In re Marriage of Miller

NO. 4-05-0475 Filed: 3/10/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of ) Appeal from
MARVIN E. MILLER, ) Circuit Court of
Petitioner-Appellant, ) Macoupin County
and ) No. 95D63
BRENDA J. MILLER, )
Respondent-Appellee. ) Honorable
) Theodis P. Lewis
) Thomas P. Carmody,
) Judges Presiding.

JUSTICE APPLETON delivered the opinion of the court:

The question presented by this appeal is whether a trial court has

jurisdiction to vacate and reopen a final judgment of dissolution of marriage entered

some six years earlier. The question arose when, in 2001, petitioner, Marvin E. Miller,

asked the court to enforce the July 1995 judgment of dissolution that had awarded him,

inter alia, the marital home. In January 2002, respondent, Brenda J. Miller, asked the

court to set aside the 1995 final judgment, claiming that neither she nor petitioner knew

the judgment of dissolution had been entered until March 2001. She claimed that since

1995, the two had been living together as husband and wife and, as a result, had jointly

acquired additional property and financial obligations.

In April 2003, the trial court set aside its July 1995 judgment and entered a

new judgment. In May 2003, petitioner sought to vacate the new judgment as void,

claiming the court lacked jurisdiction to grant the relief it did. In May 2005, the trial court

denied petitioner's request to vacate the order. Petitioner appeals from that denial. We
affirm.

I. BACKGROUND

Petitioner filed a petition for dissolution of marriage on March 21, 1995,

and respondent filed an answer and cross-petition on April 13, 1995. Each party was

represented by separate counsel. On May 15, 1995, the trial court, Judge Thomas P.

Carmody presiding, conducted a hearing on grounds for the dissolution. The docket

entry for that date stated :

"Present in court the petitioner, Marvin E. Miller, and

his attorney, J. Richard Meno. The respondent does not

appear but is represented by attorney William Katich.

Respondent [sic] and his attorney agree to proceed on

grounds today. Witness sworn; evidence heard. Based

upon the testimony presented, the [c]ourt finds that the

parties are entitled to a dissolution of their marriage on

grounds of extreme and repeated mental cruelty. Court

further finds that the property settlement agreement entered

into between the parties[,] including a waiver of

maintenance[,] is fair and reasonable and not

unconscionable. Attorney Meno is to prepare the written

[j]udgment and submit the same to opposing counsel for his

approval and then to the [c]ourt for entry."

On July 13, 1995, Judge Carmody entered the written judgment of

dissolution tendered by counsel, which had been signed as "approved by" both

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attorneys. Neither party personally signed the judgment indicating their approval nor

was there a written settlement agreement in the file bearing their signatures. The clerk

was directed to send file-marked copies to the attorneys. The court directed the case to

be closed and the cause stricken.

Almost six years passed before petitioner, through attorney Larry Clark, in

May 2001, filed a petition for rule to show cause why respondent should not be held in

contempt of court for failing to comply with the property distribution set forth in the 1995

judgment of dissolution. On July 26, 2001, the trial court allowed attorney Clark's

motion to withdraw as counsel for petitioner. The record does not indicate any further

action was taken on petitioner's request for contempt.

On January 28, 2002, attorney Robert Watson on behalf of respondent

filed a "petition for declaratory judgment," requesting a determination of the ownership

and distribution of both marital and nonmarital assets. The petition alleged that until

March 2001, neither party was aware that a final judgment of dissolution of marriage

had been entered. Respondent had not complied with any of the property distribution

provisions set forth in the judgment because (1) she was not familiar with the content of

the provisions, and (2) she assumed the dissolution proceedings remained pending.

Respondent alleged that until March 2001, she and petitioner had resided together as

husband and wife, acquired personal property together, and filed joint income tax

returns each year. Respondent asked the trial court to redistribute the marital and

nonmarital assets in light of the couple's actions since July 1995.

Although not part of the record before us, we discern from the testimony

and argument presented to the trial court at the various hearings in the instant

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proceedings that the following occurred. In May 2001, respondent obtained an order of

protection against petitioner. At one of the hearings related to the order of protection,

the trial court, Judge Diane Brunton presiding, entered a temporary order awarding

respondent the marital home. It was in relation to the order of protection proceedings

that the parties discovered they had been divorced since 1995. Because the final

judgment of dissolution awarded petitioner the home, Judge Brunton amended the

temporary order and ordered respondent to vacate the home.

