dissenting:
Because I find the trial court abused its discretion in this case, I dissent. I disagree that the facts alleged by James, and allegedly conceded to by Erika, were a sufficient basis for granting James’ section 2—1401 petition.
According to the parties; the trial court granted James relief because the undisputed facts showed (1) that Erika and her attorney, Dean Stone, “misrepresented” the burden of proof required to modify or change the custody arrangement reflected in the joint parenting agreement, and (2) that Erika and Stone misrepresented to James that child support obligations would be postponed until he finished school. James asserts the first “misrepresentation” resulted in a unilateral mistake on his part. James does not appear to be arguing these alleged misrepresentations were intentionally made at the time the agreement was signed and the judgment entered. The trial court held it did not need to hold an evidentiary hearing, in that the court could base its decision on the facts agreed to by the parties. Therefore, our review is limited to whether these “agreed-to facts” support the trial court’s decision.
The majority finds that the trial court did not abuse its discretion in granting the petition because (1) the parties were misinformed about the legal effect of the written judgment, i.e., the burden of proof required to be satisfied for a change of custody, and (2) the written agreement violated the understanding of both parties in regard to the removal of the child to Texas and the abatement of child support payments.
The purpose of a petition under section 2 — 1401 is to bring before a court matters of fact which were unknown at the time the judgment was entered, and if known, would have affected or altered the judgment that was entered. (In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 580 N.E.2d 1186.) To be entitled to relief under section 2— 1401, the party seeking relief must show by a preponderance of the evidence that: (1) a meritorious claim or defense exists; (2) the petitioner exercised due diligence in discovering the defense or claim in the original action; (3) despite such diligence and through no fault on the part of the petitioner, the error of fact or valid claim or defense was not made apparent to the trial court at the time of the original action; and (4) the petitioner exercised due diligence in pursuing section 2—1401 relief. In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 580 N.E.2d 1186.
I do not believe the alleged “misrepresentation” concerning the burden of proof is a misrepresentation of fact sufficient to grant a petition brought under section 2 — 1401. (I find this is more appropriately termed an omission rather than a misrepresentation. There was apparently no discussion of burdens of proof.) Dean Stone was representing Erika. James chose to proceed pro se. Stone explained to the parties the written agreement’s custody provisions. Stone apparently made reference to the fact the parties could go to court if any disagreements developed on the issue of custody. This of course is true. Stone did not discuss the burden of proof if a subsequent change was sought in court. But why would he? No litigation on this issue was contemplated at that time. Besides, Stone was representing Erika, not James. I don’t believe there was any obligation on the part of Stone to advise a party he is not representing of what the burden of proof might be if that party chose to pursue some theoretical litigation at some theoretical time in the future. (See Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96 (as a general rule the obligation of an attorney is to his client and not a third party); Gold v. Vasileff (1987), 160 Ill. App. 3d 125, 513 N.E.2d 446 (attorney had no fiduciary duty to nonclient).) In addition, which burden of proof should Stone have discussed, i.e., that which applied in the first two years after judgment, or the burden thereafter?
Secondly, what does the burden of proof in possible future litigation have to do with what the parties agreed to concerning custody of their child? Stone apparently reviewed the written agreement and its terms with Erika and James. Erika has not conceded to any fact alleged by James showing the judgment entered did not reflect the agreement of the parties on the issue of custody as of the day the judgment was entered. The parties may have disagreed subsequently as to their rights and obligations under the agreement. However, this, in and of itself, does not demonstrate grounds for relief under section 2—1401. Section 2—1401 is available for relief based on matters which antedate the rendition of the judgment and not those which arise subsequent to its rendition. See Gimroth v. Ray (1981), 98 Ill. App. 3d 633, 424 N.E.2d 934.
In any event, these facts do not demonstrate a mutual mistake on the part of the parties vis-a-vis the terms of the joint parenting agreement. These facts do not show the parties were misinformed about the legal effect of the written judgment. In sum, I find the fact that Stone did not advise James on what the burden of proof would be if he chose to pursue a theoretical action at some future date is an insufficient ground for granting the section 2 — 1401 petition and vacating the joint parenting agreement.
All other factual assertions raised by James in support of his request to vacate the joint parenting agreement portion of the judgment were controverted by Erika. Therefore, an evidentiary hearing would have to be held to determine if any of these factual assertions demonstrated grounds for relief from the custody portion of the judgment.
The majority relies on the fact that the joint parenting agreement does not mention removal of the child to Texas as demonstrating the written agreement did not reflect the understanding of the parties. The trial court did not make a finding to this effect. James does not argue this was a basis for granting his petition. Again, there was no evidentiary hearing on any controverted fact. In addition, this is a fact which developed subsequent to the entry of judgment and therefore cannot serve as the basis for relief. Gimroth v. Ray (1981), 98 Ill. App. 3d 633, 424 N.E.2d 934.
On the issue of abatement of child support payments, it appears Erika only attempted to enforce the written provisions of the agreement after James filed his section 2 — 1401 action. This is not evidence that Erika and her attorney attempted to mislead James at the time the judgment was entered into.
Secondly, at the time the judgment was entered, James did not raise the fact that the written documents were at variance with the alleged verbal understanding of the parties. There is a real question of whether James was diligent in raising this issue in the original proceedings. Why did he not require the abatement agreement be included in the written agreement? If he knew such an abatement was unenforceable and therefore went along with leaving it out of the written agreement, how can he now raise this fact as a basis for relief? In any event, this issue involves only the child support provisions of the judgment and cannot support vacating the portion of the judgment concerning custody.