In re Marriage of Onishi-Chong

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Appellate Court Date: 2020.10.19
09:48:16 -05'00'
In re Marriage of Onishi-Chong, 2020 IL App (2d) 180824
Appellate Court In re MARRIAGE OF KAREN I. ONISHI-CHONG, Petitioner-
Caption Appellant, and MICHAEL T. CHONG, Respondent-Appellee.
District & No. Second District
Nos. 2-18-0824, 2-18-1015 cons.
Filed February 20, 2020
Rehearing denied March 18, 2020
Decision Under Appeal from the Circuit Court of Du Page County, No. 12-D-1741; the
Review Hon. Timothy J. McJoynt, Judge, presiding.
Judgment Affirmed.
Counsel on Robert H. Lang and Audrey Mense, of Thompson Coburn LLP, of
Appeal Chicago, and Todd D. Scalzo, of Mirabella, Kincaid, Frederick &
Mirabella, LLC, of Wheaton, for appellant.
Steven N. Peskind, of Peskind Law Firm, of St. Charles, for appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Birkett and Justice Zenoff concurred in the judgment
and opinion.
OPINION
¶1 Petitioner, Karen I. Onishi-Chong, filed a petition pursuant to section 2-1401 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)) to set aside a marital settlement
agreement (MSA) based on the alleged fraudulent concealment of a purported scheme to
reduce the salary of respondent, Michael T. Chong, while their divorce was pending. During
their marriage, respondent, who was a 50% owner of Voyage Financial Group, LLC (Voyage),
equally split the profits with his partner, Thomas Royce. Petitioner alleged that, after the
dissolution judgment, she discovered that respondent had misrepresented his actual income
during the divorce proceedings and colluded with his partner to conceal his income to reduce
maintenance and support. She sought to vacate the decree or alternatively to reset maintenance
retroactively to the date of the dissolution judgment.
¶2 Respondent filed a motion for summary judgment to dismiss the section 2-1401 petition
pursuant to section 2-1005 of the Code (id. § 2-1005), arguing that petitioner failed to exert due
diligence and that the claim was barred under the doctrine of res judicata. The trial court
granted respondent’s motion for summary judgment, determining that, if petitioner had been
lied to during the pretrial, the prove-up, or some time earlier, this was discoverable by
petitioner if she chose to pursue it, but she did not. Petitioner appeals, raising several
arguments. We affirm.
¶3 I. BACKGROUND
¶4 A. Divorce Proceeding
¶5 Petitioner filed for divorce in August 2012. The parties litigated their divorce for a period
of approximately 22 months. Throughout the proceedings the parties engaged in full
discovery. Petitioner served respondent with interrogatories and document requests for records
related to his income, assets, and debts. Among those documents were records from Voyage, a
financial planning firm. Petitioner needed these records to establish respondent’s income for
the purpose of maintenance and child support. 1 Respondent represented that he was earning
$240,000 to $365,000 per year from 2012 through 2014.
¶6 On April 14, 2014, petitioner tendered to the trial court a pretrial memorandum, which we
observe petitioner omitted from her statement of facts. Petitioner alleged in the memorandum
that respondent “intentionally reduced his 2012 and 2013 income due to the pending divorce”
and that she believed his annual income had been $518,235. Her conclusion was based on the
following reasoning:
“In 2006, Michael and his business partner Thomas Royce founded Voyage
Financial Group, LLC, a company that assists Kraft Food employees [with] their
retirement benefits after the employee has left Kraft. Michael and Thomas each own
50% of the business. Pursuant to Voyage’s operating agreement, Michael and Thomas
each received equal compensation from the company through 2011. *** Interestingly,
in 2012, the same year in which Karen filed for divorce, Michael’s income suddenly
diverged from Thomas’ income resulting in a difference of $25,798. *** Again in 2013
1
At the time the judgment for divorce was entered, the amount of child support remained pending.
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while the parties’ divorce was still pending, Michael and Thomas’ income differed by
$196,669. Not only is Michael’s income lower than Thomas’ income, Michael’s
income is also lower than other financial managers at Voyage, even though Michael is
a 50% owner of the company.
Despite repeated discovery requests, Michael has not been able to provide any
corporation meeting minutes or intraoffice memorandum explaining this divergence in
Michael and Thomas’ income. Based on the divergence coinciding with the filing and
pendency of her petition for dissolution, Karen believes Michael intentionally reduced
his income in order to reduce maintenance and child support. Consequently, Karen
believes Michael’s 2013 income to be around $518,235.00 (assigning to Michael half
of the difference between Michael and Thomas’ 2013 income).”
