{ "id": 2469862, "name": "In re MARRIAGE OF SHEILA A. JOHNSON, Petitioner-Appellant, and GORDON B. JOHNSON, Respondent-Appellee", "name_abbreviation": "In re Marriage of Johnson", "decision_date": "2003-05-19", "docket_number": "No. 2-02-0453", "first_page": "237", "last_page": "243", "citations": [ { "type": "official", "cite": "339 Ill. App. 3d 237" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "312 Ill. App. 3d 1145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411697 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "1149" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/1145-01" ] }, { "cite": "325 Ill. App. 3d 317", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569780 ], "year": 2001, "pin_cites": [ { "page": "326", "parenthetical": "distinguishing \"procedural\" unconscionability from \"substantive\" unconscionability" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0317-01" ] }, { "cite": "350 F.2d 445", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 466729, 3651171 ], "year": 1965, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/f2d/350/0445-01" ] }, { "cite": "101 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080534 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "930" }, { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0924-01" ] }, { "cite": "220 Ill. App. 3d 271", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274421 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "285" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0271-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "222" }, { "page": "221" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "218 Ill. App. 3d 1030", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499634 ], "year": 1991, "pin_cites": [ { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/1030-01" ] }, { "cite": "256 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383350 ], "year": 1993, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0699-01" ] }, { "cite": "164 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477002 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "60" }, { "page": "60-61" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0054-01" ] } ], "analysis": { "cardinality": 707, "char_count": 13550, "ocr_confidence": 0.775, "pagerank": { "raw": 5.5335665348617085e-08, "percentile": 0.34893810411340587 }, "sha256": "f83015cc3ae77e3c390607ed43979cd188d588d93f3b9a9732871bdddc037cf5", "simhash": "1:a1ae006a53c01c8e", "word_count": 2160 }, "last_updated": "2023-07-14T22:12:32.579911+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF SHEILA A. JOHNSON, Petitioner-Appellant, and GORDON B. JOHNSON, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nOn March 7, 2000, the circuit court of De Kalb County entered a judgment dissolving the marriage of petitioner, Sheila A. Johnson (Sheila), and respondent, Gordon B. Johnson (Gordon). The judgment incorporated a separation agreement that provided for the disposition of the parties\u2019 property. Almost 20 months later, on November 1, 2001, Gordon filed a petition under section 2\u20141401 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u20141401 (West 2000)) to vacate the judgment. Sheila appeals from the trial court\u2019s order granting the petition. We affirm.\nThe separation agreement recited that Gordon earned $46,000 annually and Sheila\u2019s annual income was $15,000. The agreement further recited that both parties were equally capable of supporting and maintaining themselves and that they waived all claims for maintenance and all claims to each other\u2019s nonmarital property. The agreement provided, inter alia, that the marital residence, worth approximately $130,000, would be assigned to Sheila and that Gordon would pay Sheila $450 per week for 176 months. Gordon would retain his pension. The $450 weekly payment was designed to compensate Sheila for releasing any claim against Gordon\u2019s pension and for paying off a $45,000 home equity loan secured by the marital residence. Other terms of the agreement providing for the disposition of the parties\u2019 motor vehicles, household furnishings, personal belongings, and bank accounts need not be described here.\nThe matter proceeded to a prove-up. Sheila was represented by attorney Roger W. Hayes, and Gordon appeared pro se. At the outset, the trial court asked Gordon whether he was represented by an attorney. Gordon responded that he and Sheila had visited Hayes together. The court then advised Gordon that Hayes represented only Sheila and that his position was adverse to Gordon\u2019s. The court asked Gordon whether he chose to represent himself, and Gordon said that he did. The court also asked Gordon, \u201cYou understand that we\u2019re gonna do things here this morning that affect your legal rights on a permanent irrevocable basis?\u201d Gordon replied affirmatively.\nSheila testified that she was 49 years old and was employed as the Sandwich Township assessor. Gordon was 50 years old and was employed as an assembler at the Caterpillar factory. The parties were married in 1971 and had three children: 26-year-old Ryan, 22-year-old Jeffrey, and 19-year-old Stacey. Sheila identified the separation agreement and testified that she had entered into it freely and voluntarily, she had fully disclosed her asset's to Gordon, and she believed Gordon had also made full disclosure to her. She also reaffirmed her waiver of maintenance. After Hayes completed his direct examination of Sheila, the following exchange occurred:\n\u201cTHE COURT: What have they done with the pensions? I don\u2019t have a copy of the settlement agreement.