Illinois Official Reports 

Appellate Court

Cavitt v. Repel, 2015 IL App (1st) 133382

Appellate Court 

Caption

MARY CAVITT, Plaintiff-Appellant, v. STEVEN REPEL, 

Defendant-Appellee.

District & No. First District, First Division

Docket No. 1-13-3382

Filed May 4, 2015

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 95-D-79903; the 

Hon. Pamela E. Loza, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Mary Cavitt, of Chicago, appellant, pro se.

Law Office of Steven R. Verr, of McHenry (Steven R. Verr, of 

counsel), for appellee.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with 

opinion.

Presiding Justice Delort and Justice Harris concurred in the judgment 

and opinion.
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 OPINION 

¶ 1 This appeal arises from the May 18, 2011 order entered by the circuit court of Cook 

County, which granted the motion of defendant Steven Repel1(Steven) to dismiss a “petition 

to void” filed by plaintiff Mary Cavitt (Mary) to vacate a 1997 judgment for child support, 

pursuant to section 2-1401 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 

5/2-1401 (West 2010)). This appeal also arises from the circuit court’s February 5, 2013 order 

imposing attorney fees and costs upon Mary. On appeal, Mary argues that: (1) the circuit court 

erred in dismissing her section 2-1401 petition without conducting an evidentiary hearing; and 

(2) the circuit court erred in imposing a total of $31,977.83 in attorney fees and costs upon her. 

For the following reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 2 BACKGROUND 

¶ 3 The procedural history in this case is extensive, and only those facts relevant to the issues 

raised in this appeal are summarized below. Steven and Mary were never married to each 

other, but are the biological parents of a son named Noah, who was born on July 8, 1995. On 

September 21, 1995, Mary, a practicing dentist who was represented by attorney Nathanial 

Lawrence (Attorney Lawrence), filed a “petition for parentage and support,” seeking to 

establish paternity and to resolve child custody and support issues against Steven. On October 

24, 1995, a summons was served by process server upon Steven at his then residence at 1852 

W. Thomas Street in Chicago, Illinois. 

¶ 4 On December 1, 1995, Steven filed, and the circuit court granted, an “application to 

proceed under Supreme Court Rule 298” (Rule 298 application) (Ill. S. Ct. R. 298 (eff. Nov. 1, 

2003)) for the waiver of court fees, noting that he was unemployed and had an “undetermined” 

amount of expected future income, that he owned no interest in real estate, and that he had a 

“nominal” and “unknown” value in personal property. On December 19, 1995, Steven, acting 

pro se, filed an appearance before the court in forma pauperis.

¶ 5 On January 5, 1996, Steven married Mieko Fujii (Mieko). 

¶ 6 On March 8, 1996, attorney Lawrence Lusk (Attorney Lusk) filed an appearance before the 

court as substitute counsel for Mary. 

¶ 7 On April 12, 1996, the circuit court2entered an order requiring the parties to “exchange 

financial records sufficient to determine income since January 1st, 1995 to present.”

¶ 8 On May 9, 1996, attorney Mary Beth Powers (Attorney Powers) filed her appearance 

before the court as counsel for Mary. 

¶ 9 On July 24, 1996, Mary, through Attorney Powers, filed written discovery against Steven 

for the disclosure and production of documents relating to Steven’s assets and income. In 

August 13, 1996 Rule 13.3(a) and (b) (Cook Co. Cir. Ct. R. 13.3(a), (b) (Jan. 1, 1996) financial 

disclosure statements, Steven represented that he was self-employed; that his total gross 

monthly income was $2,008; that he earned a net monthly income of $1,007 after tax 

deductions; that he had living expenses of $700 per month; that he owed creditors about 

$187,000; that his student loans were in “default”; that he owned no investment accounts or 

 

1

Steven Repel is also known as Steven Ludington. 

