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September 30, 1996


Appeal from the Circuit Court of Cook County. Honorable Samuel C. Maragos, Judge Presiding.

Released for Publication November 18, 1996.

The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Gallagher, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

The circuit court granted respondent Sharon E. Gorman's (Sharon's) petition pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)) to vacate the property settlement agreement (Agreement) that had been incorporated into the judgment of dissolution of marriage (Judgment) for Sharon and petitioner James J. Gorman (James).

On appeal, James asserts that the circuit court erred and contends (1) that the appearance form filed on behalf of Sharon was sufficient to confer personal jurisdiction over Sharon in the dissolution of marriage proceedings; (2) that the Agreement was neither unconscionable nor obtained by coercion on the part of James; and (3) that Sharon failed to exhibit due diligence in presenting grounds for relief advanced in her section 2-1401 petition. In addition, Sharon contends, for the first time on appeal, that the trial court lacked subject matter jurisdiction over the dissolution proceedings because the parties were not separated for two years before the initiation of such proceedings.

We agree with James and, therefore, reverse the circuit court's order vacating the Agreement. We also reject Sharon's assertion that the trial court lacked subject matter jurisdiction.

On November 5, 1977, James married Sharon. On April 2, 1991, James filed his petition for the dissolution of marriage. On April 9, 1991, a prove up was held and the trial court entered a judgment for dissolution of marriage which incorporated the property settlement agreement.

At the prove up on April 9, 1991, only James testified because at that time, Sharon was in California. Prior to the prove up, however, Sharon had signed the necessary papers, i.e., a pro se appearance, the Judgment and the Agreement. James testified that he cohabited with Sharon until December 15, 1988, and their efforts to reconcile had failed. James testified that he and Sharon entered into a property settlement agreement. In response to a question posed by the court, James testified that Sharon has had the advice of an attorney and she met with a lawyer before she signed the agreement. In addition, James' attorney represented to the court that he had spoken to Sharon the previous night "just to make sure there were no problems or any last minute things she needed to know, and she told me she was quite comfortable with the settlement and that she would be divorced today."

The court then entered the Judgment incorporating the Agreement. Pursuant to the Agreement, Sharon received: the California house; $10,000 cash; the right to one-half the net proceeds of James' individual retirement account (IRA) account upon his death or termination of the account; 1990 Mitsubishi Montero automobile; and the right to resume the use of her maiden name, Sharon Gilchrist.

Pursuant to the Agreement, James received the Chicago house. James incurred sole responsibility for paying all the taxes due on the parties' joint 1990 federal and state tax returns, including the taxes due from the sale of the Delavan, Wisconsin, property.

Each party retained his or her own respective IRA accounts, bank accounts, pension and profit sharing plans. The parties had already divided their personal property, and the items in their respective possession were deemed their sole property. Each party would bear sole liability for any and all debts and liabilities that he or she, respectively, had incurred.

More than 19 months later, on November 23, 1992, Sharon filed a motion to vacate the Judgment, asserting that the court lacked personal jurisdiction over her based on the allegedly improper appearance filed on April 9, 1991, at the prove up. While the November 1992 motion to vacate remained pending and undetermined, Sharon filed, on March 29, 1993, a section 2-1401 petition to vacate the Agreement incorporated into the Judgment. Sharon again asserted that the court lacked personal jurisdiction over her and additionallycontended that the Agreement was unconscionable and procured by duress and harassment on the part of James.

On October 31 and November 1, 1994, a hearing was held on Sharon's petition to vacate the Agreement. Both Sharon and James testified at the hearing.

Sharon testified that, when they first married in 1977, she and James rented an apartment on Division Street in Chicago. In 1978, less than one year after marriage, the couple moved to Houston, Texas, due to a company transfer for James. The couple purchased a home in Houston and remained there until James was transferred back to Chicago in November 1981.

Upon their return to Chicago in 1981, the couple bought a condominium at 881 North LaSalle. In 1982, less than one year later, the couple moved to a smaller condominium at 900 North Lake Shore Drive and bought a home in Delavan, Wisconsin, which they went to on a weekly basis. In April or May of 1989, the couple sold the condominium at 900 North Lake Shore Drive and moved to a home at 1849 North Halsted Street, costing $256,000.

In the spring and summer of 1990, the couple began discussing moving to California. Sharon testified that she regretted moving from Chicago because she "wanted very much to wait until [James] was 55 years old to sell anything because [she] knew that [they] could get a reduction in the real estate and [they] wouldn't have to pay those capital gains." At the end of May 1990, the Halsted Street and Delavan properties were placed on the market. In June 1990, Sharon found a house in Irvine, California, and signed a contract for the property in the amount of $412,000, with a move-in date of September 1, 1990. Sharon moved to California in October 1990.

At the end of August 1990, the Delavan property sold for $700,000, providing net proceeds of $470,342.16. From the net proceeds, $104,000 was used for the California house and the remainder was put ...

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