\nMR. HAYES: I\u2019m sorry. (Handed up)\nTHE COURT: Thank you.\nYou\u2019re getting the house, he\u2019s getting the pension.\nTHE WITNESS: Yes.\u201d\nGordon testified that he signed the separation agreement on the morning of the prove-up. He testified that he had read and understood the agreement, he believed it was fair and just, and he had signed it voluntarily. Gordon confirmed that he had completely disclosed his income and assets to Sheila and he believed Sheila had completely disclosed all her income and assets.\nThe trial court entered a judgment dissolving the parties\u2019 marriage. The court found that the separation agreement was not unconscionable and incorporated the agreement into the dissolution judgment.\nAs noted, Gordon filed his section 2 \u2014 1401 petition almost 20 months later. He complained, inter alia, that in light of the $450 weekly payments for 176 months, the separation agreement was unconscionable. Sheila moved to dismiss the petition pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2000)). The trial court denied the motion. Sheila filed an answer to the petition, and the matter proceeded to an evidentiary hearing at which the following salient facts were established. In 1999, after Christmas, the parties discussed ending their marriage. Sheila gave Gordon a handwritten proposal for a property settlement. Sheila proposed that Gordon pay her $450 per week. Sheila would receive the parties\u2019 home, and after repaying the home equity loan, she would release any claim to Gordon\u2019s pension. (The monthly payment on the home equity loan was $457.)\nGordon agreed to these terms, and the parties visited attorney Hayes. Sheila later gave Gordon a copy of the separation agreement to review. Gordon testified that he was unsure why the agreement provided that his weekly payments to Sheila would continue for 176 months. He stated that he thought this might correspond to the period for repaying the home equity loan. Gordon testified that he thought 176 months was an outer limit; that the weekly payments would end when the loan was paid off; and that Sheila had told him she would repay the loan as soon as possible. However, Gordon equivocated on this point, later testifying that he never really thought that the duration of his weekly payments to Sheila was related to the home equity loan.\nGordon testified that his employment benefits included a legal services plan, and he had access to an attorney to advise and represent him in connection with the dissolution proceedings. Gordon acknowledged that he is able to read and has never been diagnosed with a learning disability. He acknowledged that he read and understood the separation agreement. The parties stipulated to the admission into evidence of a letter from an actuary stating that the present value of Gordon\u2019s pension, as of October 1, 2001, was $99,090.\nThe trial court concluded that the separation agreement was unconscionable. The court noted that the weekly payments had not been brought to the court\u2019s attention when it approved the agreement. This appeal followed.\nSheila initially argues that the trial court erred in denying her motion to dismiss Gordon\u2019s petition. In essence, Sheila argues that the allegations are vague and conclusory. According to Sheila, the petition is woefully deficient. Sheila has waived the issue.\nAfter the trial court denied Sheila\u2019s motion to dismiss Gordon\u2019s petition, she filed an answer and the matter proceeded to an evidentiary hearing. \u201cGenerally, where a trial court denies a defendant\u2019s motion to dismiss a complaint, and that defendant elects to file an answer to the complaint, the defendant waives any defect in the pleading.\u201d (Emphasis in original.) Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994). Moreover, the related doctrine of aider by verdict provides that where a defendant allows an action to proceed to a verdict, the verdict will cure not only formal and purely technical defects and clerical errors in a complaint, but will also cure any defect in failing to allege, or defectively or imperfectly alleging, any substantial facts that are essential to a right of action. Adcock, 164 Ill. 2d at 60-61.\nWe next consider whether the trial court erred in granting Gordon\u2019s section 2\u20141401 petition. \u201cA section 2\u20141401 petition serves to bring before the court that rendered judgment \u2018facts not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition.\u2019 \u201d In re Marriage of Broday, 256 Ill. App. 3d 699, 705 (1993), quoting In re Marriage of Travlos, 218 Ill. App. 3d 1030, 1035 (1991). Ordinarily, the party seeking relief must have acted with diligence in the original proceedings, and relief is usually unavailable where the party negligently failed to assert a defense or make facts known to the court prior to entry of judgment. See Smith v. Airoom, Inc., 114 Ill. 2d 209, 222 (1986). Relief under section 2\u20141401 may be available to set aside a settlement agreement that is unconscionable or was entered into because of duress, coercion, or fraud. See In re Marriage of Hoppe, 220 Ill. App. 3d 271, 285 (1991). Whether to award relief under section 2\u20141401 lies within the sound discretion of the circuit court depending on the facts and equities presented, and a reviewing court will not disturb that decision unless it represents an abuse of discretion. Airoom, 114 Ill. 2d at 221.