2

Presided over by Judge G.L. Lott (deceased). 
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securities; that he owned 50% of “equitable interest only” in business entity “S+G Partners”; 

that real estate property at 1852 W. Thomas Street in Chicago was transferred to S+G Partners 

in 1992 and then to “William & Mary Repel” in 1993; that he had no health insurance 

coverage; and that he owned about $5,000 in miscellaneous personal property. 

¶ 10 On January 13, 1997, the circuit court 3entered a “Judgment for Parentage” (1997 

judgment), which incorporated the parties’ September 13, 1996 parental settlement agreement 

(the settlement agreement). The September 13, 1996 settlement agreement, which was drafted 

by Mary’s counsel, Attorney Powers, provided that the parties agreed that Mary shall have sole 

custody of Noah, subject to reasonable visitation rights by Steven; that Steven shall pay Mary 

$500 per month in child support; that the parties acknowledged that Steven was unable to 

contribute to the day care of Noah, but “the issues of day care shall be reserved until further 

order of Court”; that Steven shall tender his income tax returns to Mary each year; that Mary 

shall maintain health insurance for Noah until such time as Steven is able to secure a policy of 

coverage through employment; that Steven shall maintain a life insurance policy for the benefit 

of Noah; and that the parties shall pay for Noah’s college expenses pursuant to section 513 of 

the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/513 (West 1996)). 

¶ 11 On May 5, 2000, Steven and Mieko’s marriage ended in divorce. That marriage produced 

no children. The judgment for dissolution of marriage (case No. 00 D 7309), which 

incorporated Steven and Mieko’s marriage settlement agreement, stated that Steven was 

employed as an attorney at a Chicago law firm with an annual income of $100,000; that Mieko 

had an income of $30,000 per year; that Steven shall pay Mieko maintenance of $2,500 per 

month for 36 months beginning on June 1, 2000; that Steven shall pay Mieko’s health 

insurance coverage for one year; that Steven shall maintain a life insurance policy for the 

benefit of Mieko; that Mieko shall receive 50% of the value of Steven’s individual retirement 

account (IRA) and simplified employee pension (SEP) plans; that Mieko shall receive certain 

mutual funds from Steven; that Mieko shall receive 100% interests in real estate properties 543 

Sheridan Road in Evanston, 2838-40 N. Albany Avenue in Chicago, and 1937 N. Damen 

Avenue in Chicago; that Mieko shall receive $72,000 in cash as property settlement from 

Steven; and that Mieko shall receive 50% of any and all cash payments from Steven’s share of 

the partnership Berg, Repel & Berg. 

¶ 12 On September 13, 2000, Mary, represented by new counsel Robert Schmit (Attorney 

Schmit), filed a “petition for modification of child support” (petition to modify), arguing that 

Steven’s income and assets had increased substantially since the entry of the 1997 judgment. 

The petition to modify sought to increase Steven’s monthly child support obligations; to obtain 

reimbursement from Steven for Noah’s medical insurance; to require Steven to contribute to 

the day care costs of Noah; and to restrict Steven’s visitation rights.

¶ 13 On November 1, 2000, Steven, acting pro se, filed a motion to modify his monthly child 

support payments to an amount less than $500, on the basis that he had lost his job at a law firm 

in September 2000 and that he had no income to continue paying the monthly support 

obligation as it existed. 

¶ 14 On February 28, 2001, attorney Fred Lerner (Attorney Lerner) filed an appearance before 

the court as substitute counsel for Mary. 

 

3

Presided over by Judge David Delgado (retired). 
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¶ 15 During the pendency of Mary’s September 13, 2000 petition to modify, Mary engaged in 

extensive discovery–including deposing Steven, Mieko, Steven’s former law partner, Steven’s 

father, Steven’s friend, Steven’s second wife (Sarah Ludington) (Sarah), and Sarah’s tenant, as 

well as issuing dozens of subpoenas to these individuals and Steven’s former clients, his 

in-laws, and various banks and business entities. 

¶ 16 On July 16, 2004, Mary again obtained new counsel and attorney Regina Scannicchio 

(Attorney Scannicchio) was granted leave of court to file her appearance as substitute counsel. 