On June 20, 2002, the trial court conducted a hearing on respondent's

"petition for declaratory judgment." Petitioner appeared pro se, and respondent

appeared personally and with attorney Watson. Petitioner testified first as an adverse

witness for respondent. He said in May 1995 he had appeared in court and testified

regarding his request for temporary possession of the marital home. He said his

request was granted that day. He could not recall whether respondent or her attorney

was present in court. In an uncooperative and argumentative manner, petitioner

testified that he was not sure whether he and respondent had filed joint income tax

returns since 1995, and he denied receiving any increased veteran's benefit as a result

of being married. He said respondent moved back into the marital home sometime in

1995 and remained there through 2001. He said he had discovered only a year ago

that he and respondent were no longer married. He presented no testimony or

evidence as to whether he and his attorney had negotiated and entered into a marital

settlement agreement in 1995. Petitioner then testified as to his assets and debts

acquired since 1995.

Respondent testified that in May 1995, petitioner, his attorney, her

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attorney, and she attended a meeting at the courthouse to discuss temporary

possession of the marital residence. She said that was the only occasion she had gone

to the courthouse with regard to the dissolution. It was her opinion that the only issue

decided that day was that petitioner would receive temporary possession of the home.

She said after the meeting they "were going to decide what [they] were going to do."

She said she had never appeared before a judge in relation to the dissolution.

At this courthouse meeting, the parties had agreed that, due to petitioner's

disability, he could have temporary possession of the home. Despite this agreement,

respondent had not moved out of the house for any extended period since 1995. On

occasion, she would spend a "couple days" with her daughter. She and petitioner

continued to live as husband and wife. Since 1995, they had made joint purchases and

acquired joint debt. She moved out of the home for the last time in May 2001. She did

not know that a final judgment of dissolution had been entered in 1995 and had not

signed any documents agreeing to a property settlement. She further disclaimed

knowledge that petitioner had agreed to any final division of property.

The common-law record indicates that for approximately one year, the

parties bickered about when, by whom, and how the court-ordered appraisals of certain

marital property should be conducted and paid. On November 19, 2002, petitioner filed

a pro se motion to dismiss, and on December 2, 2002, the trial court conducted a

hearing and denied petitioner's motion. We have before us no record of this hearing

and no transcript or bystander's report (166 Ill. 2d R. 323(c)) or agreed statement of

facts (166 Ill. 2d R. 323(d)).

On April 15, 2003, Judge Carmody resumed the evidentiary hearing on

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respondent's petition for declaratory judgment. Respondent again testified that (1) she

and petitioner had not realized that a final judgment of dissolution of marriage had been

entered; (2) they had, for the most part, continuously resided together; (3) they had filed

joint income tax returns; and (4) petitioner had received a monthly marital benefit from

the Veteran's Administration.

Petitioner was not represented by counsel during this hearing, so Judge

Carmody questioned him. Petitioner said he and respondent separated in 1995 and

resided together "off and on" since that time. Petitioner described the nature of the

personal property, real property, and debt that he and respondent had acquired before

and after 1995. Neither attorney Meno nor attorney Katich testified at the evidentiary

hearings (June 20, 2002, or April 15, 2003) about the circumstances of the purported

"settlement agreement" presented to the court on May 15, 1995. On April 30,

2003, Judge Carmody entered an order vacating the July 1995 final judgment, which

dissolved anew the parties' marriage and distributed their marital and nonmarital assets.

Petitioner appealed to this court from that order. On May 20, 2003, attorney Rick

Verticchio, on behalf of petitioner, filed an entry of appearance and a motion to dismiss

petitioner's appeal. On May 21, 2003, Judge Carmody entered an order dismissing

petitioner's appeal without prejudice.

On May 22, 2003, attorney Verticchio, on petitioner's behalf, filed a motion

to dismiss respondent's "declaratory judgment" action, citing section 2-619 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2002)) and claiming the trial court

lacked jurisdiction to enter its April 30, 2003, order. In the alternative, petitioner

requested the court reconsider its order.

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 The case lingered for another year, during which time respondent

replaced attorney Watson with attorney Kathy Baker-Bowen. Finally, on October 25,

2004, the trial court, Judge Theodis Lewis presiding (due to the retirement of Judge

Carmody), conducted a hearing on petitioner's motion to dismiss. Again, we have no

record of that testimony and no transcript or bystander's report (166 Ill. 2d R. 323(c)) or

agreed statement of facts (166 Ill. 2d R. 323(d)). Thereafter, each party submitted legal

memoranda for the court's consideration.