¶7 Petitioner also sought half the value of respondent’s ownership interest in Voyage. She
noted that a joint valuation of Voyage had been conducted by Lee Gould of Lee Gould &
Associates. He was a joint valuation expert, retained by both parties to value Voyage, who had
provided the parties’ attorneys a brief summary of his valuation calculations.
¶8 After engaging in full discovery, including the use of Gould, the parties settled the
dissolution proceedings by agreement. Petitioner states in her appellate brief that relying on
respondent’s and Royce’s representations, she “voluntarily entered into the marital settlement
agreement [MSA] in April of 2014.” In part, the parties’ MSA requires respondent to pay
petitioner unallocated family support of $12,500 per month for a period of 54 months, or
$150,000 per year.
¶9 At the prove-up hearing on April 16, 2014, the following colloquy took place between
respondent’s attorney, Mark Farrow, and both parties:
“MR. FARROW: Based upon the discovery conducted, you are both satisfied that
there has been a full and complete disclosure of income, assets, and liabilities; and as of
today you are directing our office to conduct no further discovery in this case; is that
correct?
PETITIONER: Yes.
RESPONDENT: Yes.
MR. FARROW: Is it your mutual intention to waive all claims of dissipation of
assets, concealment of assets, and reimbursement of the marital estate; is that right?
PETITIONER: Yes.
RESPONDENT: Yes.”
¶ 10 The terms of settlement were set forth at the prove-up on April 16, 2014. The trial court
approved the MSA, which was later incorporated into the judgment of dissolution, entered on
May 13, 2014. In subsequently denying petitioner’s section 2-1401 petition, the court
commented that the April 16, 2014, hearing addressed respondent’s income and that the MSA
was silent as to that issue.
¶ 11 The MSA provides, in relevant part, as follows:
“G. *** The parties represent that they have disclosed to each other all information
with respect to their income, assets and debts. The parties acknowledge that each has
been fully informed of and is conversant with the wealth, property, estate and income
of the other and that each has been fully informed of his and her respective rights in the
premises.
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H. The parties further acknowledge their respective rights to conduct discovery
depositions, valuations, request financial information from the other party by way of
interrogatories, requests to admit, requests to produce documents, to subpoena
witnesses to testify and to produce documents, and to have a full trial on the merits of
this action. Each party acknowledges his or her respective express and voluntary
waiver of his or her right to pursue additional discovery which has not yet been
conducted in connection with this cause. Each party has directed his or her respective
counsel to discontinue any additional discovery or asset valuations, and each party
hereby stipulates that he or she is fully aware of the consequences of this decision.”
¶ 12 B. Section 2-1401 Proceeding
¶ 13 On May 10, 2016, petitioner filed a motion pursuant to section 2-1401, alleging that
respondent secreted his actual income and conspired with Royce to shelter his income from the
divorce. As stated, petitioner sought to vacate the divorce decree or alternatively to reset
maintenance retroactively to the date of the divorce. 2
¶ 14 Petitioner alleged that she was operating under the erroneous belief that respondent’s gross
income from his employment was approximately $240,000 per year. She claimed upon
information and belief that, during the divorce proceedings, respondent was actually earning
more income than he represented and that he was therefore “grossly” underpaying
maintenance. Petitioner alleged that, immediately after the judgment, respondent began living
well beyond the means of someone with an annual gross compensation of $240,000 but also
paying $150,000 of annual maintenance. She alleged that respondent rented and furnished a
5400-square-foot home, began taking expensive trips, bought a number of expensive gifts for
the children, was planning the marriage to a second wife with all the related expenses, and
bought two new SUVs and a Ferrari. Petitioner alleged that she justifiably relied on
respondent’s misrepresentations, given the parties’ discovery and respondent’s status as a
financial planner. Petitioner further alleged that on April 25, 2016, she demanded information
from respondent related to his compensation, and, thereafter, he failed and refused to produce
any information to her, which supported only an inference that respondent and Royce engaged
in misconduct.
