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December 3, 1996


Appeal from the Circuit Court of Du Page County. Nos. 80--D--2269, 94--D--2447. Honorable Kenneth W. Torluemke, Judge, Presiding.

Released for Publication January 6, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Respondent, Paul R. Himmel (Paul), appeals from the circuit court's order of October 31, 1995, granting the petition of petitioner, Bonnie M. Himmel (Bonnie), to vacate a judgment of dissolution of marriage incorporating the terms of a marital settlement agreement which the court entered on June 1, 1981, in case No. 80--D--2269. See 735 ILCS 5/2--1401 (West 1994). We vacate the circuit court's order and remand.

In support of her amended petition to vacate, Bonnie alleged that respondent had fraudulently concealed his pension benefit; alternatively, petitioner alleged that the settlement was unconscionable. The court found that there was no fraudulent concealment by Paul and that the provisions for relief from final judgments found in section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 1994)) did not apply. Citing section 502 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/502 (West 1994)), the court nevertheless vacated the June 1981 judgment, finding the settlement agreement unconscionable. The court also found there was no just reason to delay enforcement or appeal of its order. See 155 Ill. 2d R. 304(a). A timely appeal ensued. This court has appellate jurisdiction. See In re Marriage of Tzoumas, 187 Ill. App. 3d 723, 728, 135 Ill. Dec. 525, 543 N.E.2d 1093 (1989); In re Marriage of Carlson, 101 Ill. App. 3d 924, 57 Ill. Dec. 325, 428 N.E.2d 1005 (1981); 155 Ill. 2d R. 304(b)(3).

The parties were married to each other twice. The first marriage, which occurred in 1957, was terminated by a judgment of dissolution on June 1, 1981. The marital settlement agreement which was incorporated into that judgment divided the parties' marital and nonmarital assets but did not list Paul's pension. The transcript of that proceeding shows that Bonnie voluntarily chose not to be represented by counsel at the hearing. She stated that she reviewed the agreement, that she had employed counsel to review it, that she understood all the terms of the agreement, that it was fair and equitable, that she was not coerced to sign the agreement, and that she intended to be bound by it. Evidence concerning the parties' assets was presented, but the pension was not mentioned. The court found that the agreement was entered into voluntarily by the parties and that it was not unconscionable, and it entered the final judgment of dissolution.

The parties were remarried to each other on December 10, 1982. On September 20, 1994, Bonnie filed a petition for dissolution of the second marriage in case No. 94--D--2447. Paul, who was now retired, had been continually employed by People's Gas from 1959 to October 1993. The record indicates that he received a lump sum retirement benefit, the estimated value of which in December 1993 was $352,000. The sum was transferred into an investment fund.

On March 21, 1995, Bonnie filed a petition to vacate (petition) the 1981 judgment, alleging that this pension had been fraudulently concealed from her and this fraud tolled the two-year limitations period for vacatur of the judgment. See 735 ILCS 5/2--1401(c) (West 1994)). She also requested that the two cases be consolidated. Paul moved to dismiss the petition, arguing there was no showing of misrepresentation or that the asset was intentionally concealed; that the petition failed to comply with section 2--1401; and that Bonnie failed to challenge or attempt to modify the agreement in a timely manner and was now estopped from raising the claim. Bonnie filed an amended petition to vacate, arguing that, under section 502 of the Marriage Act, the court could find the settlement agreement unconscionable, vacate the judgment, and distribute the assets equitably. Paul argued that section 2--1401 of the Code was controlling, not section 502 of the Marriage Act which permits a court to reject as unconscionable a property settlement agreement made in connection with the dissolution of a marriage; if not found unconscionable, such an agreement would be binding upon the court. 750 ILCS 5/502(b), (c) (West 1994).

At the evidentiary hearing on August 29, 1995, the court consolidated the cases for the purpose of hearing the petition and respondent's motion to strike and dismiss. Bonnie testified she was not represented by counsel at the 1980 dissolution proceeding. She spoke to Paul's attorney, Bruce David, prior to the entry of the judgment. He informed her that he could not represent her. Prior to the hearing in that case, Paul had mentioned that he would eventually be entitled to retirement benefits from People's Gas. Paul had previously told her that, when he retired, if she were married to him, they would receive the retirement benefits. David did not mention that she would receive retirement benefits as a result of the settlement agreement. She did not recall that Paul ever mentioned the monetary value of his pension. She did not know at the time of the settlement whether she was entitled to any funds from his pension and did not question that it was not listed in the settlement agreement. She conceded that she knew of the pension from her conversations with Paul over the years. She remarried Paul in December 1982.

Paul testified that he retired in October 1993 after a heart operation, having worked for People's Gas continuously for 34 years. The lump sum pension distribution took place in December 1993 and was deposited into an investment account the value of which fluctuated with the market. In 1981, he did not believe the pension had a value because it was a "free" pension. He made no contributions to it. In order to collect the pension, he had to qualify by having accumulated 85 points. The points included the age of retirement (age 55) added to the years of service (30 years). He believed he was vested after 10 years, but he would have received nothing in 1982 if he had left the company. He could only receive the pension after reaching age 55 and thought it had no value at the time of the dissolution. He discussed the pension with his attorney and Bonnie at the time of the first dissolution proceeding. He believed the property distribution had been equally divided.

Paul contends that a section 2--1401 petition is the proper vehicle by which to vacate a judgment after 30 days have elapsed from its entry. Subsection 2--1401(c) of the Code states:

"The petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years." 735 ILCS 5/2--1401(c) (West 1994).

A section 2--1401 petition serves to bring to the court that rendered judgment facts not appearing of record which, if known, would have prevented its rendition. In re Marriage of Broday, 256 Ill. App. 3d 699, 705, 195 Ill. Dec. 326, 628 N.E.2d 790 (1993). However, the proceeding is not intended to give the litigant a new opportunity to do that which should have been done in an earlier proceeding or to relieve the litigant of the consequences of her mistake or negligence. Broday, 256 Ill. App. 3d at 705. To prove fraudulent concealment, the petitioner must show by clear and convincing evidence that the respondent intentionally misstated or concealed a material fact which he had a duty to disclose and that she detrimentally relied upon his statement or conduct; for the concealment to be actionable, it must be such that the silent party intended to deceive the other. Broday, 256 Ill. App. 3d at 703. Furthermore, a settlement agreement will be set aside only if the misrepresentation of the assets could not reasonably ...

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