On May 16, 2005, Judge Lewis found the trial court had jurisdiction to

enter its April 2003 order and denied both petitioner's motion to dismiss and his motion

to reconsider. This appeal followed.

II. ANALYSIS

Initially, we will attempt to simplify and clarify procedurally what occurred

in the trial court. Despite the labels placed on the various motions and petitions before

the trial court, we find the substance of those motions and petitions indicate the

following occurred procedurally in this case since 1995. See Sarkissian v. Chicago

Board of Education, 201 Ill. 2d 95, 102, 776 N.E.2d 195, 200-01 (2002) (it is a motion's

substance, not its title, that determines the motion's character).

In May 2001, petitioner, after discovering he was awarded sole ownership

of the marital residence in the 1995 final judgment of dissolution, filed a petition to hold

respondent in contempt for (1) failing to execute a deed conveying her interest in the

residence to him as ordered, (2) representing to another judge in an order of protection

case that she should be entitled to possession, and (3) removing items of personal

property from the residence in defiance of a court order. This pleading was never

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addressed by the trial court.

Instead, in January 2002, eight months after petitioner filed his contempt

petition, respondent filed a petition to vacate the 1995 final judgment of dissolution and

make another, different equitable distribution of the marital assets and debts acquired

and incurred before and after 1995. In June 2002, the trial court heard some evidence

on respondent's petition but then continued the hearing to allow the parties to obtain

appraisals on certain property. In November 2002, petitioner filed a pro se motion to

dismiss respondent's petition to vacate. The court denied petitioner's pro se motion to

dismiss.

In April 2003, after hearing additional testimony, the trial court vacated the

original judgment of dissolution of marriage, entered a new judgment, and redistributed

the assets and liabilities of the parties. In May 2003, petitioner, through counsel, moved

to vacate (even though petitioner's motion stated he was moving to dismiss pursuant to

section 2-619 of the Code (735 ILCS 5/2-619 (West 2002))) that April 2003 order,

claiming the court lacked jurisdiction. He claimed, because respondent's request for

relief was filed more than two years after the entry of the judgment, respondent's

petition was untimely under section 2-1401 of the Code (735 ILCS 5/2-1401 (West

2002)). Alternatively, petitioner asked the court to reconsider its April 2003 order.

In May 2005, Judge Lewis found the trial court properly had jurisdiction to

consider the matter and denied petitioner further relief. Judge Lewis held that because

Judge Carmody, in his April 2003 order, specifically found that neither party had agreed

to the terms of the judgment (despite the May 15, 1995, docket entry that stated that the

parties had agreed to the property distribution), equity and fairness justified a new

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property distribution. "Our review of a trial court's determination of subject[-]matter

jurisdiction is de novo." In re Marriage of Adamson, 308 Ill. App. 3d 759, 764, 721

N.E.2d 166, 172 (1999).

The relevant portions of Judge Lewis's order, for the purposes of this

appeal, set forth that (1) respondent's "petition for declaratory judgment" was, in reality,

a section 2-1401 petition--a proper vehicle for respondent's attack on the judgment; (2)

petitioner had not waived his right to challenge the trial court's jurisdiction by

participating in the proceedings; and (3) the 1995 final judgment was entered without

knowledge of either party, and therefore the two-year limitation period under section 2-

1401 was tolled. Although we do not agree with the basis of Judge Lewis's order, we

nevertheless affirm. See Reyes v. Walker, 358 Ill. App. 3d 1122, 1124, 833 N.E.2d 379,

381 (2005) (a reviewing court may affirm on any basis warranted by the record).

Petitioner first claims that respondent's "petition for declaratory judgment"

cannot legally be construed as a section 2-1401 petition (735 ILCS 5/2-1401 (West

2002)). He claims that because respondent (1) did not reference section 2-1401 in her

petition, (2) filed her petition more than two years after entry of the final judgment, and

(3) did not allege legal disability, duress, or fraudulent concealment so as to toll the two-

year time limit, Judge Lewis erred in ruling that her petition was, in substance, a section

2-1401 petition.

