Herrera v. Herrera

2021 IL App (1st) 200850

194 N.E.3d 1107

Leticia HERRERA, Petitioner-Appellee,

v.Rafael HERRERA, Respondent-Appellant.

No. 1-20-0850

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 30, 2021

Edgar A. Vega, of Chicago, for appellant.

Alan Spitz, of Chicago, for appellee.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Following an evidentiary hearing, the circuit court denied motions filed by respondent Rafael Herrera (respondent or Rafael) to modify a judgment of dissolution of marriage, quash an affidavit of service by publication, and vacate a default judgment, all in connection to his dissolution of marriage judgment entered on June 7, 2006. On appeal, Rafael contends that the circuit court erred in: (1) applying Smith v. Airoom, Inc. , 114 Ill. 2d 209, 102 Ill.Dec. 368, 499 N.E.2d 1381 (1986), to deny his motion to quash the affidavit for service by publication filed on April 11, 2006, and (2) denying his motion to reconsider the March 2020 denial of his section 2-1401 ( 735 ILCS 5/2-1401 (West 2018) ) petition to modify the dissolution judgment based on promissory estoppel and waiver. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 A. Procedural Background

¶ 4 Petitioner Leticia Herrera (petitioner or Leticia) and Rafael were married in Cook County on October 9, 1993. On January 25, 2006, Leticia filed a petition for order of protection, in which she alleged, among other things, that she resided in Chicago and Rafael resided in Mexico. The circuit court granted Leticia leave to serve Rafael by publication pursuant to sections 2-206 and 2-207 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-206, 2-207 (West 2006)). The court subsequently certified the service by publication for the order of protection on February 2, 2006.

¶ 5 The record indicates that Leticia filed for dissolution of marriage in Cook County on April 4, 2006, and was granted leave to serve Rafael by publication on April 10, 2006. The circuit court certified the service by publication for the dissolution of marriage action on April 17, 2006. Rafael did not respond, and Leticia sought a default judgment against him on May 26, 2006, which was granted on June 7, 2006. Pursuant to the dissolution judgment, Leticia was awarded the marital home located in Chicago, and she filed a motion for a judge's deed on July 27, 2006. The hearing on Leticia's motion was continued to August 28, 2006, and Rafael was granted additional time to enter his appearance. On August 28, 2006, Rafael's counsel filed his appearance instanter , and he was granted 21 days to respond to Leticia's motion for immediate sale of the marital home.¹ On April 3, 2007, the parties entered an agreed order that Leticia's motions for a judge's deed and for immediate sale of the marital home were withdrawn, as the property was listed for sale, and the matter was taken off the court's call.

¶ 6 On June 17, 2019, Rafael filed a section 2-1401(f) ( 735 ILCS 5/2-1401 (West 2018) ) petition to modify the judgment for dissolution of marriage that was entered on June 7, 2006. In his petition, Rafael contended that: (1) he was not personally served with process and that service was obtained by publication; (2) he and Leticia lived together as husband and wife prior to January 2006 and again sometime after November 2006 until April 1, 2019; (3) he took temporary employment in Arizona between January and August 2006, and was unaware of the divorce proceedings; (4) at the time the agreed order was entered on April 3, 2007, Leticia failed to inform the court that she and Rafael had resumed living together in the marital home; (5) the award of the marital home to Leticia was void; and (6) the award of the marital home to Leticia was waived because she never took any action to enforce the award against him.

¶ 7 Additionally, Rafael argued that the default judgment was void because: (1) he had a meritorious defense, namely that the award left him a pauper as the home was his only asset which he purchased and owned separate from Leticia and he made all of the mortgage payments; (2) his "perceived" lack of due diligence at the time the judgment was entered should be relaxed because he was under a "disability" as Leticia controlled all of the information about the divorce; (3) he did not know his house was awarded to Leticia or that it was listed for sale and thought that he still owned it; (4) it would be unconscionable to allow Leticia to have the house while he had continued to make all mortgage and utility payments until the present time; (5) Leticia could have obtained proper service by asking Rafael for his address in Arizona; (6) Leticia did not tell him about the divorce until two months after the default judgment was entered, even though he returned from Arizona in August 2006; (7) he did not recall speaking to the attorney who filed an appearance in the original action; and (8) alternately, because the court reserved jurisdiction to enforce the award or modify judgment, it should be modified to grant Rafael possession of the marital home that was already titled in his name and was awarded to Leticia based on her misrepresentation and manipulation. Rafael attached an affidavit to support his claims.

