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  "name": "In re MARRIAGE OF EVANGELIA TRAVLOS, Petitioner-Appellee, and DIONISIOS TRAVLOS, Respondent-Appellant",
  "name_abbreviation": "In re Marriage of Travlos",
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    "judges": [
      "JIGANTI, P.J., and JOHNSON, J., concur."
    ],
    "parties": [
      "In re MARRIAGE OF EVANGELIA TRAVLOS, Petitioner-Appellee, and DIONISIOS TRAVLOS, Respondent-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE LINN\ndelivered the opinion of the court:\nThe circuit court of Cook County entered a judgment dissolving the marriage of petitioner, Evangelia Travlos, and respondent, Dioni-sios Travlos. Included in the judgment was a distribution of the marital assets.\nDionisios subsequently filed a petition for relief from judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401.) He petitioned the trial court to vacate the judgment and redistribute the marital assets. The trial court dismissed the petition. Dionisios then filed a motion to vacate the dismissal; the trial court denied the motion. Dionisios appeals from both orders, contending that the trial court exceeded its discretion.\nWe affirm the orders of the trial court.\nBackground\nA\nThe record contains the following pertinent facts. On October 22, 1985, Evangelia filed an amended petition for dissolution of marriage. In the petition, after describing their marital property, Evangelia alleged that she had \u201cno assets, income, or property.\u201d\nOn October 28, 1987, Evangelia filed a response to Dionisios\u2019 request for production of documents. She stated in pertinent part:\n\u201c1. Petitioner [Evangelia] has had no legal, equitable or beneficial interest [in] any bank accounts for the period of January 1, 1984 to present, except as Guardian of Nick Vasilatos in that capacity held a checking and a money market account held at the First National Bank of Lincolnwood from approximately December 1985 until his demise in March 1987. No documents pertaining to these accounts are in possession of [Evangelia], being retained in the possession of [her probate attorney].\u201d\nOn November 10, 1987, Evangelia filed an affidavit in which she stated as follows:\n\u201cII. *** Petitioner [Evangelia] further states that she personally owns no real estate in any foreign country but had acquired an interest in vacant farm land belonging to her uncle [Nicholas Vasilatos] and she believes that a Greek Court divested her of that interest. Matters pertaining to said proceeding both in the Probate Court of Cook County and in a Greek Court were documented by papers now in the possession of her probate attorney ***.\n[III]E. Affiant [Evangelia] had personal control over two bank accounts at the First National Bank of Lincolnwood, a checking account and a Money Market Account in her name and that of Nicholas Vasilatos, her uncle, a disabled person. These accounts became the subject matter of a Probate proceeding handled by [Evangelia\u2019s probate attorney] and he was given all of the documents in her possession and he retains same to this date.\u201d\nOn November 16, 1987, Evangelia testified in a deposition as follows:\n\u201cQ. Are there any other accounts that you have any money in at the present time?\nA. No.\nQ. Any accounts in Greece?\nA. No.\nQ. Is that property now yours?\nA. No, they took it away from me.\nQ. When did they take it away?\nA. I don\u2019t know exactly.\nQ. Were you in Greece at the time they took it away?\nA. I was, but I didn\u2019t know, I found out later.\nQ. When you were in Greece it didn\u2019t happen that they took this property away from you?\nA. No. They did, they have it, but I didn\u2019t know at the time\nQ. Who was the person who claimed the right to the property?\nA. His nephew.\nQ. So as you know, this property was taken away from you and now belongs to the nephew?\nA. Yes.\u201d\nOn April 11, 1988, Evangelia testified during her direct examination at trial as follows. Dionisios owned property in Greece prior to their marriage, but they built a house on the property subsequent to the marriage. Further, they spent between $2,000 and $3,000 annually, for 16 or 17 years, to maintain the property. The fair market value of the property with the house was between $40,000 and $50,000. She last saw this property in 1980. Evangelia\u2019s attorney asked her whether she or Dionisios owned any other real estate in Greece. She testified that Dionisios owned farmland in Greece that he acquired prior to the marriage.