Petitioner further claims that respondent's suggestion that the two-year

limit was tolled on the basis of a mutual mistake is in error. While respondent argued in

the trial court, relying on In re Marriage of Breyley, 247 Ill. App. 3d 486, 617 N.E.2d 243

(1993), that a mutual mistake of fact was a proper ground for relief under section 2-1401

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(an argument not adopted by her brief on appeal), petitioner argues that Judge Lewis

"accepted the suggestion" posed by respondent and relied on Breyley as well. Our

reading of Judge Lewis's order reveals that not to be the case. Judge Lewis

distinguished Breyley, finding the disputed issue in this case arose not from the terms of

an agreement but, rather, from whether the parties had entered into an agreement at all.

"A 'mutual mistake of fact' exists for purposes of the reformation of a

written instrument, when the contract has been written in terms which violate the

understanding of both parties." In re Marriage of Johnson, 237 Ill. App. 3d 381, 394,

604 N.E.2d 378, 388 (1992). Because the parties did not enter into a written agreement

or claim the terms of an agreement were not what they had intended, the mutual

mistake argument, as a basis for relief, is not applicable.

Although she does not argue the "mutual mistake" theory on appeal,

respondent does claim that "[a]s long as the substance of the [section] 2-1401 [m]otion

is present, it need not be titled a [section] 2-1401 [m]otion." She further claims that she

should be entitled to relief under section 2-1401 of the Code because "fairness and

equity" so require. Unfortunately for respondent, "fairness and equity" alone do not

constitute sufficient reasons to grant relief under section 2-1401 when the petition was

filed more than two years after the judgment was entered.

We agree with petitioner that section 2-1401 of the Code did not provide

the proper authority for respondent's requested relief. We find no basis in this case to

toll the two-year limitations period required by section 2-1401. Therefore, we must

determine whether the trial court had jurisdiction to reopen a final judgment of

dissolution six years after its entry on some other basis.

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 Section 510(b) of the Illinois Marriage and Dissolution of Marriage Act

(Act) (750 ILCS 5/510(b) (West 2002)) provides that "[t]he provisions as to property

disposition may not be revoked or modified, unless the court finds the existence of

conditions that justify the reopening of a judgment under the laws of this State."

(Emphasis added.) The Fifth District in King v. King, 130 Ill. App. 3d 642, 654, 474

N.E.2d 834, 841-42 (1985), held that this statutory section should be construed under

the confines of section 2-1401 of the Code--that a petition filed after two years must

allege legal disability, duress, or fraud to be considered timely. The court held that

since the wife had not sought relief within two years after the entry of the judgment, and

in the absence of legal disability, duress, or fraud, the trial court lacked jurisdiction to

consider the wife's petition for relief and the "new" judgment must be vacated. King,

130 Ill. App. 3d at 654, 474 N.E.2d at 842.

In King, the wife had claimed that her husband's personal injury settlement

proceeds should have been part of the final judgment of dissolution. The court ruled

that because the wife did not request relief until more than two years after the judgment

was entered and because she knew of the lawsuit during the dissolution proceedings,

the trial court had no jurisdiction to modify the judgment absent allegations of legal

disability, duress, or fraud. King, 130 Ill. App. 3d at 654, 474 N.E.2d at 842.

The court in King noted, however, that the provision set forth in section

510(b) of the Act--that courts may reopen a property-division judgment if it finds "the

existence of conditions" that would so justify "under the laws of this State" (750 ILCS

5/510(b) (West 2002))--could provide trial courts the ability to revisit judgments under

the "additional modes of post-30-day relief," not just under section 2-1401 of the Code.

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Those "additional modes" include (1) the application of the revestment doctrine, (2)

finding the judgment is void, (3) by agreement of the parties, or (4) the entry of an order

nunc pro tunc. King, 130 Ill. App. 3d at 655, 474 N.E.2d at 842.

We find, of the above "additional modes," the doctrine of revestment

applies to the case before us. See Adamson, 308 Ill. App. 3d at 767, 721 N.E.2d at 174

(revestment doctrine applies in dissolution cases and outside parameters of Code

section 2-1401 time constraints). "[T]he revestment doctrine allows the parties to revest

a court with jurisdiction when the parties 'actively participate in proceedings which are

inconsistent with the merits of the prior judgment.'" People v. Watkins, 325 Ill. App. 3d

13, 17, 757 N.E.2d 117, 120 (2001), quoting People v. Hubbard, 170 Ill. App. 3d 572,

576, 524 N.E.2d 1263, 1265-66 (1988); People v. Kaeding, 98 Ill. 2d 237, 241, 456

N.E.2d 11, 14 (1983); accord Elmore v. Elmore, 219 Ill. App. 3d 61, 64, 580 N.E.2d 619,

622 (1991).