¶ 15 Petitioner claimed that respondent and Royce “trued up” (the True-Up Scheme)
respondent’s underreported compensation that he earned during the proceedings. Prior to
2012, Royce and respondent had split their Voyage earnings but, beginning in 2012 when
petitioner filed for divorce, they diverted payment from respondent to Royce under the guise of
an “origination-based” compensation system. She alleged that Royce and respondent used this
system until the MSA was executed, at which point the structure flipped, and respondent began
earning significantly more than Royce. Petitioner alleged that this flipped structure, which was
contrary to respondent’s pre-MSA representations to petitioner, Gould, and others, stayed in
2
After petitioner filed a section 2-1401 petition, she filed a complaint at law in the Du Page County
circuit court, seeking compensatory and punitive damages against respondent; his partner, Royce; and
Voyage (No. 16-D-416). Defendants sought dismissal of the law division case. The trial court
dismissed respondent with prejudice but dismissed Royce and Voyage without prejudice and stayed the
proceeding until the section 2-1401 matter is resolved.
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place until 2016, when petitioner filed her section 2-1401 petition, at which point respondent
and Royce reverted to their 50/50 split. “In other words, upon information and belief,
[respondent] and Royce increased [respondent’s] annual compensation following the
Judgment to more than he was entitled for those years to make up to [respondent] the amount
that he was under paid preceding the Judgment.” Petitioner argued that, when deposed about
this True-Up Scheme in 2018, respondent abandoned the story that Royce and he told during
the divorce—that Royce started to make more than respondent in 2012 because Royce
originated more clients—and claimed that he and Royce were compensated based on the
number of hours worked.
¶ 16 Petitioner noted that respondent’s January 2014 answers to interrogatories represented to
her that he was making $20,000 per month at that time, and at no point during the divorce
proceedings did respondent amend or supplement those answers. She later learned, however,
that Voyage’s own records showed that respondent started making $32,000 per month in April
2014, the month the MSA was executed and a month before the entry of the judgment. In 2018,
petitioner deposed respondent’s divorce attorney, who testified that he did not know of the
increase in respondent’s compensation in April 2014 and that he would have amended
respondent’s answers to interrogatories had he known.
¶ 17 Petitioner further alleged that the True-Up Scheme was not the only way respondent and
Royce defrauded her. First, respondent and Royce represented to her, Gould, and others during
the divorce that Voyage’s growth was declining. Petitioner claimed that this was untrue, as she
discovered in 2017 and 2018. She stated that from 2012 to 2014, Voyage’s gross revenues
grew from $1.848 million to $2.6 million and both respondent and Royce projected strong
growth for the foreseeable future. Second, because they were making so much more money
through Voyage, respondent and Royce took advantage of a variety of highly questionable tax
shelters to shield their growing income from petitioner, including investing in conservative
easements and creating a sham corporation through which they funneled $210,000 to Royce’s
wife, even though she performed little to no work for Voyage.
¶ 18 Petitioner alleged that in 2014, at the time the parties were finalizing their divorce, the vast
majority of the evidence proving respondent’s fraud did not exist on paper, as respondent was
still earning less than Royce consistent with their origination-based earnings system. Petitioner
alleged that if any evidence of respondent’s plans to flip the payment structure postdivorce
existed at that time, respondent and Royce fraudulently concealed it. Petitioner claimed that
she undertook “herculean efforts” to reveal the lie. She stated that the concealment forced her
to depose not only respondent but also Royce, Royce’s wife, Voyage employees, respondent’s
fiancée, Voyage’s accountant, respondent’s divorce attorney, and the representative of one of
Voyage’s business partners. Petitioner also served document requests on respondent, Royce,
and Voyage, seeking relevant records dating back to 2012. They allegedly produced only four
e-mails collectively, despite having been ordered to comply with petitioner’s discovery.
Petitioner alleged that she was forced to subpoena records from numerous third parties to
gather information. Petitioner also alleged that she learned that respondent had wrongfully
withheld financial projections regarding Voyage during the divorce, even though she and
Gould specifically requested such documents prior to entering into the MSA.
¶ 19 Prior to filing the section 2-1401 petition, on April 25, 2016, petitioner also served an
evidence preservation demand on respondent’s attorney, who testified that he provided copies
to respondent and Royce. However, respondent stated in his deposition that he “continually
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deleted [his] emails” throughout the course of the litigation. Thus, petitioner alleges that
throughout the divorce proceedings and the section 2-1401 proceedings, respondent and Royce
had withheld, hid, and destroyed evidence. Petitioner filed a spoliation motion seeking redress
for respondent’s, Royce’s, and Voyage’s destruction and withholding of evidence.
