed a petition to vacate and to void the divorce decree pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401). Joseph also filed a response to the petition for rule to show cause. In both the petition and response, Joseph alleged that Manuela had fraudulently concealed the fact that the minor child was not his son and that she failed to comply with the statutory requirements for revival of judgments. (Ill. Rev. Stat. 1983, ch. 110, par. 12-108.) The trial court dismissed the petition to vacate the divorce decree and struck those paragraphs of the response to the rule to show cause which alleged fraud, lack of parentage, and failure to comply with the statute regarding revival of judgments.
At the hearing on the rule to show cause, Joseph testified that he was currently employed as a bindery operator and his rate of pay was $13 per hour. He had built a home for himself and held title in his name. He stated that he paid child support for approximately 13 weeks following the entry of the judgment for divorce. Also, he had bought Manuela an automobile for approximately $1,300. He had not sought a modification of the child-support or maintenance order and stopped making payments since Manuela had told him that she did not want him to see the child.
Manuela testified that she had remarried on June 3, 1978. She stated that Joseph had never paid her maintenance but had paid her child support for approximately 13 weeks. When she would ask Joseph for the money, he would refuse to pay. In 1984 she told Joseph that she was going to initiate legal action to enforce the divorce decree. He responded that he would not pay any amounts because he did not believe he was the father of the child.
The trial court entered judgment against Joseph for arrearages due Manuela in the amounts of $30,480 for child support and $5,830 for maintenance and ordered that a rule to show cause be issued returnable instanter. Thereafter, the court found the rule to be returned unsatisfied and found Joseph guilty of contempt of court and sentenced him to 60 days' incarceration. I
Joseph first contends that the trial court erred in dismissing his section 2-1401 petition to vacate and affirmative defense to the rule to show cause. Both the petition and the affirmative defense alleged fraud on the part of Manuela based on the fact that the minor child was not Joseph's child and that Manuela failed to comply with the statute regarding revival of judgments. Ill. Rev. Stat. 1983, ch. 110, par. 12-108.
In considering Joseph's section 2 -- 1401 petition, the law is settled that a petitioner must show due diligence in seeking to vacate the judgment or final order or the petition will be denied. (Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015, 410 N.E.2d 1166; Martinez v. Valdez (1973), 9 Ill. App. 3d 895, 293 N.E.2d 443.) Judgments are not to be set aside simply because the party adversely affected by such judgment comes into court and asserts that the judgment was premised on false facts and that a good defense exists. (Bennett v. Gollant (1970), 127 Ill. App. 2d 224, 262 N.E.2d 34.) Further, a petition to vacate is addressed to the ...