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In re Marriage of Buck

December 22, 2000

IN RE MARRIAGE OF
CAROLYN B. BUCK,
PETITIONER-APPELLANT,
AND
JOHN A. BUCK II,
RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Quinn

Appeal from the Circuit Court of Cook County Honorable James G. Donegan, Judge Presiding.

On August 23, 1999, petitioner Carolyn Buck filed a verified petition under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) seeking reformation of the marital settlement agreement entered into with respondent John Buck on June 30, 1987. On September 29, 1999, respondent filed a motion to dismiss the petition under sections 2-619(a)(5) and(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(5),(a)(9) (West 1998)). On January 31, 2000, the trial court granted respondent's motion to dismiss the section 2-1401 petition. Petitioner appeals the trial court's order.

We reverse.

Carolyn and John Buck were lawfully married on September 3, 1966, in Chicago, Illinois. On June 30, 1987, the parties entered into a marital settlement agreement (the Agreement). The Agreement was incorporated into the final decree of dissolution of marriage entered by the circuit court on July 2, 1987. In the Agreement, respondent stated that he "assigns and transfers to [petitioner] on and after July 1, 1987 fifty percent of [respondent's] economic interest in all partnership investments [respondent] currently owns." Petitioner then released any claim to right, title and interest in the John Buck Company, a company in which respondent owned 100% of the issued and outstanding stock. Both parties acknowledged in the Agreement that they had "been fully informed of each other's wealth, property, estate and income, have had access to any information required by each of them from the other, and that they [were] fully advised as to their rights therein."

In the summer of 1998, in discovery related to petitioner's third amended petition for enforcement of the marital settlement agreement (the third amended petition), respondent produced a copy of a November 12, 1987, letter agreement between the John Buck Company and the partners of a limited partnership (Buck 123 LP) with ownership interests in a parcel of land known as "Block 123." Block 123 is the block bounded by State Street, Illinois Street, Wabash Avenue and Grand Avenue in the City of Chicago. Petitioner asserted that she inferred from the letter agreement that respondent would have a personal interest in two similar limited partnerships that were to be formed for the acquisition of two adjoining parcels of land known as "Blocks 124 and 125." Petitioner believed that respondent's interest was derived from his share in Buck 123 LP, a partnership in which petitioner had a 50% interest in respondent's portion.

In late August of 1998, petitioner took the deposition of the chief financial officer of the John Buck Company, John O'Donnell. O'Donnell testified that the John Buck Company acquired interests in Blocks 124 and 125 in 1986, at the same time the company acquired its interest in Block 123. In respondent's deposition, taken the next day, he stated that the purpose of the letter dated November 12, 1987, was to form two partnerships for the acquisition of Blocks 124 and 125. Respondent stated that he did not know if those partnerships were ever actually formed. Respondent testified that Blocks 124 and 125 had been purchased in 1997 and that he could not recall when the negotiations for those properties began.

Petitioner then filed a second amendment to the third amended petition, which added count VII. Count VII was based on the premise that respondent held a personal interest in Blocks 124 and 125, to which petitioner was entitled to a 50% share.

On June 14, 1999, the parties were before the circuit court for a Rule 218 pretrial conference. During that conference, counsel for respondent stated that petitioner could have no interest in Blocks 124 and 125 because respondent's interest in those properties was held through the John Buck Company and petitioner had waived all claims to any interest in that company in the Agreement. Petitioner alleges that this was the first notice she had that respondent's interest in Blocks 124 and 125 was held by the John Buck Company and not respondent personally.

On June 29, 1999, petitioner ordered a title search on Blocks 124 and 125, which disclosed to petitioner the existence of a contract dated December 10, 1986, between a general partnership known as MKDG/Buck 124 Partnership and the American Medical Association (the AMA), for the purchase of Block 124. The title search also revealed a similar contract between the AMA and a general partnership known as MKDG/Buck 125 Partnership, for the purchase of Block 125. Each of those documents was signed for the purchasing general partnership by respondent, personally, on behalf of the John Buck Company. Petitioner alleges that this was the first notice she had that respondent had testified falsely as to when he had acquired an interest in Blocks 124 and 125.

On July 7, 1999, petitioner amended count VII of the third amended petition. In count VII as amended, petitioner alleged that she was entitled to 50% of respondent's economic interest in the partnership that held interest in Block 123 and, through her interest in that partnership, she also acquired an interest in Blocks 124 and 125. Petitioner further alleged that respondent owed her a fiduciary duty in the management of their shared economic interests.

On August 23, 1999, petitioner filed a verified petition for modification of the marital settlement agreement, pursuant to section 2- 1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998))(the section 2-1401 petition). Petitioner alleged that the Agreement assigned 50% of respondent's economic interests in all respondent's real estate partnership investments to her. Petitioner emphasized that the Agreement listed 22 real estate partnerships by name, but omitted any reference to the partnerships which held an interest in the parcels of land known as Blocks 124 and 125. Respondent's interest in Blocks 124 and 125 was held through his corporation, the John Buck Company, in which respondent owned 100% of the shares. Petitioner alleged that she relied on respondent's representation that those shares had only minimal value and that respondent concealed the fact that the John Buck Company held interests in Blocks 124 and 125. Petitioner asserts that she detrimentally relied on these false representations when she waived and released any claim to the John Buck Company. Thus, petitioner asked the trial court to reform the Agreement so she would be entitled to 50% of respondent's interest in any real estate partnership holding an interest in Blocks 124 and 125.

On September 29, 1999, respondent filed a motion to dismiss the section 2-1401 petition under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5),(a)(9) (West 1998)). Respondent also filed a motion to dismiss the amended version of count VII of the third amended petition. On January 31, 2000, the trial court denied respondent's motion to dismiss count VII of the third amended petition. However, on that same date, the trial court issued an order granting respondent's motion to dismiss the section 2-1401 petition. It is from the latter order that petitioner has sought to appeal.

For the reasons that follow, we reverse the trial court's order dismissing the section 2-1401 petition.

Although a section 2-1401 petition is filed in the same action in which the judgment it seeks to vacate was entered, it is not a continuation thereof. 735 ILCS 5/2-1401(b) (West 1998). The petition is in fact a new action and is subject to the usual rules of civil practice. See Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 279, 433 N.E.2d 253 (1982). A section 2-1401 petitioner bears the burden to allege and prove facts sufficient to justify relief. In re Marriage of Travlos, 218 Ill. App. 3d 1030, 1035, 578 N.E.2d 1267 (1991). Where a section 2-1401 petition fails to state a cause of action or shows on its face that the petitioner is not entitled to relief, the petition is subject to a motion to dismiss. See ...


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