¶ 17 On January 26, 2005, the circuit court entered an order limiting Mary’s discovery efforts to 

the date of the filing of her September 13, 2000 petition to modify, and specifically limiting 

Mary’s request of production of documents from Sarah to the date of October 6, 2001. 

¶ 18 On June 20, 2005, Mary filed a motion to join Sarah,4Steven’s second wife, as a party to 

the litigation, alleging that Steven had demonstrated “a comprehensive pattern and practice of 

diverting, shielding and/or disguising his true income by, in part, jointly investing personal 

and/or marital income and assets with [Sarah]; directing that income and/or gains derived from 

such joint investments be made payable to [Sarah] rather than to himself; granting and/or 

transferring income and/or assets to [Sarah]; and/or otherwise directing that income due to him 

flow instead to [Sarah].” The motion to join Sarah also alleged that Sarah had “diverted monies 

from her joint account with [Steven] to accounts jointly held between herself and other 

parties.”

¶ 19 On August 26, 2005, the circuit court5granted Mary’s motion to join Sarah as a necessary 

party to the litigation in order “to reach a decision which will protect the interest of those who 

are before the court” and “to enable the court to make a complete determination of the 

controversy.”

¶ 20 On August 18, 2006, Mary, through new counsel Joshua Jackson of Schiller, DuCanto and 

Fleck (Attorney Jackson), filed a motion to join Mieko, Steven’s ex-wife, as a party to the 

litigation, alleging that Steven attempted to shield his assets by transferring most of his assets 

to Mieko during their May 2000 divorce; and that both Steven and Mieko worked together to 

shield Steven’s true income from the court–including proceeds from the sale of property 

located at 2838-40 N. Albany Avenue in Chicago, rental income and refinance funds from 

property located at 543 Sheridan Road in Evanston, and rental income from property located at 

1937 N. Damen Avenue in Chicago. On March 4, 2008, the circuit court6

denied Mary’s 

motion to join Mieko as a party. 

¶ 21 On October 2, 2007, attorney Nicholas Stein (Attorney Stein) entered his appearance 

before the court as substitute counsel for Mary. On October 14, 2008, attorney Herbert 

Glieberman (Attorney Glieberman) was granted leave of court to file his appearance as 

additional counsel for Mary. 

¶ 22 On October 15, 2008, on the eve of trial, Mary, through Attorney Stein, voluntarily 

dismissed her September 13, 2000 petition to modify pursuant to section 2-1009 of the Code 

(735 ILCS 5/2-1009 (West 2008)). 

 

4Only the first two pages of the motion to join Sarah (No. C02522-23) can be located in the record 

and it is unclear whether a complete copy of this pleading has been included in the 54-volume record. 

5

Presided over by Judge Timothy Murphy. 

6

Presided over by Judge Patricia Logue. 
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¶ 23 On June 29, 2009, Attorney Glieberman, on behalf of Mary, filed a “petition for 

modification of child support and other relief” (2009 petition to modify), seeking retroactive 

child support based on the amount of Steven’s past earnings for each year subsequent to the 

entry of the 1997 judgment; child support in the sum of $3,000 per month going forward; 50% 

of all monies Mary allegedly paid on behalf of Noah for medical attention, schooling and other 

needs in the amount of $286,167.76; and proof of the existence of Steven’s life insurance 

policy in the value of $100,000 designating Mary as a trustee. The 2009 petition to modify 

alleged that since the entry of the 1997 judgment, there had been no modification to increase 

the amount of monthly child support, Steven’s income had substantially increased to in excess 

of $150,000 per year, and Steven had “secreted” funds with Mieko and Sarah. The 2009 

petition to modify did not name either Mieko or Sarah as parties, and did not reference the 

original September 2000 petition to modify that had previously been voluntarily dismissed by 

Mary on October 15, 2008. The 2009 petition to modify also made no allegations that Steven 

had failed to pay the $500 monthly child support since the entry of the 1997 judgment. 

