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September 25, 1995



Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Braden delivered the opinion of the court: Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: Braden

JUSTICE BRADEN delivered the opinion of the court:

On March 19, 1990, a judgment for dissolution of marriage was entered terminating the marriage of petitioner, Jesse M. Palacios, and respondent, Constance Palacios. Subsequent to the divorce, respondent learned that petitioner concealed $5.38 million which he had won in the Illinois State Lottery on January 6, 1990. Respondent then filed a motion to vacate the judgment, asserting that the lottery winnings were marital property and, had she known of the extent of petitioner's assets, she would never have consented to the settlement. Respondent filed a motion for summary judgment on her petition to vacate, seeking a finding that the lottery proceeds were marital property. Petitioner filed a motion to strike the summary judgment motion, supported with a counteraffidavit. The trial court granted respondent's motion, vacating the dissolution judgment in all respects except for the dissolution of the marriage itself.

Petitioner appeals, contending that (1) respondent's summary judgment motion was improperly denied; (2) he was erroneously denied the opportunity to file an answer to respondent's summary judgment motion; (3) the trial court abused its discretion in granting respondent's motion; (4) the lottery money is non-marital property as it was obtained subsequent to the judgment for separate maintenance; (5) the lottery winnings constituted non-marital property because they were obtained subsequent to the judgment to a legal separation; and (6) the trial court erroneously found that the separate maintenance judgment was vitiated by the parties' later conduct.

We affirm and remand.

The following facts are pertinent. Petitioner and respondent were married on February 2, 1973, and lived together for approximately 3 years. On May 25, 1976, respondent fled the marital domicile as a result of physical abuse she suffered at the hands of petitioner. On August 9, 1977, the trial court entered a judgment for separate maintenance requiring petitioner to relinquish all of respondent's personal effects, all of the children's clothing, and furniture. It also provided for the care and custody of the children. There was neither an inclusion of a final disposition of property rights in this agreement nor was there a resolution of further issues indicative of marital termination. There was no waiver by either party with respect to future property rights. In 1979 or 1980, subsequent to the entry of the order, respondent and petitioner resumed the marital relationship which continued until 1987 or 1988.

In March 1990, the trial court issued a judgment for the dissolution of marriage containing details concerning: the allocation of marital debt, responsibility for the children's medical expenses, child support and property distribution. Unbeknownst to respondent, petitioner won $5.38 million in the Illinois State Lottery on January6, 1990 (he learned he won on January 8th and filed for divorce on the 10th). He presently receives nearly $300,000 per year for the next 20 years in proceeds. Although petitioner won the lottery in January 1990, he did not claim his prize until October of that year, well after he had obtained a divorce from respondent. When judgment was entered dissolving the marriage, the lottery ticket remained secured in a safe deposit box in a Downers Grove bank where it had been since petitioner learned it was the winning ticket. Respondent and her two children with petitioner learned of petitioner's good fortune three days before he and his girlfriend appeared on television to claim the prize. Petitioner admits he never told respondent or his children that he won the lottery.

Shortly before he and his girlfriend, Arlene Herbst, publicly claimed the lottery winnings, petitioner entered into a partnership agreement with Herbst, wherein he agreed to share 10% of the earnings with her. This agreement was made retroactive to December 1, 1989, in an attempt to show that the lottery winnings were joint property. Herbst contrarily admits that she told her son that petitioner won the lottery, never indicating that she was entitled to any portion of the proceeds. Upon claiming the prize in October 1990, petitioner and Herbst represented to lottery officials that they recently located the ticket, although petitioner's deposition reflects that he learned that he held the winning ticket on January 8, 1990, two days after the drawing. In her affidavit, Arlene Herbst also admits that she and petitioner lied to lottery officials and the media about their late discovery of the ticket.

After being apprised of petitioner's lottery millions, respondent filed a motion to vacate the judgment for dissolution of marriage and moved for summary judgment thereon. In support, several affidavits were filed. Respondent's affidavit stated that although she and petitioner maintained separate residences, they engaged in sexual relations from 1980 to 1987. Renee Palacios, the youngest daughter of the parties, stated that her father stayed at their home four or five nights per week during 1980 to 1988. He spent every holiday at their house and slept in the same bed with respondent. Petitioner also had his telephone calls forwarded to their house. The eldest daughter, Rachel Palacios, confirmed her sister's statements, and added that her father vacationed with them and had a key to their home. Respondent and her two daughters also unequivocally affirm that petitioner never told them he won the lottery.

Petitioner filed a motion to strike respondent's motion for summary judgment with a supporting counteraffidavit. In the counteraffidavit, petitioner denies misrepresenting the extent of his assets to respondent and resuming the marital relationship with her. These assertions directly contradict his prior deposition testimony which evinces his deliberate concealment of his lottery winnings and his continuing his sexual relationship with respondent. In his deposition, petitioner admits to having sexual relations with respondent, taking the family on a vacation, spending holidays with the family, and moving his personal belongings into respondent's home. He also admits that he lied about the date he discovered he had the winning ticket, stating that he learned he had won on January 8, 1990, two days after the drawing. Other than the general denial in the counteraffidavit which contradicted his earlier statement, petitioner offers no evidence rebutting respondent's affidavits supporting her claim that he deliberately concealed his winnings until after they were divorced.

After considering respondent's motion for summary judgment, her supporting documents and the opposing documents of petitioner, the trial court granted the motion, vacating the judgment for dissolution of marriage and finding that the lottery ticket was marital property. The court also found that, subsequent to the separate maintenance judgment of August 9, 1977, the parties resumed their marital relationship, thus abrogating the judgment. Petitioner appeals.

Petitioner initially opines that respondent was not entitled to relief under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1992)), as she failed to demonstrate the requisite ...

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