¶ 8 Leticia filed a response to Rafael's section 2-1401(f) petition on September 18, 2019, denying the allegations of the petition. On September 24, 2019, a hearing was held on Rafael's petition. No report of proceedings or bystander's report was filed with the record on appeal from that hearing. However, the record reflects that an order was entered granting Rafael's motion to modify the June 7, 2006, dissolution judgment and revoking the award of the marital home to Leticia. The order also reserved for the court's consideration the division of all property, including the marital home, and any other financial issues that were stated in the original judgment, and took the case off of the call.

¶ 9 On October 18, 2019, Leticia, by new counsel, filed a motion to reconsider, vacate, and reinstate original judgment. Leticia argued that: (1) Rafael was physically present in court and was represented by counsel at the various court dates related to her motion for judge's deed; (2) his attorney's appearance gave the court in rem jurisdiction over the matter and the property as well as personal jurisdiction over Rafael; (3) Rafael did not attack the judgment at any time while the matter was previously pending in 2006 or 2007, nor did he allege fraud, disability or duress; (4) any knowledge that Rafael now claims regarding her purported fraud was available to him on August 23, 2006; (5) his contentions are untimely as they were not filed within the two-year period required by section 2-1401 ( 735 ILCS 5/2-1401 (West 2018) ); (6) the court lacked jurisdiction beyond the two-year period of section 2-1401 ; (7) she was present at the September 24, 2019, court date but was not allowed to testify and she was not adequately represented by her previous counsel; (8) an evidentiary hearing must be held to grant relief under section 2-1401 pursuant to Smith v. Airoom, Inc. , 114 Ill. 2d 209, 102 Ill.Dec. 368, 499 N.E.2d 1381 (1986), and (9) no relief under section 2-1401 could be granted because more than two years had passed since the entry of judgment.

¶ 10 The circuit court set Leticia's motion to reconsider for hearing on December 3, 2019. Rafael's response was filed on November 21, 2019, and he additionally argued that Leticia did not meet the test of valid service by publication.

¶ 11 On December 2, 2019, Rafael filed a second section 2-1401(f) ( 735 ILCS 5/2-1401(f) (West 2018))² petition, seeking to quash the affidavit for service by publication and vacate the default dissolution judgment entered in 2006. In his motion, Rafael restated his arguments that he was improperly served by Leticia; that Leticia's affidavit of service failed to strictly comply with section 2-206(a) ( 735 ILCS 5/2-206(a) (West 2006)), which required a showing of due diligence to locate Rafael; and that his contentions were supported by the parties’ daughter's affidavit.

¶ 12 On December 3, 2019, the circuit court scheduled Leticia's motion to reconsider and Rafael's new section 2-1401(f) petition for hearing on January 16, 2020. Leticia filed a supplemental reply to Rafael's response, arguing that section 2-1401 ( 735 ILCS 5/2-1401 (West 2018) ) did not provide a remedy from the consequences of a litigant's own mistake or negligence. Leticia also filed a motion to strike and dismiss Rafael's motion to quash on December 31, 2019, noting that Rafael's motion acknowledged that an attorney previously filed an appearance on his behalf in the original cause on August 28, 2006. Additionally, Leticia argued that: (1) Rafael's motion sought similar, if not identical relief in the previously filed section 2-1401 petition, which was previously granted by the court; (2) Rafael filed an application and affidavit to sue or defend as an indigent person on August 7, 2006, which was granted on August 28, 2006, the same day Rafael's appearance was filed; (3) per his affidavit, Rafael knew of the matter; (4) Rafael waived any right to challenge the court's jurisdiction pursuant to section 2-301 of the Code ( id. § 2-301 (West 2018) ); and (5) he was statutorily barred from the relief sought in the motion pursuant to various sections of 2-619 of the Code ( id . § 619(a)(1), (4), (5), (9) ).

¶ 13 Rafael subsequently filed a reply on January 15, 2020, raising the new argument that Leticia failed to respond to his argument that her failure to strictly comply with section 2-206(a) ( 735 ILCS 5/2-206(a) (West 2006)) was void ab initio.

¶ 14 On January 16, 2020, the circuit court granted Leticia's motion to reconsider and set the matter for an evidentiary hearing on March 10, 2020, on both of Rafael's underlying petitions to modify the dissolution judgment and to quash service. The court's order also barred ...