¶ 20 In response to the section 2-1401 petition, respondent filed a combined motion to dismiss
pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2016)),
which the trial court denied. Respondent then filed a motion for summary judgment. Petitioner
argued, inter alia, that the motion was premature in light of ongoing discovery.
¶ 21 In support of the motion for summary judgment, respondent noted that, “after two years of
extensive discovery including approximately forty (40) subpoenas, dozens of hours of
depositions, review of all economic transactions for [respondent], [Royce] and Voyage, and
review of thousands of emails, [petitioner] can only advance speculative theories and innuendo
and has presented no concrete evidence of any fraud.” Respondent claimed that compensation
at Voyage was based on contribution to the firm, which was investigated and discussed at
length by petitioner, her attorneys, Gould, and petitioner’s own expert prior to her accepting
the settlement. Respondent pointed out that, in her April 10, 2018, deposition, petitioner
reiterated that she had these suspicions before the divorce. He maintained that it was not a
coincidence that his income decreased and his professional production and contribution
suffered when his time and energy were consumed by an acrimonious divorce. He noted that
both his and Royce’s income have fluctuated in the past and would likely continue to do so into
the future.
¶ 22 Arguing that there was simply no merit to prolonging the litigation, respondent noted that
he agreed to pay $12,500 per month at the time of the divorce. Petitioner raised the same claim
regarding respondent’s and Royce’s alleged scheme and sought to impute income to
respondent at the time. He pointed out that petitioner is a licensed optometrist. If the court used
the average of his and Royce’s income for 2012 and 2013 (the years they diverged),
respondent’s income would have been $454,313 in 2012 and $469,886 in 2013. Further,
averaging those two years ($462,099) and applying the current guidelines, the amount of the
monthly maintenance would be $11,552 per month, nearly $1000 less than the amount
respondent had agreed to pay at the time of the divorce. “And it would be far less if the court
imputed $100,000, the sum a licensed Doctor of Optometry can earn.”
¶ 23 On June 1, 2018, following argument, the trial court granted respondent summary
judgment, concluding, inter alia, that “If Gould and [respondent] and Royce all lied to
[petitioner] and her attorneys at the pretrial, at the prove-up, or at some earlier time, all this was
discoverable by [petitioner] if she chose to pursue it. She did not. [Petitioner] proved up.” The
trial court did not rule on the spoliation motion, deeming it a separate issue.
¶ 24 Petitioner filed a motion to reconsider the trial court’s grant of summary judgment. The
court heard arguments on the motion to reconsider and the spoliation motion and denied both
on September 18, 2018. Petitioner appealed the order granting summary judgment on October
9, 2018. She appealed the order denying her spoliation motion on December 10, 2018, six days
after the trial court entered an order finding that its ruling on the motion was final and
appealable under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). We consolidated the
appeals for review.
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¶ 25 II. ANALYSIS
¶ 26 A. Section 2-1401 Petition
¶ 27 Petitioner appeals the trial court’s grant of summary judgment in favor of respondent on
her section 2-1401 petition, in which she challenges the validity of the MSA.
¶ 28 Judgments for dissolution of marriage are afforded the same degree of finality as
judgments in any other proceeding, even where they incorporate an MSA. King v. King, 130
Ill. App. 3d 642, 654-55 (1985). In order to challenge the validity of an MSA beyond 30 days
of the entry of judgment, a party must bring a petition pursuant to section 2-1401 or other
method of postjudgment relief. In re Marriage of Himmel, 285 Ill. App. 3d 145, 149-51 (1996).
The purpose of a section 2-1401 petition is to bring before the court facts not appearing in the
record, which, if known at the time of the entry of judgment, would have prevented its
rendition. In re Marriage of Broday, 256 Ill. App. 3d 699, 705 (1993). “Courts apply this
section with the aim of achieving justice, not to give the litigant ‘a new opportunity to do that
which should have been done in an earlier proceeding’ or to relieve the litigant ‘of the
consequences of his mistake or negligence.’ ” Id. (quoting In re Marriage of Travlos, 218 Ill.
App. 3d 1030, 1035 (1991)).
¶ 29 Section 2-1401 of the Code “authoriz[es] a trial court to vacate or modify a final order or
judgment in civil and criminal proceedings.” Warren County Soil & Water Conservation
District v. Walters, 2015 IL 117783, ¶ 31. Section 2-1401 petitions must be “supported by
affidavit or other appropriate showing for matters not of record.” Id. “[A] section 2-1401
petition can present either a factual or legal challenge to a final judgment or order.” Id.
