In re Marriage of Dabrowska , 2022 IL App (1st) 211195-U ( 2022 )

2022 IL App (1st) 211195-UNo. 1-21-1195
Filed June 9, 2022
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re MARRIAGE OF ) Appeal from the
URSZULA DABROWSKA, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
) No. 17 D 8885
and )
)
JACEK DABROWSKI, ) Honorable
) David E. Haracz,
Respondent-Appellant. ) Judge, Presiding
JUSTICE MARTIN delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: We lack jurisdiction to review the circuit court’s denial of respondent’s petition for
relief from judgment.
¶2 Jacek Dabrowski appeals from an order denying his petition for relief from judgment filed
pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). The
petition sought to vacate the maintenance requirement of a judgment of dissolution of marriage.
The circuit court denied the petition following an evidentiary hearing. However, neither a notice
No. 1-21-1195
of appeal nor a postjudgment motion were filed within 30 days of the entry of judgment.
Accordingly, we dismiss this appeal for lack of jurisdiction. 1
¶3 I. BACKGROUND
¶4 Jacek and Urszula were married in Poland in 1996.2 On October 31, 2017, the circuit court
entered a judgment of dissolution of marriage that incorporated a marital settlement agreement
(MSA) signed by both parties. A term of the MSA required that Jacek pay Urszula maintenance
of $1600 per month until either of them die or until Urszula remarries or cohabitates with another
person. The MSA also called for Jacek to pay child support for each of their two teenage children
until the later of reaching age 18 or graduating from high school. Urszula was represented by
counsel while Jacek acted pro se in these proceedings.
¶5 In January 2019, Jacek filed, through counsel, a “Petition to Partially Vacate Judgement
Entered October 31, 2017.” In the petition, Jacek claimed that he has limited understanding of
English, that he did not understand that the lawyer who prepared the MSA he signed was
representing only Urszula’s interests, and that the terms of the MSA were not explained to him.
He understood he had some obligation to make payments, but believed it was temporary and only
related to child support. He claimed that he never agreed to pay maintenance and was not aware
of the obligation until he sought counsel in the later part of 2018. Jacek went on to claim that
Urszula exploited his limited understanding of English to conceal the maintenance obligation, that
the $1600 per month amount is onerous for him, and the term is unconscionable. For relief, the
petition requested, inter alia, that the provisions relating to maintenance in the judgment of
dissolution be vacated. It further requested that the court either permanently bar maintenance or
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
2
We use the parties first names for clarity.
-2-
No. 1-21-1195
conduct a hearing to determine a fair maintenance amount. Jacek cited section 2-1401 as the legal
basis to file his petition. 735 ILCS 5/2-1401 (West 2016). Urszula filed a timely answer denying
Jacek’s allegations. In November 2019, Jacek filed an amended petition captioned “Amended
Petition to Partially Vacate Judgment Entered October 31, 2017 and Modify Allocation.” The
amended petition contained the same allegations and requests for relief as the initial petition. It
added, as an alternative to the other requested relief, that the court modify his maintenance
obligation.
¶6 The matter eventually proceeded to an evidentiary hearing. Following that hearing, the
circuit court entered a written order on March 4, 2021, denying Jacek’s petition. The order
contained the following findings of the court:
“A. A Judgment for Dissolution of Marriage (“Judgment”) which incorporated a
Marital Settlement Agreement (“MSA”) was entered on October 31, 2017. The
Judgment and MSA was signed and initialed by both parties;
B. On January 22, 2019, [Jacek] filed a Petition to Partially Vacate Judgement (sic)
Entered October 31, 2017 addressing mainly the maintenance provisions of the
judgment. The Petition did not contain an affidavit from [Jacek];
C. On November 7, 2019, [Jacek] filed an Amended Petition to Partially Vacate
Judgement (sic) Entered October 31, 2017 and Modify Allocation addressing the
maintenance provisions of the judgment. The Petition did not contain an affidavit
from [Jacek];
D. After the Judgment was entered, [Jacek] complied with the terms of the MSA by
paying approximately 11 months of maintenance. Three months after unilaterally
terminating his maintenance, [Jacek] filed his Petition to Vacate;
-3-
No. 1-21-1195
E. [Jacek’s] testimony was not wholly credible. [Jacek] failed to show diligence
in presenting his claim or in filing his 2-1401 petition[.]”
¶7 The case was continued to March 12 for a status conference on other pending matters. On
March 16, 2021, the court entered an order stating that, after a hearing on March 12, the court
found that Jacek’s amended petition filed in November 2019 was “not properly filed to be
considered as a Motion to Modify Maintenance.” The order further stated that Jacek remained
obligated to make maintenance payments as provided in the MSA.
¶8 On April 15, 2021, Jacek filed a motion to reconsider the court’s March 16 order or, in the
alternative, to modify maintenance. The motion argued that Jacek’s initial petition did, contrary to
the court’s March 4 finding, contain his affidavit. It went on to argue that the maintenance
provisions were improper for various reasons. Lastly, the motion noted the alternative request to
modify maintenance in the amended petition. Jacek asked the court to consider his earlier filed
petitions as motions to modify maintenance, since he had requested modification of his
maintenance obligation in those filings. Urszula filed a response opposing Jacek’s motion to
reconsider.
¶9 In an order entered June 30, 2021, the court denied Jacek’s motion to reconsider. The court
also expressly denied Jacek’s request to consider his amended petition to vacate judgment as a
motion to modify maintenance. However, the court granted Jacek leave to file a motion to modify
maintenance, and, on July 16, 2021, Jacek filed such a motion.