Once the trial court loses jurisdiction through the passage of 30 days after

the entry of its judgment, it may nevertheless be subsequently revested with jurisdiction

over the cause under the doctrine of revestment. Kaeding, 98 Ill. 2d at 240, 456 N.E.2d

at 14; Adamson, 308 Ill. App. 3d at 766, 721 N.E.2d at 174. "The parties' conduct is

inconsistent with a prior order if the conduct reasonably can be construed as an

indication that the parties do not view the prior order as final and binding." Adamson,

308 Ill. App. 3d at 766, 721 N.E.2d at 174.

Although petitioner, in these proceedings, does not agree that the original

judgment should have been reopened, he does admit that he did not knowingly enter

into an agreement in 1995, and he did not realize a final judgment of dissolution had

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been entered. Only subsequent to his realization that he was originally awarded the

marital home did he seek to enforce the 1995 judgment. He openly admits that he and

respondent lived as if they were married between 1995 and 2001. He admits they

made purchases and acquired debt since 1995. Therefore, despite his opposition to

reopening the judgment, petitioner's conduct between 1995 and 2001 can be construed

as an indication that he, along with respondent, did not view the 1995 judgment as final

and binding. Neither knew the 1995 judgment had been entered.

Other Illinois courts have applied the revestment doctrine in similar

situations. In Adamson, the Second District relied upon the doctrine to affirm the trial

court's judgment, which modified the original final judgment of dissolution entered four

years earlier when the parties had agreed to the modification. Adamson, 308 Ill. App.

3d at 767-68, 721 N.E.2d at 174-75. The court found that the agreement revested the

trial court with jurisdiction despite the passage of more than two years. Adamson, 308

Ill. App. 3d at 767, 721 N.E.2d at 174.

Likewise, the Third District affirmed the trial court's denial of the wife's

petition to vacate a stipulated judgment, which modified the original judgment of

dissolution. Elmore, 219 Ill. App. 3d at 65, 580 N.E.2d at 622. The wife filed her

petition to vacate four years after the modified judgment was entered. Citing section

510(b) of the Act, the wife claimed the modified judgment was void for lack of subject-

matter jurisdiction because there were no allegations that the original judgment was

procured by fraud or coercion or that any facts existed to entitle them to postjudgment

relief under section 2-1401 of the Code. Elmore, 219 Ill. App. 3d at 64, 580 N.E.2d at

621. The trial court ruled that jurisdiction had revested by agreement of both parties.

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The reviewing court agreed, holding that the judgment of modification was binding.

Elmore, 219 Ill. App. 3d at 64-65, 580 N.E.2d at 622.

Judge Carmody entered the July 1995 final judgment of dissolution based

upon the representation that the parties had agreed to the property distribution

presented. Presumably, during the June 2002 hearing, Judge Carmody learned the

parties, in fact, had not agreed to the distribution as presented. Based upon the

apparent misunderstanding, Judge Carmody vacated the 1995 final judgment. We find

the trial court had jurisdiction to do so based upon the doctrine of revestment in light of

the parties' testimony that neither had entered into a property settlement agreement nor

realized the final judgment had been entered.

Respondent testified that she did not agree to any division of property in

1995, never testified in court, did not sign any property settlement agreement, and did

not realize that a final judgment of dissolution had been entered in 1995. Petitioner

likewise testified that he did not realize a final judgment of dissolution had been entered

in 1995. He also stated that the only time he testified in court was related to his request

for temporary possession of the marital home.

The record before us supports the view that Judge Carmody proceeded

under the belief that both parties had discussed and agreed to the terms of a marital

settlement agreement, when, in fact, they had not. Although we are puzzled by the lack

of evidence pertaining to the respective attorney-client relationships between 1995 and

2001, we find the record before us supports Judge Carmody's April 2003 order vacating

the 1995 judgment and redistributing the parties' assets and debt. Because we find

Judge Carmody had jurisdiction to set aside the 1995 final judgment, we affirm Judge

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Lewis's order denying petitioner's "motion to dismiss."

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.

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