Marriage of Travlos, In re

• Decision Date: 05 September 1991
• Docket Number: No. 1-90-1355,1-90-1355
• Citation: 218 Ill.App.3d 1030,578 N.E.2d 1267
• Parties: , 161 Ill.Dec. 621 In re the MARRIAGE OF Evangelia TRAVLOS, Petitioner-Appellee, and Dionisios Travlos, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 1267

578 N.E.2d 1267

218 Ill.App.3d 1030, 161 Ill.Dec. 621

In re the MARRIAGE OF Evangelia TRAVLOS, Petitioner-Appellee,

and

Dionisios Travlos, Respondent-Appellant.

No. 1-90-1355.

Appellate Court of Illinois,

First District, Fourth Division.

Sept. 5, 1991.

Rehearing Denied Oct. 3, 1991.

John Thomas Moran, Jr., Chicago, for respondent-appellant.

Matthew J. Berardi, Chicago, for petitioner-appellee.

Justice LINN delivered the opinion of the court:

The circuit court of Cook County entered a judgment dissolving the marriage of petitioner, Evangelia Travlos, and respondent, Dionisios Travlos. Included in the judgment was a distribution of the marital assets.

Dionisios subsequently filed a petition for relief from judgment. (Ill.Rev.Stat.1987, ch. 110, par. 2-1401.) He petitioned the trial court to vacate the judgment and redistribute the marital assets. The trial court dismissed the petition. Dionisios then filed a motion to vacate the dismissal; the trial court denied the motion. Dionisios appeals from both orders, contending that the trial court exceeded its discretion.

We affirm the orders of the trial court.

Background

A.

The record contains the following pertinent facts. On October 22, 1985, Evangelia filed an Amended Petition for Dissolution of Marriage. In the petition, after describing their marital property, Evangelia alleged that she had "no assets, income, or property."

On October 28, 1987, Evangelia filed a response to Dionisios' request for production of documents. She stated in pertinent part:

"1. Petitioner [Evangelia] has had no legal, equitable or beneficial interest [in] any bank accounts for the period of January 1, 1984 to present, except as Guardian of Nick Vasilatos in that capacity held a checking and a money market account held at the First National Bank of Lincolnwood from approximately December 1985 until his demise in March 1987. No documents pertaining to these accounts are in possession of [Evangelia], being retained in the possession of [her probate attorney]."

On November 10, 1987, Evangelia filed an affidavit in which she stated as follows:

"II. * * * Petitioner [Evangelia] further states that she personally owns no real estate in any foreign country but had acquired an interest in vacant farm land belonging to her uncle [Nicholas Vasilatos] and she believes that a Greek Court divested her of that interest. Matters pertaining to said proceeding both in the Probate Court of Cook County and in a Greek Court were documented by papers now in the possession of her probate attorney * * *.

* * * * * *

[III]E. Affiant [Evangelia] had personal control over two bank accounts at the First National Bank of Lincolnwood, a checking account and a Money Market Account in her name and that of Nicholas Vasilatos, her uncle, a disabled person. These accounts became the subject matter of a Probate proceeding handled by [Evangelia's probate attorney] and he was given all of the documents in her possession and he retains same to this date."

On November 16, 1987, Evangelia testified in a deposition as follows:

"Q. Are there any other accounts that you have any money in at the present time?

A. No.

Q. Any accounts in Greece?

A. No.

* * * * * *

Q. Is that property now yours?

A. No, they took it away from me.

Q. When did they take it away?

A. I don't know exactly.

Q. Were you in Greece at the time they took it away?

A. I was, but I didn't know, I found out later.

Q. When you were in Greece it didn't happen that they took this property away from you?

A. No. They did, they have it, but I didn't know at the time * * *

Q. Who was the person who claimed the right to the property?

A. His nephew.

Q. So as you know, this property was taken away from you and now belongs to the nephew?

A. Yes."

On April 11, 1988, Evangelia testified during her direct examination at trial as follows. Dionisios owned property in Greece prior to their marriage, but they built a house on the property subsequent to the marriage. Further, they spent between $2,000 and $3,000 annually, for 16 or 17 years, to maintain the property. The fair market value of the property with the house was between $40,000 and $50,000. She last saw this property in 1980. Evangelia's attorney asked her whether she or Dionisios owned any other real estate in Greece. She testified that Dionisios owned farmland in Greece that he acquired prior to the marriage.

