Nacanabo v. Djire (In Re Marriage of Nacanabo)

• Decision Date: 07 August 2019
• Docket Number: No. 1-17-2680,1-17-2680
• Citation: 2019 IL App (1st) 172680 -UB
• Parties: In re MARRIAGE OF BENEQUENDE OUSMANE NACANABO, Petitioner-Appellee, and AISSATA DJIRE, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 172680-UB

In re MARRIAGE OF BENEQUENDE OUSMANE NACANABO¹, Petitioner-Appellee, and AISSATA DJIRE, Respondent-Appellant.

No. 1-17-2680

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

August 7, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court Cook County

14 D3 30378

Honorable Alfred Levinson, Judge Presiding

JUSTICE ELLIS delivered the judgment of the court.

Justices Howse and Cobbs concurred in the judgment.

ORDER

¶ 1 Held: Affirmed. Trial court properly denied respondent's section 2-1401 petition.

¶ 2 Respondent Aissata Djire argues that the circuit court erred by denying her section 2-1401 petition to vacate an order allowing her ex-husband, petitioner Benequende Ousmane Nacanabo, to relocate the couple's two children to Africa. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 Djire and Nacanabo are both African immigrants who were officially married in a civil ceremony in 2013. Prior to their marriage, the couple had two children. In 2014, Nacanabo filed a petition for dissolution of marriage; Djire counter-petitioned. Ultimately, they entered into a marital settlement agreement, and the court granted a judgment of dissolution in February 2015.

¶ 5 As part of the settlement, the parties agreed to joint custody and financial responsibility of their two children. But "the primary residential custody of the children" was awarded to the father, Nacanabo. That decision was based, at least in part, "upon the fact that [Djire] is or has relocated to the State of North Carolina."

¶ 6 Relocation Order

¶ 7 Later, in July 2016, Nacanabo filed a petition to relocate their children to his native country of Burkina Faso in Africa. Djire objected. After a hearing, the court made oral findings of fact—which were later incorporated into a written memorandum order—and allowed Nacanabo to relocate the children, albeit with certain conditions to protect Djire's visitation rights.

¶ 8 Aside from the relocation itself, three other aspects of that order are worth mentioning. First, the court required Nacanabo to post a $15,000 bond to ensure that the children would be able to travel to the United States. Second, the court required Nacanabo to assume the cost of Djire's travel to Burkina Faso to visit the children. And third, given the children's move to Africa, the order modified Djire's parenting time, giving her two weeks of visitation in Burkina Faso annually (all at once or two weeklong periods) as well as allowing her, three times a week, to speak with the children via some form of electronic video conferencing. She was also provided parenting time during the summer, between the children's school years. In a subsequent order, and for reasons not pertinent to this appeal, the court changed many of these provisions.

¶ 9 The written memorandum order was entered on October 4, 2016. Djire, through counsel, filed two motions to reconsider, which were denied in January 2017. Djire did not appeal either the relocation order or the denial of the motions to reconsider.

¶ 10 Section 2-1401 Petition

¶ 11 Instead, in April 2017, pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)), Djire filed a petition to vacate the court's decision to allow the relocation. In the petition, she alleged that the court made grave errors in its judgment by barring evidence of Nacanabo's alleged abuse and failing to appoint a guardian ad litem. The court allowed Nacanabo to respond to the petition, but he failed to do so within the time allowed. Nearly five months after the initial response date, Nacanabo filed his response to Djire's 2-1401 petition. Djire objected, and Nacanabo filed a motion to allow the late response. On October 4, 2017, the court denied Nacanabo's motion to file a late response and simultaneously denied Djire's 2-1401 petition. The order does not explain the court's reasoning.

¶ 12 Djire appeals the denial of her 2-1401 petition.

¶ 13 ANALYSIS

¶ 14 Initially, we dismissed this appeal on jurisdictional grounds, due to a defect in the notice of appeal. We expressly noted that only the supreme court, under its supervisory authority, could permit this appeal to go forward. On Djire's motion, the supreme court did just that, granting Djire's motion for supervisory order and directing us "to treat the notice of appeal, filed on October 31, 2017, as an appeal from the circuit court's October 4, 2017, judgment denying movant's section 2-1401 petition."

