{ "id": 4283950, "name": "In re MARRIAGE OF WESLEY W. ROLSETH, Petitioner-Appellee, and SHEILA A. ROLSETH, n/k/a Sheila Craddock, Respondent-Appellant", "name_abbreviation": "In re Marriage of Rolseth", "decision_date": "2009-04-20", "docket_number": "No. 2-08-1184", "first_page": "969", "last_page": "974", "citations": [ { "type": "official", "cite": "389 Ill. App. 3d 969" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 Ill. App. 3d 472", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489167 ], "year": 1990, "pin_cites": [ { "page": "480-81", "parenthetical": "a party seeking to vacate a judgment under section 2 - 1401 of the Code must show that the facts entitling her to relief \"could not reasonably have been disclosed at or prior to the entry of judgment\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0472-01" ] }, { "cite": "99 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164374 ], "year": 1984, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0389-01" ] }, { "cite": "355 Ill. App. 3d 1081", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600025 ], "year": 2005, "pin_cites": [ { "parenthetical": "agreed order regarding custody and child support enforceable even though neither party had filed a petition to modify custody" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/1081-01" ] }, { "cite": "99 Ill. App. 3d 306", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100259 ], "year": 1981, "pin_cites": [ { "page": "309", "parenthetical": "same misreading of Lubowsky" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0306-01" ] }, { "cite": "125 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631758 ], "year": 1984, "pin_cites": [ { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0800-01" ] }, { "cite": "191 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510937 ], "year": 1989, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0051-01" ] }, { "cite": "235 Ill. App. 3d 1091", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784842 ], "year": 1991, "pin_cites": [ { "page": "1094-95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/1091-01" ] }, { "cite": "111 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166933 ], "year": 1986, "pin_cites": [ { "page": "310", "parenthetical": "noting that section 72 of the Civil Practice Act became section 2 - 1401 of the Code" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0304-01" ] }, { "cite": "79 Ill. App. 3d 909", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5607576 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "914", "parenthetical": "citing City of Des Plaines" }, { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0909-01" ] }, { "cite": "9 Ill. App. 3d 438", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2847480 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "443" }, { "page": "443" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0438-01" ] }, { "cite": "383 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277511 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "195" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/383/0191-01" ] }, { "cite": "355 Ill. App. 3d 146", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598960 ], "year": 2004, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0146-01" ] }, { "cite": "213 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448318 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "114" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0105-01" ] }, { "cite": "181 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498389 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "296" }, { "page": "296" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0293-01" ] } ], "analysis": { "cardinality": 646, "char_count": 12155, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14384294219469937 }, "sha256": "7fd053a6997c627285516216bf305ce820ab60a52619e81a70e67517a26fa7da", "simhash": "1:2ffbfd6a7c419e06", "word_count": 2007 }, "last_updated": "2023-07-14T20:37:38.013620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF WESLEY W. ROLSETH, Petitioner-Appellee, and SHEILA A. ROLSETH, n/k/a Sheila Craddock, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nRespondent Sheila Rolseth appeals from the trial court\u2019s ruling granting petitioner Wesley Rolseth\u2019s petition to declare the nonexistence of a parent-child relationship between him and two of respondent\u2019s children for whom petitioner had been paying child support. For the reasons that follow, we affirm the judgment of the trial court.\nThe 1999 judgment dissolving the parties\u2019 marriage included a marital settlement agreement in which the parties agreed that they shared parentage of four children, and it provided that petitioner pay child support accordingly. However, on July 14, 2008, petitioner filed a petition to declare the nonexistence of a parent-child relationship with respect to two of the four children. In the petition, petitioner alleged that respondent intentionally and fraudulently misled him as to the parentage of the two children, who, according to paternity testing conducted in June 2008, were not petitioner\u2019s biological children. The record contains no transcripts of any subsequent proceedings, but it does contain a July 28, 2008, agreed order signed by the parties. According to the text of the agreed order, after being \u201cfully advised in the premises,\u201d the trial court ruled as follows on petitioner\u2019s petition:\n\u201cBy admission of the parties in open court, and after reviewing all evidence including parentage test results, The Court finds that [petitioner] is not the father of [the two children mentioned in his petition]. To the extent that this Order conflicts with the Judgment of Dissolution of Marriage or any other prior order of Court, such prior orders are hereby vacated only to the extent that they evidence a finding of paternity, or obligation of support related to [the two children].