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07/06/88 In Re Marriage of Thomas R. Vigil

July 6, 1988

IN RE MARRIAGE OF THOMAS R. VIGIL, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

and CLAUDIA A. VIGIL, a/k/a Claudia Dancing,

Respondent (The Department of Public Aid,

Respondent-Appellee)

526 N.E.2d 625, 172 Ill. App. 3d 405, 122 Ill. Dec. 366 1988.IL.1062

Appeal from the Circuit Court of Cook County; the Hon. Barbara Disko, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Petitioner, Thomas R. Vigil, appeals from an order of the trial court dismissing his section 2-1401 of the Code of Civil Procedure petition (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) to vacate an order entered subsequent to a judgment of dissolution of marriage which required him to tender child support payments directly to respondent, Illinois Department of Public Aid . We affirm.

On August 7, 1974, a judgment for dissolution of marriage was entered terminating Thomas' marriage to Claudia Vigil. At the time of their divorce, the Vigils' four children were minors. Pursuant to the terms of the judgment, Thomas was to pay $600 per month as child support.

Shortly after the divorce, Thomas was involved in an automobile accident and took a leave of absence from his employment. During this leave of absence, Thomas became in arrears regarding his child support obligation. Thomas and Claudia's four children then began to receive assistance from the IDPA. At that time, the IDPA filed a petition requesting that the trial court enter an order directing Thomas to make all future child support payments to the IDPA for as long as his children continue to receive public aid. According to the documents that were filed, a copy of the notice of motion and the petition were mailed to Thomas and to Claudia. On May 19, 1976, the trial court entered an order granting the relief requested by the IDPA.

Thereafter, in December 1985, Thomas filed a section 2 -- 1401 petition supported by affidavits to vacate the May 19, 1976, order of the trial court. In his petition, Thomas alleged that the May 19 order was entered without notice to him and therefore void. Thomas further alleged that he did not receive notice of the order until early 1985 when his attorney examined the court file in the Vigils' divorce case. Following a hearing, the petition was dismissed for lack of diligence. The trial court stated:

"[The] court read the petition to vacate which you filed on behalf of your client and all the attachments to it and at this time the court will deny your petition to vacate. The court does not believe that there has been diligence on your client's behalf and the court does not believe that there is any harm being done to your client by the order being entered. . . . If your client paid Mrs. Vigil money, then he is certainly entitled to all credit for that money and he would certainly not owe the Department of Public Aid for any money for the period of time he paid her money, . . . so I think you need to ...


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