¶ 15 We must be very clear about the posture of this case. The circuit court entered its written order granting Nacanabo's petition for relocation in October 2016 and denied the motion toreconsider that order in January 2017. We are not reviewing the propriety of the court's decision to allow the relocation. Djire did not appeal those orders. Instead, we are only tasked with considering whether the court erred in denying Djire's section 2-1401 petition. It's a crucial distinction, because a section 2-1401 petition, though filed in the same court where the original proceeding took place, is itself a separate proceeding—a collateral attack on the original proceeding—and not a continuation of the original proceeding. Stolfo v. KinderCare Learning Centers, Inc., 2016 IL App (1st) 142396, ¶ 25.

¶ 16 "The purpose of a petition under section 2-1401 is to bring before the court matters of fact not appearing in the record, which if known to the court at the time the judgment was entered, would have prevented its rendition." Universal Outdoors, Inc. v. City of Des Plaines, 236 Ill. App. 3d 75, 80 (1992). This information can present either a factual or legal challenge to a final judgment or order. Warren County Soil and Water Conversation Dist. v. Walters, 2015 IL 117783, ¶¶ 31, 41.

¶ 17 The type of challenge dictates the standard of review on appeal. Id. ¶ 31. When there is a "purely legal challenge" to the underlying judgment, we apply a de novo standard of review. Id. ¶ 47; see also People v. Vincent, 226 Ill. 2d 1, 5 (petition raised purely legal question by alleging that underlying judgment was void). But if, as here, the challenge to the final judgment is dependent on factual issues, the challenge "must be resolved by considering the particular facts, circumstances, and equities of the underlying case." Id. ¶ 50. In that instance, we follow the standards set forth in Smith v. Airoom, 114 Ill. 2d 209 (1986); see Walters, 2015 IL 117783, ¶¶ 51.

¶ 18 Namely, "the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense; (2) duediligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. Airoom, 114 Ill. 2d at 221. The circuit court's denial or grant of a section 2-1401 petition in those instances is reviewed for an abuse of discretion. Walters, 2015 IL 117783, ¶ 51; Airoom, 114 Ill. 2d at 221.

¶ 19 Because, as we noted above, a section 2-1401 petition is a separate proceeding collaterally attacking the judgment in the original proceeding, as opposed to being a continuation of the original proceeding, a section 2-1401 petition may not be used to obtain relief on a basis that has already been raised or could have been raised in the trial court. People v. Kane, 2013 IL App (2d) 110594, ¶ 17; People v. Haynes, 192 Ill. 2d 437, 460-61 (2000) ("Points previously raised at trial and other collateral proceedings cannot form the basis of a section 2-1401 petition for relief."). That is to say, apart from jurisdictional issues not present here, a section 2-1401 petition allows a party only to raise an " 'error of fact or the existence of a valid defense [that] was not made to appear in the trial court' " through no fault of the petitioner. (Emphasis added.) Airoom, 114 Ill. 2d at 222 (quoting Brockmeyer v. Duncan, 18 Ill. 2d 502, 505 (1960)).

¶ 20 Thus, we have consistently held that, if the factual or legal issue was already raised in the original trial proceedings or could have been raised there, a party may not invoke section 2-1401 to re-litigate that same question as a substitute for an appeal, or a second appeal, of that original judgment. See Stolfo, 2016 IL App (1st) 142396, ¶¶ 26-27 (plaintiff's claims in section 2-1401 petition "either were, or could have been, asserted in his direct appeal," and thus were "res judicata and may not be relitigated in [a] section 2-1401 proceeding, which is a separate action and not a continuation of the earlier action."); Smolinski v. Vojta, 363 Ill. App. 3d 752, 756 (2006) (plaintiff's section 2-1401 petition "must fail because its grounds, namely, his relative indigence compared to his wife and her alleged misrepresentations as to her income andobligations, were fully argued before the circuit court and, as such, could have been raised in a direct appeal which was not forthcoming. Accordingly, they cannot now be invoked through a collateral attack under section 2-1401."); Niemerg v. Bonelli, 344 Ill. App. 3d 459, 466 (2003) ("a section 2-1401 petition is not intended to provide for the review of an order from which a party could have taken a timely appeal, and such a petition is not to be invoked as a substitute for a party's right to appeal."); Stacke v. Bates, 225 Ill. App. 3d 1050, 1053 (1992) (acknowledging "well-established rule" that "it is 'not within the purpose of a [section 2-1401] proceeding * * * to [consider claims] which could have been presented in the trial court and on direct review * * *. Such claims which might have been raised, but were not, are waived.").

¶ 21 I. Exclusion of Evidence of Abuse

¶ 22 In her section 2-1401 petition, Djire first argues that the trial court erroneously excluded evidence of spousal and child abuse at the relocation...