2014 IL App (2d) 140373
Ill. App. Ct.2015Background
- Cheri and Donald Little divorced; their dissolution judgment (Oct 10, 2012) incorporated a marital settlement agreement (MSA) in which Donald waived any interest in "Wife’s present or future interest in the marital business, formerly known as D&K Plastics."
- After the divorce, Cheri sued third parties (Feb 15, 2013), alleging she helped form Hydro‑Master and would receive a 40% interest upon completion of the divorce; those allegations suggested Hydro‑Master was formed during the marriage using marital assets and Cheri’s efforts.
- Donald learned of Cheri’s alleged interest in Hydro‑Master only after her post‑dissolution complaint (he alleges discovery on May 1, 2013) and filed a 2‑1401 petition on May 7, 2013 to vacate the MSA, claiming fraud/concealment and entitlement to an equitable share.
- Donald’s petition detailed multiple investigative and discovery efforts during the original proceedings (motions, financial statement reviews, subpoenas, court orders, private investigators) and alleged he relied on Cheri’s in‑court denials (she testified she transferred nothing and only "bring in lunch").
- Cheri moved to dismiss under section 2‑615, arguing Donald failed to plead (1) an ownership interest in Hydro‑Master that could be divided as a marital asset, (2) that he did not waive any interest in the MSA, and (3) that he lacked due diligence in discovery and in filing the 2‑1401 petition.
- The trial court dismissed Donald’s second amended petition with prejudice; Donald appealed and the appellate court reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Donald) | Defendant's Argument (Cheri) | Held |
|---|---|---|---|
| Whether petition alleges a meritorious claim to an interest in Hydro‑Master | Cheri acquired a 40% interest during marriage; that interest is a marital asset divisible under 750 ILCS 5/503(d) | No facts show Cheri had a divisible ownership interest; in any event Donald waived claims in the MSA | Allegations, taken as true, sufficiently plead a meritorious claim to Hydro‑Master interest |
| Whether Donald exercised due diligence in presenting the claim in the original action | He took numerous discovery steps, relied on Cheri’s sworn denials, and reasonably settled based on her testimony | He failed to depose key witnesses and waived bench trial; thus not diligent as a matter of law | Pleaded facts about many investigative steps create at least a question of fact; diligence sufficiently alleged for pleading purposes |
| Whether Donald filed the 2‑1401 petition with due diligence after discovery of the claim | He first learned of Cheri’s Hydro‑Master interest May 1, 2013 and filed petition May 7, 2013 | He was allegedly aware earlier during dissolution, so waiting seven months shows delay | Filing within days of alleged discovery suffices; due diligence in filing was adequately pleaded |
| Whether dismissal under section 2‑615 was appropriate | Petition pleads facts that, if true, would entitle relief under 2‑1401 | Petition fails to state a claim and shows on its face Donald is not entitled to relief | Dismissal under section 2‑615 improper; matter remanded for further proceedings |
Key Cases Cited
- People v. Vincent, 226 Ill. 2d 1 (discussing nature of pleadings and de novo review)
- Ostendorf v. International Harvester Co., 89 Ill. 2d 273 (2‑1401 petition may be dismissed if it either fails to state a claim or shows on its face petitioner is not entitled to relief)
- Lee v. City of Decatur, 256 Ill. App. 3d 192 (questions of fact cannot be resolved on a section 2‑615 motion)
- Khan v. Deutsche Bank AG, 2012 IL 112219 (pleading standard: accept well‑pleaded facts as true and construe in plaintiff’s favor)