\nDuring cross-examination by Dionisios\u2019 counsel, Evangelia provided additional testimony on Dionisios\u2019 land in Greece. Dionisios\u2019 counsel questioned Evangelia on how Dionisios acquired the land, and the extent of the furnishings of the house in Greece. Dionisios\u2019 counsel did not question Evangelia on her interest in the land acquired from her uncle.\nOn October 27, 1988, the trial court entered judgment dissolving the marriage of Evangelia and Dionisios. The judgment also allocated their assets. One such provision is as follows:\n\u201cV. That each of the parties shall be awarded their [sic] respective properties located in Greece, free and clear of any interest that the other may have therein.\u201d\nB\nOn November 23, 1988, Dionisios filed his first post-trial motion. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1203.) Dionisios raised therein various issues pertaining to the distribution of marital property. On January 26,1989, the trial court denied the motion.\nOn February 7, 1989, Dionisios filed a second post-trial motion \u2014 a petition to vacate the judgment pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401). Dionisios alleged as follows. He learned facts that would have changed the judgment had they been available. Dionisios learned of these facts from a pleading in the estate proceeding of Evangelia\u2019s uncle. Further, Evangelia knew of these facts long before the trial court entered judgment, \u201cbut she misled [the trial court] by either omitting to reveal them affirmatively or by deliberately stating falsehoods when asked about them specifically.\u201d\nDionisios accused Evangelia of individually owning land in Greece. On August 26, 1985, Evangelia contracted with her uncle to buy, based on Greek property law, the \u201cnaked title\u201d to a parcel of land in Greece. In May 1986, Evangelia contracted to buy the \u201cuse or usu-fruct\u201d of the same property.\nDionisios noted that litigation ensued in Greece over the right to possess the above-mentioned property. He alleged that Evangelia prevailed in the Greek litigation approximately one year prior to the entry of judgment. Dionisios charged that Evangelia \u201clied on a number of occasions *** and falsely stated that she had no right to the possession or title to that property.\u201d As an example, Dionisios specifically referred to Evangelia\u2019s November 16, 1987, deposition, where she stated that the land was taken away from her. Dionisios alleged that at that deposition, Evangelia \u201cknew that she had prevailed in the litigation in Greece and was the legal owner of the full title to that property.\u201d Further, despite her victory in that litigation, Evangelia \u201chas continually maintained the contrary throughout these proceedings.\u201d\nThe petition also alleged that on September 2, 1985, Evangelia\u2019s uncle devised to her various parcels of farmland in Greece. The petition alleged that Evangelia \u201comitted to inform the [trial court] of her ownership of these parcels of real estate.\u201d\nDionisios also accused Evangelia of having \u201ccontrol and access to a secret account at an unknown financial institution in Athens, Greece, having a current balance of *** approximately $23,000.00.\u201d Dionisios alleged that Evangelia concealed the existence and her use of this fund. On April 17, 1990, the trial court granted Evangelia\u2019s motion to strike and dismissed Dionisios\u2019 section 2 \u2014 1401 petition to vacate the judgment.\nOn May 9, 1989, Dionisios filed a third post-trial motion. In his \u201cEmergency Motion,\u201d he asked the trial court to vacate the dismissal of his section 2 \u2014 1401 petition. Dionisios essentially repeated the allegations in his section 2 \u2014 1401 petition. He attached a certified English translation of a decision of a Greek appellate court, which apparently reversed a lower court and ruled in Evangelia\u2019s favor. The appeal was decided on November 24, 1987, and, according to its procedure, entered on December 8, 1987. Dionisios specifically charged that Evangelia \u201cnever revealed to [the trial court] or corrected her deposition testimony that the Greek property had been ruled to be hers.