¶ 24 On January 26, 2010, Mary, who was represented by new counsel Howard Schusteff 

(Attorney Schusteff), filed an “amended petition for modification of child support and other 

relief” (2010 amended petition to modify), against both Steven and Sarah. However, Sarah was 

not served with process. The 2010 amended petition to modify again sought retroactive child 

support based on the amount of Steven’s past earnings for each year subsequent to the entry of 

the 1997 judgment, and included all of the same allegations as those contained in the 2009 

petition to modify. The 2010 amended petition to modify further alleged that Steven had 

purchased a Porsche Cayman Coupe automobile in 2007, that he had been referenced in a 

published article by Andrew Burr which stated that Steven was the property owner of a 

50,000-square-foot flex facility on West Kinzie Street in Chicago and the property owner of a 

26,000-square-foot building for which he paid $350,000 to install a geothermal heating 

system. The 2010 amended petition to modify further alleged one count against Sarah, alleging 

that she “aided and abetted” Steven, who “fraudulently diverted, shielded, and/or disguised 

income that this [court] must consider so as to be able to determine ‘net income’ upon which to 

base the minimum duty of support owed by Steven in support of Noah”; that Steven and Sarah 

jointly applied for a loan to purchase a $700,000 home in Highland Park in November 2004 

and that Steven quitclaimed his entire interest in the Highland Park property to Sarah shortly 

thereafter; that Sarah is the landlord of Steven’s law office, for which Steven paid up to $3,000 

per month in rent; that Steven wrote checks to Sarah for the “advance rent” on his office space 

in 2005; that he wrote several thousand dollars in checks from his Interest on Lawyers Trust 

Accounts (IOLTA) account to Sarah in 2005; that he transferred $245,145 to Sarah from 

December 2003 to June 2004; and that Sarah should be ordered to provide a complete 

accounting of any assets, funds, and interest that she had received from Steven. The 2010 

amended petition to modify also did not reference the original September 2000 petition to 

modify that had previously been voluntarily dismissed by Mary on October 15, 2008. 

¶ 25 On June 11, 2010, Steven, by his counsel Steven Verr (Attorney Verr), filed a motion to 

dismiss Mary’s 2010 amended petition to modify, arguing, inter alia, that Illinois statutory law 

barred all claims of retroactive child support and expenses predating the filing date of the 

petition. On July 27, 2010, Attorney Schusteff filed, on behalf of Mary, a response to Steven’s 

motion to dismiss the 2010 amended petition to modify. On August 24, 2010, counsel for 
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Steven filed a reply in support of Steven’s motion to dismiss the 2010 amended petition to 

modify. 

¶ 26 On September 29, 2010, almost 14 years after the entry of the 1997 judgment, Mary filed a 

“petition to void judgment for parentage” (petition to void) the 1997 judgment, on the basis of 

fraud. The petition to void alleged that, unbeknownst to Mary, at the time the parties entered 

into the 1996 settlement agreement, Steven was a partner of the law firm known as Berg, Repel 

& Berg; Steven had been gainfully employed since 1986 and was a partner of the law firm 

since November 1992; Steven obtained a $206,250 mortgage on the property located at 1852 

W. Thomas Street and obtained a $41,000 home equity loan in December 1996, which was 

recorded five days before the entry of the 1997 judgment; Steven quitclaimed property located 

at 1937 N. Damen Avenue in Chicago to his then-wife, Mieko, in December 1996; and that 

Steven conveyed his 50% interest in the 1937 N. Damen Avenue property to Mieko under their 

divorce decree in May 2000. The petition to void further alleged that, in light of Steven’s 

“intentional marital misrepresentations” and Mary’s reasonable reliance upon them “which he 

knew would cause Mary to accept a settlement agreement which provided for significantly less 

child support obligations,” the 1997 judgment (which had incorporated the settlement 

agreement) must be vacated or modified. Thereafter, the circuit court ruled that Mary’s 

“petition to void” was actually a petition filed under section 2-1401 of the Code (735 ILCS 

5/2-1401 (West 2010)). 

