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05/02/96 MARRIAGE KAREN DELK F/K/A KAREN N. HERZOG

May 2, 1996

IN RE MARRIAGE OF KAREN DELK, F/K/A KAREN N. HERZOG, PETITIONER-APPELLANT, GEORGE C. HERZOG, RESPONDENT-APPELLEE.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CHERYL INGRAM, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The petitioner, Karen Delk, appeals from orders of the circuit court of Cook County dismissing her petition for relief pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1992)) and denying her leave to file a response to a Supreme Court Rule 137 (134 Ill. 2d R. 137) petition for sanctions pending against her. For the reasons which follow, we dismiss this appeal in part and affirm in part.

On December 17, 1980, a judgment was entered dissolving the marriage theretofore existing between Delk and the respondent, George C. Herzog. That judgment, amongst other things, provided for the custody and support of the minor children of the parties, maintenance for Delk, and a division of the parties' marital assets. The judgment was thereafter modified in certain financial respects by orders entered on May 5, 1983, and November 21, 1985.

On April 13, 1989, Delk filed a section 2-1401 petition requesting that the court modify its judgment of September 17, 1980, redistribute the marital assets of the parties, and award her maintenance and child support for the period after September 17, 1980, based upon Herzog's actual income and assets. In support of her petition, Delk charged that Herzog intentionally and fraudulently failed to fully disclose his income and assets at the time of the entry of the original judgment on September 17, 1980, and upon the modification of that judgment on May 5, 1983, and November 21, 1985. Delk's original petition specified certain assets and income that Herzog had failed to disclose.

On September 15, 1989, pursuant to Herzog's motion, the trial court struck Delk's petition and granted her leave to replead. Thereafter, Delk filed an amended petition which was stricken on November 28, 1989, a second amended petition which was stricken on September 5, 1990, and a third amended petition. Each successive petition set forth additional allegations of asset and income concealment on the part of Herzog.

On August 14, 1992, Delk filed a motion for leave to file a fourth amended section 2-1401 petition. After being continued from time to time, the motion was denied on January 8, 1993.

On January 11, 1993, immediately prior to the scheduled commencement of a hearing on her pending third amended section 2-1401 petition, Delk moved for, and was granted, a voluntary dismissal pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 1992)).

On September 21, 1993, Delk filed a four-count pleading entitled "Fourth Amended Petition Pursuant to Section 2-1401 of the Code of Civil Procedure" (refiled petition). Counts I, II and III of the refiled petition sought relief pursuant to section 2-1401 and were presumptively filed pursuant to the provisions of section 13-217 of the Code (735 ILCS 5/13-217 (West 1992)) which permits a party to commence a new action within one year after taking a voluntary dismissal. Count IV of the refiled petition was brought pursuant to section 505 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505 (West 1992)) and sought a determination that Herzog owed past due child support and maintenance in the sum of $2,125.24. Count IV sought no relief pursuant to section 2-1401.

Herzog moved to dismiss Delk's refiled petition, and on July 26, 1994, the trial court heard extensive argument on the motion. The transcript of that hearing reveals that the court, among other things, found that Delk failed to exercise reasonable diligence in discovering the matters alleged in her refiled petition and further failed to exercise reasonable diligence in seeking relief pursuant to section 2-1401. The transcript reveals that the trial court dismissed the refiled petition with prejudice.

Failing to agree upon the wording of an order after the July 26 hearing, the attorneys for the parties appeared before the trial court again on August 11, 1994. After entertaining counsels' arguments and indicating the matters that should be included in a draft order, the court directed the attorneys to prepare an order before they left the courtroom and present it to the court for signature. Regrettably, we do not know the exact content of the order of August 11, 1994, as a copy of that order has not been included in the record before us. It appears, however, that Delk filed a motion to reconsider some order dismissing her refiled petition that was entered on August 11, 1994. We say "appears" because, although Delk has failed to include a copy of her motion to reconsider in the record, references to such a motion appear in the trial court's orders of October 7, 1994, December 12, 1994, and February 22, 1995, and in the transcripts of the proceedings held on October 7, 1994, and January 23, 1995.

The transcript of the January 23, 1995, proceedings reveals that the trial court denied Delk's motion to reconsider. During its oral ruling, the trial court clarified the basis for its dismissal order in several respects. Pertinent to our disposition of this matter, the trial court stated:

"And I also want to correct the record because -- when I previously dismissed the fourth amended petition on lack of due diligence, my reference was to -- the lack of due diligence was mainly to the time period for the filing of the first petition ...


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