\u201d On May 11, 1989, the trial court denied Dionisios\u2019 emergency motion. Dionisios appeals from the trial court\u2019s dismissal of his section 2\u2014 1401 petition to vacate the judgment, and from the trial court's denial of his emergency motion to vacate the dismissal.\nOpinion\nThe legal principles that pertain to a petition for relief from judgment are quite settled. The cases are legion. A trial court cannot review its own judgment after the expiration of 30 days from the date of entry. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294, 296.) However, section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), provides a procedure for obtaining relief from final orders and judgments after 30 days from the date of entry. Plavec v. Plavec (1961), 30 Ill. App. 2d 345, 348, 174 N.E.2d 578, 579.\nThe statute substitutes a simple remedy for the relief previously available through various common law writs. The function of a section 2 \u2014 1401 petition is to bring before the court that rendered a judgment facts not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition. (Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296, 272 N.E.2d 805, 807-08.) Although courts apply the provision with the aim of achieving justice, section 2 \u2014 1401 was never intended to give a litigant a new opportunity to do that which should have been done in an earlier proceeding. The provision was never intended to relieve a litigant of the consequences of his mistake or negligence. Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 497, 504 N.E.2d 893, 895.\nA section 2 \u2014 1401 proceeding is a new action separate and apart from the proceeding in which the judgment complained of was entered. A section 2 \u2014 1401 petitioner bears the burden to allege and prove facts sufficient to justify relief. (Petrauskas, 133 Ill. App. 2d at 296, 272 N.E.2d at 808.) Where the 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. Ostendorf v. Internartional Harvester Co. (1982), 89 Ill. 2d 273, 279-80, 433 N.E.2d 253, 256.\nBased on the foregoing, a section 2 \u2014 1401 petitioner must allege and prove: (1) that if the ground for relief had been known at the time judgment was entered, it would have prevented the entry of judgment against him; and (2) that failure to discover and present the ground for relief was not the result of his own lack of diligence. (Ostendorf, 89 Ill. 2d at 283, 433 N.E.2d at 257; Mutual National Bank v. Kedzierski (1968), 92 Ill. App. 2d 456, 460, 236 N.E.2d 336, 338.) Specifically, to set aside a judgment based on newly discovered evidence, it is quite settled that the evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment. Meudt v. Travelers Insurance Co. (1978), 57 Ill. App. 3d 286, 294, 372 N.E.2d 902, 908; Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 453-54, 224 N.E.2d 581, 585.\nLastly, we noted earlier that Evangelia did not answer the allegations in Dionisios\u2019 section 2 \u2014 1401 petition. Rather, the trial court granted her motion to strike. Therefore, we must accept as true his well-pled allegations, and the only issue before this court is whether the petition adequately sets forth sufficient facts to show that the trial court exceeded its discretion in dismissing the petition. (See Johnson v. Steiner (1988), 179 Ill. App. 3d 556, 560, 534 N.E.2d 391, 394.) The petition is addressed to the sound discretion of the trial court. A court of review will disturb the trial court\u2019s ruling only if the trial court clearly exceeded its discretion. Meudt, 57 Ill. App. 3d at 294, 372 N.E.2d at 908.\nApplying these principles to the case at bar, we conclude that Dionisios failed to plead sufficient facts to support the requirements of a section 2 \u2014 1401 petition. Dionisios alleged essentially that Evangelia: (1) bought an interest in land, and subsequently full title thereto, from her uncle, Nicholas Vasilatos; (2) received a devise of additional Greek land from the same uncle; and (3) held a \u201csecret\u201d bank account in Greece.\nWe first turn to Dionisios\u2019 allegation that Evangelia held approximately $23,000 in \u201ca secret account at an unknown financial institution in Athens, Greece.