Cavitt v. Repel
32 N.E.3d 712
Ill. App. Ct.2015Background
- Mary Cavitt and Steven Repel (never married) are parents of a child; a 1997 judgment (incorporating a 1996 settlement) required Steven to pay $500/month child support to Mary.
- Over the next decade Mary pursued multiple petitions to modify support and extensive discovery alleging Steven hid assets through transfers to spouses and associates; she voluntarily nonsuited a 2000 petition to modify in 2008 and later filed new petitions in 2009–2010.
- On September 29, 2010 Mary filed a section 2-1401 petition to void the 1997 judgment for fraud, alleging Steven concealed income and property (mortgages, quitclaims, partnership status) around the time of the settlement.
- Steven served requests for admission; Mary initially denied many, then changed 12 denials to admissions in open court; Steven moved to dismiss the 2-1401 petition as time-barred and later sought fees under Rule 219 and 750 ILCS 5/508(b).
- The trial court dismissed the 2-1401 petition with prejudice as untimely (Mary had knowledge or a basis to know of the alleged fraud more than two years earlier) and later awarded Steven $31,977.83 in attorney fees and costs for Mary’s discovery misconduct. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2-1401 petition to vacate 1997 judgment for fraud should have survived dismissal | Cavitt: petition pleaded fraudulent concealment and she was entitled to an evidentiary hearing to prove due diligence and concealment | Repel: petition is time-barred; Cavitt judicially admitted knowledge of fraud before the two-year window; no newly discoverable evidence; dismissal appropriate | Court: Dismissal affirmed — petition was untimely (Mary had knowledge/possible claim >2 years before filing) and pled only conclusory fraud allegations |
| Whether trial court erred by not holding an evidentiary hearing on §2-1401 petition | Cavitt: factual disputes required hearing on due diligence and concealment | Repel: hearing not required where judicial admissions and record show lack of diligence | Court: No error — judicial admissions and record obviated need for an evidentiary hearing |
| Whether fees should be imposed and which statutory provision applies | Cavitt: fees should be governed by §508(a) (requires considering parties’ finances); trial court erred using §508(b) and Rule 219 without weighing incomes | Repel: fees proper under §508(b) and Rule 219 for discovery noncompliance and false denials; no income balancing required under §508(b) | Court: Fees affirmed under §508(b) and Rule 219(b) — Mary’s conduct (changing denials to admissions; noncompliance) warranted mandatory fee award without income balancing |
| Whether fee amount was unreasonable or supported by record | Cavitt: billing entries show overbilling; court blocked some financial evidence about Repel’s ability to pay | Repel: billing supported; court reduced requested amount and vetted entries at hearing | Court: No abuse of discretion — court reduced requested fees, found hourly rate reasonable, and Mary had ample opportunity to challenge billing |
Key Cases Cited
- In re Marriage of Buck, 318 Ill. App. 3d 489 (2000) (section 2-1401 standard; new evidence must be such that it could not reasonably have been discovered earlier)
- In re Marriage of Himmel, 285 Ill. App. 3d 145 (1996) (elements for proving fraudulent concealment under §2-1401)
- Dremco, Inc. v. Hartz Construction Co., 261 Ill. App. 3d 531 (1994) (judicial admissions dispense with proof of the admitted facts)
- In re N.B., 191 Ill. 2d 338 (2000) (appellate presumption that trial court knows and applies law correctly)
- J.B. Esker & Sons, Inc. v. Cle-Pa’s Partnership, 325 Ill. App. 3d 276 (2001) (factors for reasonableness of attorney fees)