¶ 30 Petitioner asserts that the trial court erred in granting respondent’s summary judgment
motion to dismiss her section 2-1401 petition and that our standard of review is de novo.
Summary judgment is proper where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). The trial
court may grant summary judgment after considering “the pleadings, depositions, admissions,
exhibits, and affidavits on file in the case” and construing that evidence in favor of the
nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). A defendant moving for
summary judgment may meet its burden of production either by presenting evidence that, left
unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff
will be unable to prove an element of its cause of action. Bourgonje v. Machev, 362 Ill. App. 3d
984, 994 (2005).
¶ 31 The supreme court has held that “the nature of the challenge presented in a section 2-1401
petition is critical because it dictates the proper standard of review on appeal.” Warren County
Soil & Water Conservation District, 2015 IL 117783, ¶ 31. In this case, petitioner’s section
2-1401 petition was dismissed on the basis of summary judgment. Accordingly, because the
dismissal was based on a legal challenge, we agree that our review is de novo. See Rockford
Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 331 (2010) (Jorgensen, J., specially
concurring) (citing People v. Vincent, 226 Ill. 2d 1, 18 (2007)).
¶ 32 We initially address petitioner’s argument that the trial court erred in relying on two
inadmissible documents. First, she argues that the pretrial memorandum was inadmissible as
an offer of settlement. Respondent counters that merely because petitioner inserted a
settlement demand in her memorandum, this would not contaminate the entire document.
However, here the relevant portion of the memorandum regarding respondent’s income was
petitioner’s attempt to establish the basic facts and theory of the case, not to make a demand for
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settlement. As respondent points out, Du Page County Circuit Court Rule 15.18(c) compels
litigants to include in their memoranda any suggestions for settlement. Du Page County Cir.
Ct. R. 15.18(c). Petitioner’s admission of her suspicions about respondent’s income was not an
offer to compromise. Rather, it was used to alert the trial court to the relevant contentions for
trial and was in no way included as part of an offer of settlement.
¶ 33 Second, petitioner argues that the trial court erred by relying on the “settlement
memorandum,” as it was inadmissible evidence of a settlement at trial in violation of Illinois
Rule of Evidence 408 (eff. Jan. 1, 2011). Respondent notes that, even assuming arguendo that
the relevant statements found in petitioner’s memorandum were “settlement offers,” under the
rule, they were still properly considered by the trial court. Rule of Evidence 408(a) states that
such offers are inadmissible only when they are offered “to prove liability for, invalidity of, or
amount of a claim that was disputed as to validity or amount, or to impeach through a prior
inconsistent statement or contradiction.” Ill. R. Evid. 408(a) (eff. Jan. 1, 2011). The statements
were not offered to prove liability for or invalidity of a claim and did not involve a prior
inconsistent statement. The court considered the statements to show that petitioner had
knowledge of facts supporting the claims made in her section 2-1401 petition and did not act
diligently in pursuing those claims prior to judgment.
¶ 34 The memorandum sets forth in detail the allegations that petitioner is reclaiming in her
section 2-1401 petition. It shows that, from 2006 to 2011, the partners in Voyage split their
compensation equally. It points out that the divorce was filed in 2012 and that, in 2012 and
2013, respondent’s income was substantially lower than his partner’s income. The
memorandum states that petitioner believes at the time that respondent intentionally reduced
his income to decrease his support obligations. This memorandum shows that petitioner had
knowledge that there was a disparity in income but chose to settle without pressing the issue
with further discovery or raising the issue at trial.
¶ 35 Petitioner relies on postjudgment evidence showing the True-Up Scheme. Respondent
argues that petitioner cannot rely on postjudgment evidence to raise a section 2-1401 claim.
¶ 36 To be entitled to relief under section 2-1401 of the Code, “the petitioner must set forth
specific factual allegations showing the existence of a meritorious claim, demonstrate due
diligence in presenting the claim to the circuit court in the original action, and act with due
diligence in filing the section 2-1401 petition.” In re Marriage of Goldsmith, 2011 IL App (1st)
093448, ¶ 15. Section 2-1401 imposes upon the petitioner the burden of establishing her right
to relief. Id. “To set aside a judgment based on newly discovered evidence, the petitioner must
show the new evidence was not known to her at the time of the proceeding and could not have
been discovered by the petitioner with the exercise of reasonable diligence.” Id.