\u201d Dionisios does not supply any supporting affidavits or other information, such as the name of the bank, to support this bald allegation. Only well-pleaded facts stand admitted for the purpose of our review of a section 2 \u2014 1401 petition. (Kedzierski, 92 Ill. App. 2d at 462, 236 N.E.2d at 339.) We hold that this allegation is insufficient to establish Dionisios\u2019 right to section 2 \u2014 1401 relief. See State Bank v. Fair Winds, Inc. (1979), 73 Ill. App. 3d 597, 600-01, 392 N.E.2d 638, 640-41; Kedzierski, 92 Ill. App. 2d at 461-63, 236 N.E.2d at 338-39.\nWe next turn to Dionisios\u2019 allegations that Evangelia individually owned land in Greece. Dionisios alleged that on August 26, 1985, Evangelia bought an interest in Greek land and, in May 1986, she bought full title thereto, from her uncle. Dionisios also alleged that on September 2, 1985, Evangelia\u2019s uncle devised to her various additional parcels of farmland in Greece.\nAfter closely reviewing the record, we conclude that the evidence that Dionisios presents could reasonably have been discovered prior to the entry of judgment. Evangelia notified Dionisios of these facts during pretrial discovery approximately one year prior to the entry of judgment. She stated that she had acquired the interest in the land, but she believed that a Greek court divested her of that interest. She additionally stated that she was her uncle\u2019s guardian and that he died in March 1987. She also stated that her probate attorney possessed documents and other information pertaining to all of these matters. At trial, Dionisios\u2019 counsel cross-examined Evangelia on several matters, but did not question her on her interest in the land acquired from her uncle. Armed with Evangelia\u2019s statements several months prior to trial and approximately one year prior to judgment, Dionisios should reasonably have been able to discover and present this evidence prior to the entry of judgment. This conclusion, standing alone, would require us to affirm the trial court\u2019s dismissal of the section 2 \u2014 1401 petition.\nDionisios, however, contends that he exercised due diligence in presenting the evidence of Evangelia\u2019s Greek real estate. He alleged in his section 2 \u2014 1401 petition not only that the proffered evidence would have changed the result, but also that Evangelia concealed the information. Dionisios is correct that the fraudulent concealment of evidence is a factor in determining whether a section 2 \u2014 1401 petitioner exercised due diligence in discovering and presenting the ground for relief. (Malek, 152 Ill. App. 3d at 497-98, 504 N.E.2d at 895-96.) Courts reason that when an opponent suppresses information, as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the opponent\u2019s fault and not the inquirer\u2019s negligence. 152 Ill. App. 3d at 499, 504 N.E.2d at 897, quoting Ostendorf, 89 Ill. 2d at 284-85, 433 N.E.2d at 258.\nTo prove fraud, the complainant must show that the other party falsely stated a material fact or concealed a material fact that he had a duty to disclose; the fact was intentionally misstated or concealed to induce the complainant to act; and that the complainant detrimentally relied upon the misstatement or the nonexistence of the fact. The complainant bears the burden of proving fraud by clear and convincing evidence. In re Marriage of Bashwiner (1982), 107 Ill. App. 3d 772, 779, 438 N.E.2d 490, 495 (and cases cited therein).\nAfter carefully reviewing the record, we conclude that the element of detrimental reliance is absent from the case at bar. We initially note that Dionisios did not even allege in his section 2 \u2014 1401 petition that Evangelia\u2019s conduct was the cause of his delay in presenting the new evidence. This defect alone requires us to affirm the trial court\u2019s dismissal. See Jordan v. Jordan (1976), 38 Ill. App. 3d 781, 784, 349 N.E.2d 116, 119-20; Kedzierski, 92 Ill. App. 2d at 462, 236 N.E.2d at 338-39.