\u201d (Emphasis in original.)\nThe agreed order also included a finding that respondent had been personally served in open court that day with a summons related to the petition.\nIn August 2008, respondent filed a motion to vacate the agreed order. The motion argued, among other things, that the order was improper because it was not preceded by a proper summons and that respondent was not represented by counsel when she agreed to the order. The trial court denied respondent\u2019s motion with a written order, which noted that, during the July 28 hearing, \u201cthe court asked [respondent] if she wished to hire counsel and if she [was] asking for time to respond\u201d but that respondent \u201creplied in the negative.\u201d Respondent timely appeals.\nBecause respondent seeks to vacate an agreed order, we begin with the standards governing such requests. An agreed order, also termed a consent order or a consent decree (Thompson v. IFA, Inc., 181 Ill. App. 3d 293, 296 (1989)), is not an adjudication of the parties\u2019 rights but, rather, a record of their private, contractual agreement (In re M.M.D., 213 Ill. 2d 105, 114 (2004)). Once such an order has been entered, it is generally binding on the parties and cannot be amended or varied without the consent of each party. M.M.D., 213 Ill. 2d at 114. Although there are exceptions to this rule, the precise nature of those exceptions has been the subject of some confusion in our case law. As the trial court noted in its written opinion, many cases state that agreed orders may be challenged with a showing that the agreement \u201cresulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the parties\u2019 bargaining positions, *** newly discovered evidence, or where the contract is void as contrary to public policy.\u201d E.g., In re Marriage of Nienhouse, 355 Ill. App. 3d 146, 151 (2004). However, other cases describe the exceptions as including only \u201ccoercion in the making of the agreement, gross disparity in the position or capacity of the parties,\u201d and a new exception for \u201cerrors of law apparent on the face of the record.\u201d Engel v. Loyfman, 383 Ill. App. 3d 191, 195 (2008), citing Thompson, 181 Ill. App. 3d at 296. Both lines of cases oversimplify the inquiry. At common law, agreed orders \u201ccould be collaterally attacked only through bills of review and were specifically immune from challenges by appeal or writ of error.\u201d City of Des Plaines v. Scientific Machinery Movers, Inc., 9 Ill. App. 3d 438, 443 (1972). However, after the enactment of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72), challenges to agreed orders were to be judged \u201cby the broad equitable considerations which govern all Section 72 petitions.\u201d City of Des Plaines, 9 Ill. App. 3d at 443; see Lubowsky v. Skokie Valley Community Hospital, 79 Ill. App. 3d 909, 914 (1979) (citing City of Des Plaines). Section 72 of the Civil Practice Act survives today as section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 2006)). R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 310 (1986) (noting that section 72 of the Civil Practice Act became section 2 \u2014 1401 of the Code). Those cases that enumerate the types of arguments available to challenge an agreed order without referencing section 72 of the Civil Practice Act or section 2 \u2014 1401 of the Code overlook this fundamental point. The statement in Engel, for example, traces to a misreading of Lubowsky as enumerating the types of challenges available, when Lubowsky actually listed the types of challenges historically accepted before noting that, under section 72 of the Civil Practice Act, \u201c \u2018broad equitable considerations\u2019 \u201d govern. Lubowsky, 79 Ill. App. 3d at 914, quoting City of Des Plaines, 9 Ill. App. 3d at 443; see Engel, 383 Ill. App. 3d at 195, citing Thompson, 181 Ill. App. 3d at 296 (incorrectly citing Lubowsky as enumerating limited types of challenges); see also Burchett v. Goncher, 235 Ill. App. 3d 1091, 1094-95 (1991), citing Kandalepas v. Economou, 191 Ill. App. 3d 51, 54 (1989), citing Bundy v. Church League of America, 125 Ill. App. 3d 800, 805 (1984), citing In re Haber, 99 Ill. App. 3d 306, 309 (1981) (same misreading of Lubowsky). To the extent those cases remove the test for upsetting agreed orders from the standards of equity embodied in section 2 \u2014 1401, we depart from them. Instead, we follow the rule that agreed orders may be modified or vacated only upon a showing that meets the standard applied to section 2 \u2014 1401 petitions, a standard that may or may not, depending on the circumstances, be met by a showing of one or several of the types of challenges enumerated in our case law.