{ "id": 411697, "name": "In re MARRIAGE OF MELANIE McGLOTHLIN, Petitioner-Appellee, and DOUGLAS R. McGLOTHLIN, Respondent-Appellant", "name_abbreviation": "In re Marriage of McGlothlin", "decision_date": "2000-04-07", "docket_number": "No. 2 \u2014 99 \u2014 0064", "first_page": "1145", "last_page": "1149", "citations": [ { "type": "official", "cite": "312 Ill. App. 3d 1145" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "219 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5801027 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "569" }, { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0564-01" ] }, { "cite": "285 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295529 ], "year": 1996, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0758-01" ] }, { "cite": "234 Ill. App. 3d 319", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5186495 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "325" }, { "page": "325" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0319-01" ] } ], "analysis": { "cardinality": 478, "char_count": 9392, "ocr_confidence": 0.729, "pagerank": { "raw": 1.1098064819302354e-07, "percentile": 0.570418970372404 }, "sha256": "5b85bc1f31f5b5542b30d25627f7bf9381c4a06fb91c005ff7a7c9177d91f185", "simhash": "1:9baec31e038f8fc4", "word_count": 1554 }, "last_updated": "2023-07-14T15:51:04.567640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF MELANIE McGLOTHLIN, Petitioner-Appellee, and DOUGLAS R. McGLOTHLIN, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nRespondent, Douglas R. McGlothlin (Douglas), appeals from the trial court\u2019s order denying his petition under section 2 \u2014 1401 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1401 (West 1996)) to vacate judgment. We reverse and remand.\nMelanie McGlothlin (Melanie) filed suit for dissolution of marriage against Douglas on November 19, 1996. Eventually, the matter was set for a pretrial conference on March 18, 1998, with a trial date of March 27. Also set at that time was Douglas\u2019s deposition, to be taken March 11.\nOn March 10, Douglas informed his attorney that he had accepted a trucking job that would require him to take an approximately 12-day trip to Honduras. However, due to delays in crossing various national borders and finding a return flight home, Douglas did not return until April 4. During that period, the pretrial conference was held and Douglas\u2019s deposition was rescheduled to March 24. On March 27, Douglas\u2019s attorney, William Rath, requested a continuance without clearly informing the court of the reasons for Douglas\u2019s failure to appear. The motion was denied. Rath was similarly unsuccessful in his attempt to bifurcate the hearing. The court defaulted Douglas and proceeded to trial on grounds for both dissolution and division of property. Judgment was entered on April 3.\nDouglas learned of the judgment upon his return from Honduras and on April 22 filed a motion to vacate. The court denied the motion. Douglas then changed attorneys and, after examining a transcript of the March 27 trial, filed a petition pursuant to section 2 \u2014 1401 of the Code of Civil Procedure on August 4, alleging that Melanie had misrepresented facts to the court, that the court had not been made aware of the reason for his absence, and that the court had not considered the terms of a marital settlement agreement entered into by Douglas and Melanie. A hearing was held on the petition on December 17, 1998, during which both Douglas and Melanie testified. The court denied the petition. This appeal followed.\nDouglas contends that the trial court erred in denying his section 2 \u2014 1401 petition. Section 2 \u2014 1401 provides a comprehensive statutory procedure by which final orders and judgments may be vacated more than 30 days after their entry. In re Marriage of Lindjord, 234 Ill. App. 3d 319, 325 (1992). The purpose of a section 2 \u2014 1401 petition is to bring before the court matters of fact not known at the time of judgment and that, if known, would have altered or affected the judgment. Lindjord, 234 Ill. App. 3d at 325. To be entitled to relief under section 2 \u2014 1401, a petitioner must set forth specific allegations supporting (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 \u2014 1401 petition. Lindjord, 234 Ill. App. 3d at 325. A section 2 \u2014 1401 motion is addressed to the trial court\u2019s discretion, and its denial will be reversed only upon an abuse of that discretion. See White v. Ratcliffe, 285 Ill. App. 3d 758, 763 (1996).\nDouglas argues that the trial court should have granted his section 2 \u2014 1401 petition because the court erred in failing to incorporate into its final judgment the marriage settlement agreement entered into by Douglas and Melanie. On January 13, 1998, Douglas and Melanie signed a settlement agreement regarding, among other things, the division of property in the event that their marriage was dissolved. According to the agreement, it was the understanding of the parties that the agreement was to be incorporated into the anticipated \u201cJudgment for Dissolution of Marriage and be attached thereto and merged thereon and shall thereafter be binding and conclusive upon the parties.