During cross-examination by Dionisios' counsel, Evangelia provided additional testimony on Dionisios' land in Greece. Dionisios' counsel questioned Evangelia on how Dionisios acquired the land, and the extent of the furnishings of the house in Greece. Dionisios' counsel did not question Evangelia on her interest in the land acquired from her uncle.

On October 27, 1988, the trial court entered judgment dissolving the marriage of Evangelia and Dionisios. The judgment also allocated their assets. One such provision is as follows:

"V. That each of the parties shall be awarded their respective properties located in Greece, free and clear of any interest that the other may have therein."

B.

On November 23, 1988, Dionisios filed his first post-trial motion. (See Ill.Rev.Stat.1987, ch. 110, par. 2-1203.) Dionisios raised therein various issues pertaining to the distribution of marital property. On January 26, 1989, the trial court denied the motion.

On February 7, 1989, Dionisios filed a second post-trial motion--a petition to vacate the judgment pursuant to section 2-1401 of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-1401.) Dionisios alleged as follows. He learned facts that would have changed the judgment had they been available. Dionisios learned of these facts from a pleading in the estate proceeding of Evangelia's uncle. Further, Evangelia knew of these facts long before the trial court entered judgment, "but she misled [the trial court] by either omitting to reveal them affirmatively or by deliberately stating falsehoods when asked about them specifically."

Dionisios accused Evangelia of individually owning land in Greece. On August 26, 1985, Evangelia contracted with her uncle to buy, based on Greek property law, the "naked title" to a parcel of land in Greece. In May 1986, Evangelia contracted to buy the "use or usufruct" of the same property.

Dionisios noted that litigation ensued in Greece over the right to possess the above-mentioned property. He alleged that Evangelia prevailed in the Greek litigation approximately one year prior to the entry of judgment. Dionisios charged that Evangelia "lied on a number of occasions * * * and falsely stated that she had no right to the possession or title to that property." As an example, Dionisios specifically referred to Evangelia's November 16, 1987 deposition, where she stated that the land was taken away from her. Dionisios alleged that at that deposition, Evangelia "knew that she had prevailed in the litigation in Greece and was the legal owner of the full title to that property." Further, despite her victory in that litigation, Evangelia "has continually maintained the contrary throughout these proceedings."

The petition also alleged that on September 2, 1985, Evangelia's uncle devised to her various parcels of farmland in Greece. The petition alleged that Evangelia "omitted to inform the [trial court] of her ownership of these parcels of real estate."

Dionisios also accused Evangelia of having "control and access to a secret account at an unknown financial institution in Athens, Greece, having a current balance of * * * approximately $23,000.00." Dionisios alleged that Evangelia concealed the existence and her use of this fund. On April 17, 1990, the trial court granted Evangelia's motion to strike and dismissed Dionisios' section 2-1401 petition to vacate the judgment.

On May 9, 1989, Dionisios filed a third post-trial motion. In his "Emergency Motion," he asked the trial court to vacate the dismissal of his section 2-1401 petition. Dionisios essentially repeated the allegations in his section 2-1401 petition. He attached a certified English translation of a decision of a Greek appellate court, which apparently reversed a lower court and ruled in Evangelia's favor. The appeal was decided on November 24, 1987, and, according to its procedure, entered on December 8, 1987. Dionisios specifically charged that Evangelia "never revealed to [the trial court] or corrected her deposition testimony that the Greek property had been ruled to be hers." On May 11, 1989, the trial court denied Dionisios' emergency motion. Dionisios appeals from the trial court's dismissal of his section 2-1401 petition to vacate the judgment, and from the trial court's denial of his emergency motion to vacate the dismissal.

Opinion

The legal principles that pertain to a petition for relief from judgment are quite settled. The cases are legion. A trial court cannot review its own judgment after the expiration of 30 days from the date of entry. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 505, 165 N.E.2d 294, 296.) However, section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1401), formerly section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72), provides a procedure for obtaining relief from final orders and judgments after 30 days from the date of entry. Plavec v. Plavec (1961), 30 Ill.App.2d 345, 348, 174 N.E.2d 578, 579.

The statute substitutes a simple remedy for the relief previously available through various common law writs. The function of a section 2-1401 petition is to bring before the court that rendered a judgment facts not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition. (Petrauskas v. Motejunas (1971), 133 Ill.App.2d 293, 296, 272 N.E.2d 805, 807-08.) Although courts apply the provision with the aim of achieving justice, section 2-1401 was never intended to give a litigant a new opportunity to...