\nThe first alleged infirmity that respondent argues should mandate vacation of the July 28 agreed order is the fact that she was served with the summons associated with the July 28 hearing on the same day as the hearing. See 134 Ill. 2d R. 102(b) (summons of this type \u201cmay not be served later than three days before the day for appearance\u201d). First, we fail to see why the lack of time between service of the summons and the hearing on petitioner\u2019s petition should invalidate the agreed order, since, as the trial court noted, the same agreed order could have been filed even if petitioner had not filed his petition. See In re Marriage of Nau, 355 Ill. App. 3d 1081 (2005) (agreed order regarding custody and child support enforceable even though neither party had filed a petition to modify custody). That point aside, the trial court\u2019s written order indicates that respondent not only acquiesced in the hearing going forward but actually affirmatively declined the court\u2019s offer of additional time. The record thus very strongly indicates that respondent waived any objection based on Rule 102(b). Because respondent, as the appellant, bears the burden of providing an appellate record of proceedings sufficient to support a claim of error, any doubts that may arise from the incompleteness of the record must be resolved against her. Foutch v. O\u2019Bryant, 99 Ill. 2d 389, 392 (1984). Without a transcript of the July 28 hearing, we must accept the inference that respondent waived her objection before signing the agreed order.\nRespondent next argues that the agreed order should be vacated because she signed it without the benefit of legal counsel. We reject this argument for the same reason we reject her first argument: the record indicates that respondent was offered an opportunity to obtain counsel and affirmatively waived it.\nFinally, respondent argues that the agreed order should be vacated because the filing that preceded it \u2014 petitioner\u2019s petition to declare the nonexistence of a parent-child relationship \u2014 was a petition for relief from the original divorce judgment, under section 2 \u2014 1401 of the Code but not filed within the two-year time limit provided in that section. Even assuming arguendo that the untimeliness of petitioner\u2019s petition could void the later agreed order, we disagree with respondent that petitioner\u2019s petition was untimely. Respondent directs us to the limitations on section 2 \u2014 1401 petitions for relief from judgments, but petitioner\u2019s petition was actually a new action filed under section 7 of the Parentage Act of 1984 (Act) (750 ILCS 45/7 (West 2006)), which provides as follows:\n\u201cAn action to declare the non-existence of the parent and child relationship may be brought subsequent to an adjudication of paternity in any judgment by the man adjudicated to be the father *** if, as a result of [DNA] tests, it is discovered that the man *** is not the natural father of the child. *** If, as a result of the [DNA] tests, the plaintiff is determined not to be the father of the child, the adjudication of paternity and any orders regarding custody, visitation, and future payments of support may be vacated.\u201d 750 ILCS 45/7(b \u2014 5) (West 2006).\nThe statute of limitations provides that \u201c[a]n action to declare the non-existence of the parent and child relationship brought under [the above subsection] shall be barred if brought *** more than 2 years after the petitioner obtains actual knowledge of relevant facts,\u201d unless the child sooner reaches 18 years of age. 750 ILCS 45/8(a) (4) (West 2006). Petitioner here alleged in his petition that, due to respondent\u2019s concealment of the truth, he did not obtain any knowledge that would lead him to question his paternity of the two children until less than two years prior to his filing the petition. Because we must construe the gaps in the record against respondent, we infer from her signing the agreed order, which referred to her \u201cadmissions in open court\u201d as establishing petitioner\u2019s lack of paternity, that she admitted the truth of all the relevant portions of the petition, including the portion stating that petitioner had only recently gained knowledge of facts indicating he was not the children\u2019s father. Accordingly, even assuming that the untimeliness of petitioner\u2019s petition could operate to void the parties\u2019 agreed order, we hold that the order should not be vacated here, because the petition was timely.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Kane County.\nAffirmed.\nBOWMAN and SCHOSTOK, JJ., concur.\nAmong respondent\u2019s filings challenging the agreed order was an affidavit that disputed petitioner\u2019s claim regarding the timing of his learning that he was not the father of the two children. The affidavit asserted that the parties discussed the children\u2019s paternity at a much earlier date. However, this factual assertion is one that respondent could have made before entry of the agreed order, and it is therefore not the type of new factual matter that can support vacation of an agreed order. See In re Marriage of Klebs, 196 Ill. App. 3d 472, 480-81 (1990) (a party seeking to vacate a judgment under section 2 \u2014 1401 of the Code must show that the facts entitling her to relief \u201ccould not reasonably have been disclosed at or prior to the entry of judgment\u201d).", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "K.O. Johnson, of Law Office of K.O. Johnson, of DeKalb, for appellant.", "Daniel J. Kollias, of Law Offices of Daniel J. Kollias, PC., of Winfield, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF WESLEY W. ROLSETH, Petitioner-Appellee, and SHEILA A. ROLSETH, n/k/a Sheila Craddock, Respondent-Appellant.\nSecond District\nNo. 2 \u2014 08\u20141184\nOpinion filed April 20, 2009.\nK.O. Johnson, of Law Office of K.O. Johnson, of DeKalb, for appellant.\nDaniel J. Kollias, of Law Offices of Daniel J. Kollias, PC., of Winfield, for appellee." }, "file_name": "0969-01", "first_page_order": 985, "last_page_order": 990 }