\u201d The agreement further stated:\n\u201cIn the event that either Melanie or Douglas at any time hereafter obtains a Dissolution of Marriage in the cause presently pending between them, this agreement and all of its provisions shall be incorporated into any such Judgment or decree for Dissolution of Marriage, either directly or by reference, but in no event shall this agreement be effective or of any validity unless a Judgment or decree for Dissolution of Marriage is entered in the pending case brought by Melanie and referred to hereinabove. The Court on entry of the judgment or decree for Dissolution of Marriage shall retain the right to enforce the provision and terms of this agreement which agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, assigns, advisees and grantees of the parties hereto.\u201d (Emphasis added.)\nThis agreement was never presented to the court during the March 27 trial. During her testimony, Melanie referred to an \u201cagreed order\u201d with Douglas and an \u201cunderstanding that we had a marital settlement.\u201d Her attorney referred to \u201can alleged agreement that they had made between them on a pre- [sic] on the marital agreement basis.\u201d Because Douglas failed to appear for trial or for his deposition, the court precluded Douglas\u2019s attorney, William Rath, from cross-examining Melanie. Given the opportunity to speak in closing argument, Rath did not mention the agreement, arguing only the inequity of giving all the assets to Melanie and all the debts to Douglas and that the assets and debts should be split evenly between the two parties.\nThe agreement also was not brought up in Douglas\u2019s motion to vacate. However, it was raised in the section 2 \u2014 1401 motion. During the hearing on the section 2 \u2014 1401 petition, Melanie testified that her intent, when she signed the agreement, was that the agreement was only valid if the case went to prove-up on February 17, 1998. On that date the case was set for trial because Douglas did not agree to proceed to prove-up. Melanie\u2019s understanding was that the agreement was \u201cnull and void\u201d because the prove-up was not held. Douglas testified at the hearing on the petition that he understood that \u201cthere would be no way that either one of us could back out of the Agreement\u201d and that no one had rescinded the agreement or taken any action to invalidate it. The trial court found that the agreement \u201cwas predicated and based upon the fact that a prove-up and uncontested divorce would go forward on February 17th, 1998,\u201d and that \u201cthe parties recognized that the Agreement was no longer in effect and that this matter would be tried as a contested divorce.\u201d\nWe conclude that the trial court abused its discretion in denying Douglas\u2019s section 2 \u2014 1401 petition. The court\u2019s finding that the settlement agreement was predicated upon the prove-up proceeding on February 17 is against the manifest weight of the evidence. The agreement states that the provisions of the agreement are to be incorporated into the decree for dissolution of marriage if either Melanie or Douglas \u201cat any time\u201d (emphasis added) obtains such a judgment. The agreement never states that its validity was contingent upon prove-up on February 17 or any other specific date, and finding that the agreement was so contingent was baseless. The language of the agreement is unambiguous and does not support Melanie\u2019s \u201cunderstanding\u201d of it or the court\u2019s conclusions regarding it.\nFurthermore, the failure to present the agreement to the court was tantamount to fraud on Melanie\u2019s part. Melanie knew of the existence of this signed document and what the document stated. Her failure to present the agreement and her disparagement of it as \u201calleged\u201d appear unethical. We also find attorney Rath\u2019s failures to address the issue at trial or in the original motion to vacate to be enigmatic. The parties were, at minimum, derelict in presenting evidence to the court, and the court was manifestly in error in dealing with the evidence when it finally came to light.\nDouglas clearly had a meritorious claim regarding the settlement agreement. Melanie argues that Douglas was not diligent in presenting this claim to the court, as it was not raised in the original motion to vacate and was only raised five months after trial in the section 2 \u2014 1401 petition. However, even in the absence of due diligence, a default judgment can be vacated if equity, justice, and good conscience so require. Halle v. Robertson, 219 Ill. App. 3d 564, 569 (1991). Indeed, a section 2 \u2014 1401 petition should be used to prevent the enforcement of an unjust or unfair judgment. Halle, 219 Ill. App. 3d at 569. Equity here requires that the trial court\u2019s judgment, based as it was on misleading testimony and the unseemly suppression of evidence, be vacated and the cause be remanded for the entry of judgment in accordance with the settlement agreement reached by the parties on January 14, 1998.\nBecause of our disposition of this issue, we need not address Douglas\u2019s other contentions.\nFor these reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for the entry of judgment consistent with this opinion.\nReversed and remanded.\nRAPP and GALASSO, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Martin A.A. Diestler, of Wheaton, for appellant.", "Michael A. Benedetto, of Oak Brook, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF MELANIE McGLOTHLIN, Petitioner-Appellee, and DOUGLAS R. McGLOTHLIN, Respondent-Appellant.\nSecond District\nNo. 2 \u2014 99 \u2014 0064\nOpinion filed April 7, 2000.\nRehearing denied June 1, 2000.\nMartin A.A. Diestler, of Wheaton, for appellant.\nMichael A. Benedetto, of Oak Brook, for appellee." }, "file_name": "1145-01", "first_page_order": 1165, "last_page_order": 1169 }