¶ 37 It is true that a section 2-1401 petition may not be based on events that occur subsequent to
judgment. In this case, petitioner is raising a claim of prejudgment fraud, and the alleged
evidence she presents simply supports her claim. This contention arguably has some support.
See People v. Howard, 363 Ill. App. 3d 741, 747 (2006).
¶ 38 Although this evidence may be relevant to the allegation of prejudgment fraud, it does not
change the circumstance that, before she entered into the MSA, petitioner had information
supporting her claim of a scheme to reduce respondent’s income. As the trial court stated in its
ruling: “This is sort of the definition of no due diligence if these facts existed or were available
before the prove-up and before the judgment. So, facts discovered after the entry, if they were
available before the prove-up, that’s not fair game for a [2-]1401 [petition].” While petitioner
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presents evidence showing respondent’s income had increased since the divorce, she had
information that his income had decreased before the divorce. This prompted petitioner to
claim in her pretrial memorandum that respondent was intentionally reporting less income to
reduce his support obligation.
¶ 39 Petitioner argues that the due diligence requirement should be relaxed in circumstances of
alleged fraud. She relies on In re Marriage of Roepenack, 2012 IL App (3d) 110198, Nessler v.
Nessler, 387 Ill. App. 3d 1103 (2008), and In re Marriage of Johnson, 339 Ill. App. 3d 237
(2003), in support.
¶ 40 Nessler involved a tort claim for fraudulent inducement of the wife’s execution of an MSA
based on her lawyer-husband’s fraudulent misrepresentations. Nessler, 387 Ill. App. 3d at
1104-05. Nessler did not address diligence and is, therefore, immaterial.
¶ 41 In Roepenack, the petitioner argued that the respondent was not diligent in discovering the
value of the business and other assets and presenting this claim to the trial court in the original
action. On appeal, the appellate court found the record supported the trial court’s finding that
the respondent acted with adequate diligence. Although due diligence had been satisfied, the
appellate court commented that the rule could be relaxed, noting that “[w]hen justice and
fairness require, a judgment may be vacated.” Roepenack, 2012 IL App (3d) 110198, ¶ 40
(citing In re Marriage of Hoppe, 220 Ill. App. 3d 271 (1991)). The respondent was not
represented by an attorney, as she could not afford one, she did no discovery, and she relied
exclusively on the petitioner’s representations of his income as a basis to settle the divorce. Id.
¶¶ 36-38. The appellate court emphasized that the petitioner testified in the original action to
the accuracy of the admittedly inaccurate statement of income, which the court deemed a fraud
on the respondent and on the court. Id. ¶ 40. Accordingly, the court affirmed the trial court’s
grant of the section 2-1401 petition to vacate the MSA.
¶ 42 Similarly, in Johnson, the respondent had no independent legal advice and did not seek any
discovery before agreeing to settle the divorce. The MSA was one-sided, and neither the
petitioner nor her attorney corrected the trial court’s incomplete characterization of the
separation agreement. Although there appeared to be no reason the respondent could not have
acted with due diligence in having an actuarial analysis of his pension performed before the
judgment of divorce was entered, we believed the circumstances warranted invoking the
exception to relax the diligence requirement, as the MSA effectively left the respondent in
penury. Johnson, 339 Ill. App. 3d at 243.
¶ 43 Respondent points out that the determinative factors for the relaxation of the due diligence
requirement in both Roepenack and Johnson depended on access to legal advice, availability of
discovery, and an understanding of the implication of the agreement. Here, unlike in
Roepenack and Johnson, petitioner was well represented by a renowned and respected family
law firm, she sought and obtained discovery, she relied on an independent forensic expert, and
she raised her concerns about respondent’s income prejudgment, but she voluntarily proved up
and settled instead of pursuing her suspicions.
¶ 44 We find this case more closely resembles Goldsmith, 2011 IL App (1st) 093448, where the
Appellate Court, First District, held that a petitioner’s reliance on the opposing party’s
representations, in lieu of formal discovery, does not satisfy due diligence. At the prove-up
hearing, the petitioner testified that her consent to the MSA was based on the respondent’s
representations regarding his holdings. Id. ¶ 6. She filed a section 2-1401 petition to vacate the
judgment, claiming that despite the respondent’s representation in the MSA that he had made
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full disclosure of his assets, she discovered he failed to disclose nearly $2 million in additional
assets. Id. ¶ 7.