¶ 27 On November 22, 2010, Steven filed a “request for the admission of fact” (requests for 

admission) pursuant to Illinois Supreme Court Rule 216 (eff. May 30, 2008). On December 3, 

2010, Mary, through Attorney Schusteff, filed a motion to strike and dismiss Steven’s requests 

for admission, arguing that the requests were excessive, abusive, and propounded to delay his 

response to her section 2-1401 petition. On January 3, 2011, the circuit court7

 entered an order 

directing Steven to limit his requests for admission to a total of 50 requests, and identifying 

each of the requests that Mary must answer. On January 10, 2011, Mary filed answers to 

Steven’s requests for admission, objecting to most of the requests as vague, conclusory, 

compound, irrelevant, and lacking specificity. On January 31, 2011, Steven filed a motion to 

strike Mary’s answers to his request for admission (motion to strike answers), arguing that the 

answers lacked truthful foundation, were belied by the record, and were otherwise improper, 

and requesting that he be awarded attorney fees and costs pursuant to Illinois Supreme Court 

Rule 219(b) (eff. July 1, 2002). 

¶ 28 On March 14, 2011, a hearing on Steven’s motion to strike answers was held, during which 

Mary’s counsel, Attorney Schusteff, changed 12 of Mary’s previous answers from “denials” to 

“admissions.” Specifically, under request No. 60, Mary admitted that, prior to September 28, 

2008, she had indeed previously accused Steven of “fraud” with respect to the entry of the 

1997 judgment. 

¶ 29 On April 18, 2011, Steven filed a motion to dismiss Mary’s section 2-1401 petition, 

arguing, inter alia, that Mary was time barred from alleging fraudulent concealment against 

Steven, where she had judicially admitted that she was aware of the supposed “fraud” more 

than two years prior to the filing of the section 2-1401 petition. 

 

7

Presided over by Judge Pamela Loza. 
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¶ 30 On May 18, 2011, following a hearing on Steven’s motion to dismiss the section 2-1401 

petition, the circuit court8 dismissed the section 2-1401 petition with prejudice, granted Steven 

leave to file a motion for costs, and noted that Mary’s 2010 amended petition to modify was 

still pending before the court and which the court would “allow.” The court noted that there 

was “no just reason to delay enforcement of this order.”

¶ 31 On June 3, 2011, Mary filed a motion to reconsider the court’s May 18, 2011 ruling. In an 

order dated November 7, 2011, the circuit court noted that Sarah was not a third party to 

Mary’s pending 2010 amended petition to modify.

¶ 32 On February 22, 2012, the circuit court9denied Mary’s motion to reconsider the court’s 

May 18, 2011 ruling, finding that since the inception of the case, Mary had “retained the 

services of at least eleven (11) attorneys and ha[d] issued at least 73 subpoenas related to 

[Steven’s] assets in this cause and nine depositions and then voluntarily nonsuited her pending 

[original September 13, 2000 petition to modify], on the eve of trial, October 15, 2008.” The 

circuit court further found that Mary admitted in her answers to Steven’s requests for 

admission that she had accused Steven, Mieko, and Sarah of fraud prior to September 28, 2008. 

The court found that, to date, Mary “has made many allegations and cast many aspersions but 

she has found no definite facts of fraudulent concealment, shown by clear and convincing 

evidence”; and that there was no evidence that Steven “intentionally misstated or concealed a 

material fact which [he] had a duty to disclose and that [Mary] detrimentally [relied] on 

[Steven’s] statement or conduct.” On that same day, February 22, 2012, the circuit court 

entered a separate order directing Steven to pay an increased amount of $765 in child support 

per month. 

¶ 33 On March 12, 2012, Steven filed a petition for attorney fees and costs (petition for attorney 

fees) along with relevant exhibits, pursuant to sections 508(a) and (b) of the Illinois Marriage 

and Dissolution of Marriage Act (750 ILCS 5/508(a), (b) (West 2010)), as well as under 

Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), for defense against the section 2-1401 

petition. The petition for attorney fees incorporated by reference Steven’s May 31, 2011 

“Motion for Attorney’s Fees or Expenses on Refusal to Admit and Motion for Statutory 

Costs,” with regard to Mary’s evasive answers to Steven’s requests for admission. The petition 

for attorney fees sought a total of $42,737.04 in fees and costs. 

