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08/25/88 In Re Marriage of Charles Wise Fricke

August 25, 1988

IN RE MARRIAGE OF CHARLES WISE FRICKE, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

and DEBRA JUNE FRICKE, Respondent-Appellant

528 N.E.2d 370, 174 Ill. App. 3d 191, 123 Ill. Dec. 825 1988.IL.1307

Appeal from the Circuit Court of Logan County; the Hon. Gerald G. Dehner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Respondent Debra June Fricke appeals from an order entered on March 11, 1988, by the circuit court of Logan County which dismissed her "motion" filed pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). The "motion" sought relief from a portion of the decree dissolving respondent's marriage to petitioner Charles Wise Fricke. We reverse and remand.

On May 12, 1987, the trial court entered the aforesaid order dissolving the marriage of the parties. Petitioner was a funeral home director, and respondent, a manager and owner of a monument company. The court's order further incorporated the terms and conditions of a marital separation agreement entered into between the parties. One of the provisions contained in the agreement recited:

"For a period of five years after the execution of this Agreement, Husband shall exercise his best efforts to utilize Timeless Monument in the operation of his business, including, but not limited toreferral of business to Timeless Monument and cooperation with Timeless Monument as Wife may, from time to time, request from Husband regarding Timeless Monument and business opportunities sought by Timeless Monument."

Both petitioner and respondent also waived any right to maintenance from the other in the agreement.

On October 21, 1987, respondent filed the instant "motion." Section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) provides in pertinent part as follows:

"(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. . . .

(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record." Ill. Rev. Stat. 1985, ch. 110, par. 2-1401.

In her "motion," respondent said the judgment of dissolution had been procured through fraud. In her "motion" she stated, among other things: (1) at the time petitioner entered into the separation agreement incorporated by reference in the judgment, he had no intention of abiding by the condition in the agreement that he use his best efforts to utilize respondent's monument company in the operation of his business; (2) petitioner had made no efforts to utilize, or refer business to, her company since the date judgment was entered on May 12, 1987; (3) on October 1, 1987, petitioner told her he had no intentions of referring business to her (her affidavit in support of her "motion" further revealed petitioner told respondent he was, in fact, referring business to her other business competitors); (4) plaintiff had " never intended to do as he [had] agreed" to do in the separation agreement, in furtherance of his fraudulent scheme to injure respondent (emphasis added); (5) respondent was not aware of petitioner's fraudulent intentions and would not have agreed to the terms of the settlement agreement, ...


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