{ "id": 3631953, "name": "In re ESTATE OF MYRON J. NAKAERTS, Deceased (Armand Nakaerts, Ex'r of the Last Will and Testament of Myron J. Nakaerts, Petitioner-Appellant, v. Patricia Nakaerts, Respondent-Appellee)", "name_abbreviation": "Nakaerts v. Nakaerts", "decision_date": "1984-07-20", "docket_number": "No. 3-83-0771", "first_page": "862", "last_page": "866", "citations": [ { "type": "official", "cite": "125 Ill. App. 3d 862" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "427 N.E.2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5500707 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/1074-01" ] }, { "cite": "386 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3308345 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0478-01" ] }, { "cite": "435 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3034972 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0166-01" ] } ], "analysis": { "cardinality": 473, "char_count": 11209, "ocr_confidence": 0.758, "pagerank": { "raw": 5.8428862171448345e-08, "percentile": 0.3628775268365067 }, "sha256": "af9feed90f79045b4b71db83519d54ff0e420470f1cd7d1830836fc1d02448e7", "simhash": "1:e6a8cb46042b8591", "word_count": 1791 }, "last_updated": "2023-07-14T15:49:19.537276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF MYRON J. NAKAERTS, Deceased (Armand Nakaerts, Ex\u2019r of the Last Will and Testament of Myron J. Nakaerts, Petitioner-Appellant, v. Patricia Nakaerts, Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nThe trial court entered a judgment holding that the respondent, Patricia Nakaerts, was entitled to a surviving spouse\u2019s award and allowing her to renounce the will of the deceased, Myron J. Nakaerts. Armand Nakaerts, the executor of Myron\u2019s estate and the petitioner, sought relief from the judgment under section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401), formerly section 72 of the Civil Practice Act. The court denied the executor\u2019s petition. It is from that denial that the executor appeals.\nThe case has a lengthy history involving both dissolution and probate proceedings. Patricia and Myron were married in 1960. Two children were born of the marriage. In 1966 the couple executed a post-nuptial agreement and property settlement. That agreement did not condition its validity on separation or divorce. In essence, each of the parties agreed to own his or her separate property free from any interest of the other, not to renounce any will of the other, and to waive a surviving spouse\u2019s award.\nIn March 1977, Patricia filed for divorce from Myron and for temporary custody and support. The court awarded Patricia temporary custody, support and maintenance. On May 22, 1978, the trial court found grounds for a dissolution and orally entered a judgment of dissolution of marriage. The court continued the cause to hear evidence on questions of child custody, support, property division and maintenance. The court did not enter a written order of dissolution.\nOn September 29, 1978, Myron died. Myron\u2019s will was admitted to probate and the executor appointed. Based on the executor\u2019s sworn evidence, the court entered an order establishing heirship which stated that Patricia\u2019s and Myron\u2019s marriage had ended in divorce. Thereafter, Patricia, acting as surviving spouse, filed a renunciation of the will and a demand for her statutory share of Myron\u2019s estate. The executor filed a motion to strike the renunciation on alternative grounds. The executor\u2019s motion was based on allegations that either the couple\u2019s marriage was dissolved prior to Myron\u2019s death or the couple\u2019s 1966 post-nuptial agreement prohibited Patricia from renouncing Myron\u2019s will.\nIn January 1979, Patricia filed a petition in the probate proceedings for, inter alia, a surviving spouse\u2019s and a minor dependent child\u2019s award. In his answer to Patricia\u2019s petition the executor denied that Patricia was a surviving spouse.\nIn February 1981, the court held a hearing on the executor\u2019s motion to strike Patricia\u2019s renunciation of the will. At that hearing, the executor moved to withdraw as an issue in the case that there was a valid judgment of dissolution. The executor\u2019s stated reason for the motion was that there was no formal judgment of dissolution entered prior to Myron\u2019s death. The court struck the prior dissolution ground in the executor\u2019s motion to strike. Ultimately, the court found that based on the post-nuptial agreement Patricia had released her right to renounce. The court granted the executor\u2019s motion to strike the renunciation and denied Patricia\u2019s petition for a spouse\u2019s award.\nOn May 18, 1981, Patricia filed a notice of appeal from the court\u2019s order. We reversed and remanded the case in In re Estate of Na-kaerts (1982), 106 Ill. App. 3d 166, 435 N.E.2d 791. On appeal neither party argued that Patricia\u2019s and Myron\u2019s marriage may have been dissolved so that Patricia was not a surviving spouse. Insofar as it is relevant to the current appeal, the first appeal held only that the post-nuptial agreement not to claim a surviving spouse award or renounce was abrogated. We held, then, that despite the agreement, Patricia was entitled both to receive a surviving spouse\u2019s allowance and to renounce Myron\u2019s will and receive a \"widow\u2019s intestate share of the estate. The mandate was issued on May 24,1982.\nConcurrent with the probate proceedings Patricia pursued the dissolution proceedings that began before Myron\u2019s death. On March 26, 1981, Patricia filed a motion to substitute the executor as the defendant in the dissolution case. On April 16, 1981, Myron\u2019s representative moved to dismiss the dissolution proceedings alleging that when Myron died prior to the entry of a formal judgment of dissolution, the court lost jurisdiction of the parties and the subject matter.\nOn May 22, 1981, the court issued a memorandum opinion in the dissolution proceedings. In that opinion the court acknowledged that the probate proceedings had proceeded on the assumption that no dissolution had occurred. Nevertheless, the court found that the dissolution action did not abate upon Myron\u2019s death. The court further found that the court\u2019s oral dissolution order of May 22, 1978, could be construed to dissolve the marriage. Additionally, the court found that the post-nuptial agreement did not control Patricia\u2019s and Myron\u2019s rights upon dissolution. The court allowed Patricia\u2019s motion to substitute the executor as party defendant and denied the executor\u2019s motion to dismiss for abatement. On November 12, 1981, the court entered a final order dividing Patricia\u2019s and Myron\u2019s marital property and disposing of all issues remaining in the dissolution. The appellate court was not informed of these post-death dissolution proceedings.