¶ 34 On March 19, 2012, Mary filed a premature notice of appeal, appealing from the circuit 

court’s May 18, 2011 order dismissing with prejudice the section 2-1401 petition and the 

court’s February 22, 2012 order denying her motion to reconsider the May 18, 2011 ruling. On 

May 31, 2012, this court dismissed Mary’s appeal as premature, and remanded the case to the 

circuit court “for adjudication of [Steven’s] Petition for Attorney’s Fees, Motion for Statutory 

Costs, and Motion for Attorney’s Fees for Expenses on Refusal to Admit.”

¶ 35 On November 27, 2012, on remand, a hearing was held on Steven’s petition for attorney 

fees. Evidence presented at the hearing included the testimony of Steven’s counsel, Attorney

Verr, regarding the expenditure of his time and effort in defending against Mary’s section 

2-1401 petition and regarding litigation over Steven’s requests for admission.

 

8

Presided over by Judge Pamela Loza. 

9

Presided over by Judge Pamela Loza. 
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¶ 36 On February 5, 2013, the circuit court10 entered an order, pursuant to Illinois Supreme 

Court Rule 219(b) (eff. July 1, 2002) and section 508(b) of the Illinois Marriage and 

Dissolution of Marriage Act (750 ILCS 5/508(b) (West 2012)), granting attorney fees and 

costs in the amount of $31,977.83. The circuit court specifically found that there was “no just 

cause” for Mary’s “refusal to answer [Steven’s] Request to Produce which was properly 

propounded upon her”; that Steven’s requests for admission were “substantive”; that Steven 

was entitled to fees as a result of Mary’s either refusing to answer or changing her responses in 

answer to Steven’s requests for admission; that Mary’s action in failing to properly answer the 

requests for admission was “without compelling cause or justification and therefore [Steven] 

[was] entitled to reasonable and necessary fees”; that Mary “deliberately prevaricated” her 

answers in the requests for admission in open court on March 14, 2011, when “twelve (12) of 

the fifty (50) answers were changed from ‘deny’ to ‘admit’ which needlessly increased the cost 

of litigation”; and that the hourly rate of $350 charged by Steven’s counsel, Attorney Verr, was 

“fair and reasonable given the complexity of the issues” and Attorney Verr had been licensed 

to practice law in Illinois since 1986. 

¶ 37 On February 11, 2013, Mary, by Attorney Schusteff, filed a motion to reconsider11 the 

court’s February 5, 2013 order. On October 31, 2013, following a hearing on Mary’s motion to 

reconsider the court’s February 5, 2013 order, the circuit court12 denied the motion by finding 

Attorney Verr’s fees to be fair and reasonable; by finding that it had actually reduced 

one-quarter of the fees originally requested by Attorney Verr and the court “gave him no travel 

time, which he [was] entitled to”; and by finding that Mary should take some responsibility for 

the fact that the litigation had been ongoing since 1995. 

¶ 38 On November 5, 2013, Mary filed a timely notice of appeal. 

¶ 39 ANALYSIS 

¶ 40 We determine the following issues on appeal: (1) whether the circuit court erred in 

dismissing with prejudice Mary’s section 2-1401 petition, which sought to vacate the 1997 

judgment regarding child support; and (2) whether the circuit court erred in imposing a total of 

$31,977.83 in attorney fees and costs upon Mary. 

¶ 41 This court has jurisdiction over this appeal pursuant to Illinois Supreme Court Rule 

304(b)(3) (eff. Jan. 1, 2006), which makes appealable, without the necessity of a special 

finding by the court, judgments and orders “granting or denying any of the relief prayed in a 

petition under section 2-1401 of the Code of Civil Procedure.” Ill. S. Ct. R. 304(b)(3) (eff. Jan. 