\nHere, Gordon\u2019s section 2\u20141401 petition sought to bring the separation agreement\u2019s weekly payment provision to the trial court\u2019s attention. Of course this provision was a matter of record when judgment was entered, even though it is clear that the trial court was unaware of it. On the other hand, there was no evidence of the actuarial value of Gordon\u2019s pension in the initial dissolution proceedings. Leaving aside, for the moment, the question of Gordon\u2019s diligence, the question is whether that information, had it been known to the trial court, would have prevented rendition of the judgment incorporating the separation agreement. More specifically, section 2\u20141401 relief depends on whether the trial court would have found the agreement unconscionable. See 750 ILCS 5/502(b) (West 2000) (\u201cThe terms of the agreement *** are binding upon the court unless it finds *** that the agreement is unconscionable\u201d).\nA marital settlement agreement may be found unconscionable \u201cwhen it is improvident, totally one-sided or oppressive.\u201d In re Marriage of Carlson, 101 Ill. App. 3d 924, 930 (1981). While Carlson indicates that \u201c \u2018unconscionability\u2019 includes \u2018an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party\u2019 \u201d (emphasis added) (Carlson, 101 Ill. App. 3d at 930, quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965)), we do not view this as meaning that the absence of a meaningful choice is the only basis for finding unconscionability. Accord In re Marriage of Gibson-Terry, 325 Ill. App. 3d 317, 326 (2001) (distinguishing \u201cprocedural\u201d unconscionability from \u201csubstantive\u201d unconscionability). Here, the agreement was so one-sided and oppressive that it was unconscionable regardless of whether Gordon had a meaningful choice.\nThe principal assets in the parties\u2019 marital estate were their $85,000 equity interest in the marital residence and Gordon\u2019s pension, which had a present value of about $100,000. Gordon was permitted to keep his pension, but was saddled with weekly payments totaling about $340,000 over 142/s years. There is no evidence of the present value of these payments. However, it seems almost certain that, by any reasonable calculation, the present value of the weekly payments would exceed the present value of the pension. If so, it is possible Sheila would effectively receive money and other property worth more than the value of the marital estate.\nThis result cannot be justified on the theory that Sheila is not receiving maintenance. The $450 weekly payments were not designated maintenance, but compensation to Sheila for paying the $45,000 home equity loan and releasing any claim to Gordon\u2019s pension. Moreover, the separation agreement specifically recites that the parties were equally capable of supporting and maintaining themselves. Sheila reaffirmed this during her prove-up testimony, and, in our view, she should not be permitted to recharacterize the weekly payments.\nIt remains for us to consider whether section 2\u20141401 relief is unavailable because Gordon was not sufficiently diligent in bringing the relevant information to the trial court\u2019s attention at the appropriate time. There appears to be no reason Gordon could not have had an actuarial analysis of his pension performed before the judgment was entered. Thus, the record tends to show that Gordon failed to act with proper diligence. However, the requirement that a section 2\u20141401 petitioner demonstrate diligence is not inflexible. \u201c[W]hen justice and fairness require, a judgment may be vacated even though the requirement of due diligence has not been satisfied.\u201d Hoppe, 220 Ill. App. 3d at 283, citing Airoom, 114 Ill. 2d at 225. We believe the circumstances of this case warrant invoking this exception. The settlement agreement effectively leaves Gordon in penury. We also note that neither Sheila nor her attorney corrected the trial court\u2019s incomplete characterization of the separation agreement: \u201cYou\u2019re getting the house, he\u2019s getting the pension.\u201d Their lack of candor in this case is not so different from the circumstances in In re Marriage of McGlothlin, 312 Ill. App. 3d 1145 (2000), where we held that equity, justice, and good conscience required relaxing the diligence requirement and vacating a default judgment where the party who obtained the judgment failed to advise the court that the parties had previously entered into a settlement agreement. Here, as in McGlothlin, \u201c[ejquity *** requires that the trial court\u2019s judgment, based as it was on misleading testimony and the unseemly suppression of evidence, be vacated.\u201d McGlothlin, 312 Ill. App. 3d at 1149. Accordingly, we cannot say the trial court abused its discretion in granting Gordon\u2019s petition.\nFor the foregoing reasons, the judgment of the circuit court of De Kalb County is affirmed.\nAffirmed.\nO\u2019MALLEY and GEOMETER, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Kenneth E. Poris, of Kenneth E. Poris, EC., of Somonauk, for appellant.", "Richard D. Larson, of Sycamore, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF SHEILA A. JOHNSON, Petitioner-Appellant, and GORDON B. JOHNSON, Respondent-Appellee.\nSecond District\nNo. 2-02-0453\nOpinion filed May 19, 2003.\nKenneth E. Poris, of Kenneth E. Poris, EC., of Somonauk, for appellant.\nRichard D. Larson, of Sycamore, for appellee." }, "file_name": "0237-01", "first_page_order": 253, "last_page_order": 259 }