¶ 10 On July 30, 2021, Jacek filed a notice of appeal from the circuit court’s order denying his
motion to reconsider denial of his section 2-1401 petition to vacate judgment.3
3
The notice of appeal and the amended notice of appeal filed Nov. 23, 2021, indicate that Jacek is
appealing an order dated “7/30/2021.” The circuit court did not enter any orders on July 30, 2021. Rather,
that is the date Jacek filed his initial notice of appeal. We assume this was a typographical error and June
-4-
No. 1-21-1195
¶ 11 II. ANALYSIS
¶ 12 Urszula argues that Jacek’s notice of appeal was untimely and, as such, did not invoke this
court’s jurisdiction.4 We have an independent duty to consider our own jurisdiction. People v. Hill,
2021 IL App (1st) 131973-B, ¶ 14. The timely filing of a notice of appeal is both mandatory and
jurisdictional. Joseph v. Evergreen Motors, Inc., 2019 IL App (1st) 180360, ¶ 19. “Unless there is
a properly filed notice of appeal, a reviewing court has no jurisdiction over the appeal and is
obliged to dismiss it.” People v. Smith, 228 Ill. 2d 95, 104 (2008).
¶ 13 The matter that Jacek ultimately seeks to appeal is the denial of his petition filed pursuant
to Section 2-1401. Section 2-1401 allows a litigant to petition for relief from a final judgment after
30 days from its entry. 735 ILCS 5/2-1401(a) (West 2016). Section 2-1401 is ordinarily used to
bring facts to the attention of the trial court that, if known at the time of judgment, would have
precluded its entry. Paul v. Gerald Adelman & Assoc., Ltd., 223 Ill. 2d 85, 94 (2006). A petition
brought under section 2-1401 must set forth allegations supporting the existence of a meritorious
claim or defense; due diligence in presenting the claim or defense to the circuit court in the original
action; and due diligence in filing the petition. Id. To prevail, a petitioner must establish these
elements by a preponderance of the evidence. Id. at 95.
¶ 14 A section 2-1401 petition, however, is a separate action, independent from the original
action. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. A
final order disposing of a section 2-1401 petition is appealable without any special finding by the
trial court. Ill. S. Ct. R. 304(b) (eff. Mar. 8, 2016). A timely filed motion to reconsider the court’s
ruling on a section 2-1401 petition extends the time to file a notice of appeal to 30 days after the
30, 2021, was intended. The substantive description of the order Jacek seeks to appeal clearly points to the
court’s order of June 30, 2021.
4
The appellant’s reply brief was due on March 29, 2022. Neither a reply brief nor request for
extension were filed in this court. The case was submitted for decision on April 13, 2022.
-5-
No. 1-21-1195
entry of the order disposing of the motion to reconsider. Harris Bank, N.A. v. Harris, 2015 IL App
(1st) 133017, ¶¶ 42-46 (finding that a motion to reconsider the denial of a section 2-1401 petition
is a motion directed against the judgment, which tolls the time to file a notice of appeal under
Illinois Supreme Court Rule 303(a)(1)).
¶ 15 The motion to reconsider the trial court’s denial of Jacek’s section 2-1401 petition,
however, was not timely filed. The court entered an order denying the petition on March 4, 2021.
That was a final judgment. To challenge the judgment, Jacek needed to either file a notice of appeal
or a motion to reconsider within 30 days from March 4. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017);
735 ILCS 5/2-1203(a) (West 2016). The motion to reconsider, here, was filed on April 15, 2021,
more than 30 days later.
¶ 16 Jacek’s motion to reconsider referred to the court’s March 16 order, but, in substance,
addressed the matters decided on March 4. The March 16 order did not rule on his section 2-1401
petition. As we noted, that ruling occurred on March 4. The March 16 order merely stated that
Jacek’s petition did not constitute a motion to modify maintenance. It is unclear from the record
before us what prompted the court to state this in its order. Jacek had not filed any written pleading
between the March 4 order and the March 12 hearing referenced in the March 16 order. No
transcript, bystander’s report, or agreed statement of facts has been supplied for us to ascertain
what transpired. See Ill. S. Ct. R. 323 (eff. July 1, 2017). In any event, the March 16 order did not
extend the time to file a notice of appeal such that Jacek’s April 15 motion to reconsider or his
July 30 notice of appeal were timely. The March 16 order was not a judgment on the section 2-1401
petition, the March 4 order was. At most, the March 16 order may have constituted the denial of
an oral motion to reconsider raised in the March 12 hearing. If so, then Jacek’s time to file a notice
of appeal would have concluded on April 16, 2021. Yet, even under that scenario, he could not file
-6-
No. 1-21-1195
another motion to reconsider. People v. Miraglia, 323 Ill. App. 3d 199, 205-06 (2001). Thus, the
circuit court lacked jurisdiction to hear Jacek’s April 15 motion to reconsider. See Won v. Grant
Park 2, LLC, 2013 IL App (1st) 122523, ¶ 20 (“the trial court loses jurisdiction after 30 days from
the time the final judgment is entered when either (1) a posttrial motion directed against the
judgment is not filed, (2) 30 days pass from the time the trial court disposes of a timely filed
posttrial motion, or (3) a notice of appeal is timely filed.”).
¶ 17 We recognize that, under some circumstances, parties can revest the circuit court with
jurisdiction to hear an untimely motion. See People v. Bailey, 2014 IL 114459, ¶ 25. However,
those circumstances were not present here. Revestment requires that both parties “assert positions
that make the proceedings inconsistent with the merits of the prior judgment and support the setting
aside of at least part of that judgment.” Id. Nothing in the record suggests that Urszula asserted a
position inconsistent with the prior judgment and sought for any part of that judgment to be set
aside. Rather, the opposite is apparent.
¶ 18 III. CONCLUSION
¶ 19 For these reasons, we find that we lack jurisdiction and dismiss the appeal.
¶ 20 Appeal dismissed.
-7-