¶ 45 To begin, the appellate court cited the well-settled principle that section 2-1401 “is not
intended to give the litigant a new opportunity to do that which should have been done in an
earlier proceeding or to relieve the litigant of the consequences of her mistake or negligence.”
Id. ¶ 14. It held that the petitioner could not meet the standard to set aside the judgment based
on newly discovered evidence because she could not show the new evidence was not known to
her at the time of the proceeding and could not have been discovered by her with the exercise
of reasonable diligence. Id. ¶ 50. The court stated:
“A representation and warranty of full disclosure in a marital settlement agreement,
even when the full disclosure is confirmed by affidavit (albeit unsigned here) cannot be
used as an escape hatch to avoid the consequences of failing to act diligently in the first
instance by engaging in sufficient discovery, a proposition that has been long
established in Illinois law. ‘ “A party in possession of his mental faculties is not
justified in relying on representations made when he has ample opportunity to ascertain
the truth of the representations before he acts. When he is afforded the opportunity of
knowing the truth of the representations[,] he is chargeable with knowledge. If one
does not avail himself of the means of knowledge open to him, he cannot be heard to
say he was deceived by misrepresentations.” ’ Lagen v. Lagen, 14 Ill. App. 3d 74, 81
(1973) (quoting Dickinson v. Dickinson, 305 Ill. 521, 527-28 (1922)).” Id. ¶ 51.
¶ 46 Petitioner contends that she did conduct discovery and relied on respondent’s statements to
Gould, the business valuation expert, to show respondent was fraudulently concealing the
scheme. Even after Gould made his report, petitioner submitted her pretrial memorandum,
which showed that she did not accept respondent’s explanation for the income disparity. More
importantly, petitioner was not prevented from continuing discovery and going to trial. She
clearly suspected at the pretrial in April 2014 that respondent was making more money. To
argue on appeal that he was concealing more money than she knew is, as the trial court aptly
stated, “disingenuous.”
¶ 47 Petitioner also cites Goldsmith, wherein the court states, “[w]e emphasize that this case
does not present a question of fraudulent concealment of assets.” Id. ¶ 47. There is no
difference between misrepresentation and fraudulent concealment under the facts of this
particular case. Regardless, this case centers around respondent’s representations to Gould
regarding the basis for respondent’s income fluctuations. Here, as the trial court pointed out, if
respondent, Royce, and Gould “all lied to petitioner and her attorneys at pretrial, at the
prove-up, or at some time earlier, this was discoverable by petitioner if she chose to pursue it.”
Petitioner was provided an adequate opportunity to determine the truth of her allegation, and
she raised the issue in the divorce proceeding but opted to settle her case despite her concerns.
Petitioner accepted the argument when she could have investigated the veracity of
respondent’s representations of his economic circumstances at the time. Petitioner also had the
option of presenting evidence of respondent’s decline in income at trial and requesting that the
trial court impute income to respondent.
¶ 48 “Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90,102 (1992). “ ‘The purpose of summary judgment is not to try an issue of
fact but *** to determine whether a triable issue of fact exists.’ ” Schrager v. North Community
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Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)).
Here, the record reflects that petitioner did not exercise reasonable diligence in presenting her
section 2-1401 claims to the trial court before entering into the MSA. Accordingly, we find no
triable issue of fact and hold that respondent is entitled to judgment as a matter of law.
¶ 49 B. Spoliation Motion
¶ 50 Petitioner next argues that the trial court abused its discretion in denying her spoliation
motion regarding respondent’s deletion of his e-mails. The motion was filed on May 22, 2018.
Petitioner brought this motion because she claimed the missing evidence would support her
section 2-1401 petition, including the allegations of her own due diligence and respondent’s
fraud. The trial court essentially found that, although respondent deleted the e-mails, he did not
destroy them because they remained on the computer. The court also noted that petitioner
proceeded to argument on summary judgment without raising the issue of deficient discovery.
In any event, we find this issue is moot because the motion pertains to the section 2-1401
petition and we have determined that petitioner’s pretrial memorandum shows that she was not
diligent in pursuing the section 2-1401 claims before entering into the MSA.
¶ 51 III. CONCLUSION
¶ 52 Based on the preceding, we affirm the judgment of the circuit court of Du Page County.
¶ 53 Affirmed.
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