\nEven if Dionisios made such an allegation, the record shows that he could not support it. As an example of Evangelia\u2019s fraud, Dionisios cited the Greek litigation of her interest in the land which she bought from her uncle. Evangelia disclosed this interest during pretrial discovery: a November 10, 1987, affidavit and a November 16, 1987, deposition. She further stated however, that litigation ensued, and that she believed that she lost her interest in the land. In his subsequent \u201cEmergency Motion,\u201d Dionisios presented a certified English translation of a decision of a Greek appellate court. The court apparently reversed a lower court and ruled in favor of Evangelia. In his section 2 \u2014 1401 petition, Dionisios alleged that at the time of her affidavit and deposition, Evangelia \u201cknew that she had prevailed in the litigation in Greece and was the legal owner of the full title to that property.\u201d\nThis example of Evangelia\u2019s fraud is illogical and lacks merit. The decision of the Greek appellate court states, apparently according to its procedure, that the court decided the case on November 24, 1987, and entered judgment on December 8, 1987. It is logically impossible for Evangelia to have lied on November 10 and 16 about an outcome that occurred on November 24. Dionisios\u2019 section 2 \u2014 1401 petition and subsequent motion do not attempt to explain the absurdity. \u201cA statement which is merely an expression of opinion or which relates to future or contingent events, expectations or probabilities, rather than to pre-existent or present facts, ordinarily does not constitute an actionable misrepresentation.\u201d (Metropolitan Bank & Trust Co. v. Oliver (1972), 4 Ill. App. 3d 975, 978, 283 N.E.2d 62, 64; Plavec, 30 Ill. App. 2d at 349, 174 N.E.2d at 579.) Courts regard such statements as mere promises or conjectures upon which the other party has no right to rely. Hayes v. Disque (1948), 401 Ill. 479, 488, 82 N.E.2d 350, 355.\nPursuing this argument, Dionisios alleges throughout his section 2 \u2014 1401 petition and subsequent motion that Evangelia never \u201ccorrected the deposition testimony that the Greek property had been ruled to be hers.\u201d It is quite settled, however, that mere silence or a failure to communicate information, absent a duty to do so, does not constitute fraud. Zanbetiz v. Trans World Airlines, Inc. (1966), 72 Ill. App. 2d 192, 201, 219 N.E.2d 98, 102-03.\nDionisios was obliged to prove his case. The appeal before the 'Greek court was decided approximately 10 to 11 months prior to the entry of judgment in the case at bar. He had notice of the Greek litigation approximately five months prior to trial. At trial, Dionisios\u2019 counsel did not question Evangelia on the Greek litigation. The record does not support Dionisios\u2019 allegations of fraud.\nIn sum, Dionisios\u2019 allegations of fraud fail because he does not, and the record demonstrates that he cannot, show that Evangelia\u2019s statements caused his delay in presenting his new evidence. The issue of detrimental reliance necessarily includes the question of whether Dionisios had a right to rely on Evangelia\u2019s alleged misrepresentations. We view this question in light of all of the facts of which Dioni-sios had actual notice, and also of such facts as he might have obtained by the exercise of ordinary prudence. If Dionisios did not avail himself of the means of knowledge open to him, he cannot be heard to say that he was misled by misrepresentations. (See Plavec, 30 Ill. App. 2d at 349, 174 N.E.2d at 580; see also Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 81, 302 N.E.2d 201, 206.) We cannot say that the trial court exceeded its discretion in dismissing Dionisios\u2019 section 2 \u2014 1401 petition and denying his subsequent motion to vacate the dismissal.\nFor the foregoing reasons, the orders of the circuit court of Cook County are affirmed.\nAffirmed.\nJIGANTI, P.J., and JOHNSON, J., concur.",
        "type": "majority",
        "author": "JUSTICE LINN"
      }
    ],
    "attorneys": [
      "John Thomas Moran, Jr., of Chicago, for appellant.",
      "Matthew J. Berardi, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "In re MARRIAGE OF EVANGELIA TRAVLOS, Petitioner-Appellee, and DIONISIOS TRAVLOS, Respondent-Appellant.\nFirst District (4th Division)\nNo. 1-90-1355\nOpinion filed September 5, 1991.\nRehearing denied October 3, 1991.\nJohn Thomas Moran, Jr., of Chicago, for appellant.\nMatthew J. Berardi, of Chicago, for appellee."
  },
  "file_name": "1030-01",
  "first_page_order": 1052,
  "last_page_order": 1061
}