1, 2006). 

¶ 42 We first determine whether the circuit court erred in dismissing with prejudice Mary’s 

section 2-1401 petition, which sought to “void” the original 1997 judgment on the basis of 

fraud. A circuit court’s judgment on the pleadings or a dismissal of a section 2-1401 

proceeding is reviewed de novo. In re Marriage of Streur, 2011 IL App (1st) 082326, ¶ 30. 

 

10Presided over by Judge Pamela Loza. 

11Mary’s pleading was entitled a “Motion to Vacate.” However, the circuit court later characterized 

the “Motion to Vacate” as a “Motion for Reconsideration,” to which Mary’s counsel raised no 

objection. 

12Presided over by Judge Pamela Loza. 
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¶ 43 Mary argues pro se on appeal that the circuit court erred in dismissing, with prejudice, her 

section 2-1401 petition, where the petition was well-pled in alleging that, during the time 

leading up to the parties’ execution of the September 13, 1996 settlement agreement, which 

was then incorporated into the 1997 judgment, Steven had falsely represented to Mary and the 

court that he had limited income and assets, but had in fact fraudulently concealed other assets 

and property that he owned. Mary alleged that the section 2-1401 petition also made well-pled 

allegations that she was misled by Steven’s misrepresentations and was thereby fraudulently 

induced to agree to the terms of the settlement agreement for child support reflecting his 

purported limited income and assets. Mary further argues that she was entitled to an 

evidentiary hearing, rather than just oral arguments as the circuit court held, on her well-pled 

section 2-1401 petition in order to “fully vet” the issue of “due diligence.” Mary further 

contends that, even if an evidentiary hearing was not required, the circuit court erred in finding 

that she was not duly diligent in filing the section 2-1401 petition. 

¶ 44 Steven counters that the circuit court properly dismissed Mary’s section 2-1401 petition, 

where it was filed outside the statute of limitations and Mary has failed to plead, and could 

never show, that she exercised due diligence in filing the section 2-1401 petition. Specifically, 

Steven argues that the 1997 judgment was not “void” as Mary claims, because the circuit court 

possessed both personal and subject matter jurisdiction over the child support matter. He 

further contends that Mary was not entitled to a full evidentiary hearing on her section 2-1401 

petition, and points out that Mary was afforded a full and fair opportunity to challenge Steven’s 

motion to dismiss her petition. Steven contends that the section 2-1401 petition was properly 

dismissed based on Mary’s own judicial admissions that she had known of the alleged “fraud” 

more than two years prior to the filing of her dilatory section 2-1401 petition. He further argues 

that Mary had been litigating her “fraud” conspiracy theories against Steven for over a decade 

before she filed the instant section 2-1401 petition; that she had long used extensive discovery 

and litigation in an attempt to substantiate her spurious claims; that the filing of the instant 

section 2-1401 petition was a “sham” used to bypass the statutory bar against seeking 

retroactive child support; and that all of the exhibits used to support the claims in her section 

2-1401 petition were either filed in the record of this case for a previous petition to modify 

child support or were available in the Cook County recorder of deeds office more than six 

years prior to the filing date of the section 2-1401 petition. 

¶ 45 Section 2-1401 of the Code provides a statutory mechanism by which a final order or 

judgment may be vacated or modified more than 30 days after its entry. 735 ILCS 5/2-1401 

(West 2010). A petition brought under this provision is not a continuation of the original 

proceeding, but a commencement of a new cause of action, subject to the rules of civil 

procedure, with the purpose of bringing to the attention of the circuit court facts not of record 

which, if known by the court at the time judgment was entered, would have prevented its 

rendition. In re Marriage of Streur, 2011 IL App (1st) 082326, ¶ 30; In re Marriage of Buck, 