\nOn January 21, 1983, following both the final order in the dissolution proceedings and the issuance of the mandate on the appeal in the probate proceedings, the executor filed the petition for post-judgment relief which is the subject of the current appeal. In the petition the executor prayed for the court to vacate any judgment entered pursuant to the appellate decision which allows Patricia to renounce Myron\u2019s will and to claim a surviving spouse\u2019s award. The petition was in two counts.\nIn count I the executor alleged that the dissolution court\u2019s memorandum opinion of May 22, 1981, held that a final judgment of dissolution was entered on May 22, 1978, prior to Myron\u2019s death. The executor further alleged that at the probate hearing on the executor\u2019s petition to strike the renunciation, all parties assumed that Patricia and Myron were married as of Myron\u2019s death.\nAdditionally, the executor alleged that based on the final judgment of the dissolution court, the judgment of the appellate court was based upon a material error of fact: that Patricia was Myron\u2019s surviving spouse. Count I alleged lastly that had the probate or appellate court known of the error, Patricia would have been barred any relief as a surviving spouse.\nIn count II of the petition the executor realleged that in the probate hearing on renunciation all parties assumed that Patricia was Myron\u2019s surviving spouse. The executor further alleged that in the dissolution proceedings, which involved the same subject matter as the probate proceedings, Patricia took the inconsistent position that her marriage to Myron was dissolved prior to Myron\u2019s death. Finally, the executor alleged that based on her inconsistent position in the dissolution proceedings Patricia should be barred and estopped from claiming that she is Myron\u2019s surviving spouse.\nThe parties argued the petition at a hearing. The court made a careful procedural review of the relevant litigation as well as a thorough review of the arguments presented. The court then denied the petition. The executor brought the instant appeal.\nOn appeal the executor presents the sole issue of whether the trial court erred in denying his section 2 \u2014 1401 petition. He presents two arguments. First, he argues that because she sought and received a judgment that her marriage was dissolved at the time of Myron\u2019s death, Patricia is barred under either the doctrine of election of remedies, estoppel, or res judicata from receiving from Myron\u2019s estate as the surviving spouse.\nSecond, he argues that a section 2 \u2014 1401 petition is an appropriate approach to relief from the inconsistent judgments in this case. Specifically, in his second argument the executor contends that the court could have granted his petition despite the appellate court\u2019s decision allowing Patricia a surviving spouse\u2019s award. He also contends that the issue of Patricia\u2019s and Myron\u2019s marital status was not res judicata upon its withdrawal from the probate proceedings. Lastly, the executor contends that the parties\u2019 failure to litigate the marital status in the probate proceedings does not bar 2 \u2014 1401 relief. The executor argues that this is not a case of the executor\u2019s negligence. Rather, the executor argues, he withdrew a defense which he believed not to be meritorious based on his justifiable determination that there was no dissolution.\nTo warrant post-judgment relief under section 2 \u2014 1401 the petitioner must demonstrate by a preponderance of the evidence the existence of a meritorious defense or claim, due diligence in presenting this defense or claim in the original action, and due diligence in filing the petition for relief. The petitioner must also show by a preponderance of the evidence that through no fault or negligence of his own an error of fact or a valid defense or claim was not made to appear to the trial court at the time the challenged judgment order or decree was entered. (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 386 N.E.2d 284.) Whether to grant a section 2 \u2014 1401 petition is within the sound discretion of the trial court. An appellate court will disturb a judgment on a petition only when the trial court has abused its discretion. Beverly Bank v. Pentagon Investment Co. (1981), 100 Ill. App. 3d 1074, 427 N.E.2d 835.\nWe acknowledge, as the trial court did, that denying the petition leaves intact an anomalous situation where Patricia is treated as Myron\u2019s surviving spouse in one cause and as Myron\u2019s former spouse following dissolution of their marriage in another. Nevertheless, we do not find that the trial court abused its discretion in denying the executor\u2019s petition. The trial court considered arguments similar to those which the parties presented before this court. It properly concluded that the executor had not adequately shown due diligence in the original action and an absence of fault.\nThe executor advanced no acceptable reason why he did not originally litigate the matter of dissolution in the probate proceedings. The facts upon which the court would determine Patricia\u2019s and Myron\u2019s marital status at Myron\u2019s death were fully known at the time of the original probate hearing on Patricia\u2019s renunciation. Additionally, if the executor had not withdrawn in the probate court his argument that the parties were divorced prior to Myron\u2019s death, the issue would have been resolved in the original probate action.\nAccordingly, the judgment of the circuit court of Iroquois County is affirmed.\nAffirmed.\nALLOY, P.J., and HEIPLE, J., concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Ronald E. Boyer, of Watseka, for appellant.", "Leonard F. Sacks, of Kankakee, for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF MYRON J. NAKAERTS, Deceased (Armand Nakaerts, Ex\u2019r of the Last Will and Testament of Myron J. Nakaerts, Petitioner-Appellant, v. Patricia Nakaerts, Respondent-Appellee).\nThird District\nNo. 3-83-0771\nOpinion filed July 20, 1984.\nRehearing denied August 22, 1984.\nRonald E. Boyer, of Watseka, for appellant.\nLeonard F. Sacks, of Kankakee, for appellee." }, "file_name": "0862-01", "first_page_order": 884, "last_page_order": 888 }