318 Ill. App. 3d 489, 493 (2000). A section 2-1401 petitioner bears the burden to allege and 

prove facts sufficient to justify relief. In re Marriage of Buck, 318 Ill. App. 3d at 493. “Where 

a section 2-1401 petition fails to state a cause of action or shows on its face that the petitioner is 

not entitled to relief, the petition is subject to a motion to dismiss.” Id. A motion to dismiss a 

section 2-1401 petition is to be considered in the same manner as a civil complaint, and admits 

all well-pleaded facts. Id. A motion to dismiss is granted where it clearly appears that no set of 

facts could ever be proved that would entitle the plaintiff to recover. Id. 
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¶ 46 To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth 

specific factual allegations supporting each of the following elements: (1) the existence of a 

meritorious claim or defense; (2) due diligence in presenting that claim or defense in the 

original action; and (3) due diligence in presenting the section 2-1401 petition. In re Marriage 

of Streur, 2011 IL App (1st) 082326, ¶ 30. Specifically, to set aside a judgment based on newly 

discovered evidence, the evidence must be such as could not reasonably have been discovered 

at the time of or prior to the entry of the judgment. In re Marriage of Buck, 318 Ill. App. 3d at 

493. A section 2-1401 petition must be filed within two years of entry of the relevant final 

judgment, but time during which the ground for relief is fraudulently concealed is excluded 

from the two-year period. 735 ILCS 5/2-1401(c) (West 2010). To prove fraudulent 

concealment in a section 2-1401 petition, the petitioner must prove by clear and convincing 

evidence that the respondent intentionally misstated or concealed a material fact which the 

respondent had a duty to disclose and that the petitioner detrimentally relied on the 

respondent’s statement or conduct. In re Marriage of Himmel, 285 Ill. App. 3d 145, 148 

(1996). 

¶ 47 In the instant case, Mary filed her section 2-1401 petition on September 29, 2010, over 13 

years after the entry of the 1997 judgment, seeking to vacate the 1997 judgment on the basis of 

fraud. The petition alleged that, unbeknownst to Mary, at the time the parties entered into the 

1996 settlement agreement–which was later incorporated into the 1997 judgment–Steven was 

a partner of the law firm Berg, Repel & Berg; Steven had been gainfully employed since 1986 

and was a partner of the law firm since November 1992; Steven obtained a $206,250 mortgage 

on the Chicago property located at 1852 W. Thomas Street, as well as a $41,000 home equity 

loan, on December 4, 1996; the $41,000 home equity loan was recorded with the Cook County 

recorder five days before the entry of the 1997 judgment; Steven quitclaimed property located 

at 1937 N. Damen Avenue in Chicago to his then-wife, Mieko, in December 1996, which was 

not recorded until February 20, 1998; Steven regained ownership of the Damen Avenue 

property after the 1997 judgment and before May 2000; and Steven conveyed his 50% interest 

in the Damen Avenue property to Mieko under their divorce decree in May 2000. The petition 

further alleged, without setting forth specific factual allegations, that in light of Steven’s 

“intentional marital misrepresentations” and Mary’s reasonable reliance upon them “which he 

knew would cause Mary to accept a settlement agreement which provided for significantly less 

child support obligations, or omit, altogether, obligations which would otherwise have been 

agreed upon,” the 1997 judgment must be vacated or modified.

¶ 48 On April 18, 2011, Steven filed a section 2-619 motion to dismiss the section 2-1401 

petition, arguing, inter alia, that Mary was time-barred from alleging fraudulent concealment 

against him, where she had judicially admitted, as a result of her answers to his requests for 

admission, that she was aware of the supposed “fraud” more than two years prior to the filing 

of the section 2-1401 petition. On May 18, 2011, following a hearing on Steven’s motion to 

dismiss, the circuit court dismissed the section 2-1401 petition with prejudice and granted 

Steven leave to file a motion for costs. On February 22, 2012, the circuit court denied Mary’s 

motion to reconsider the May 18, 2011 ruling, finding that since the inception of the case, 

Mary had “retained the services of at least eleven (11) attorneys and ha[d] issued at least 73 

subpoenas related to [Steven’s] assets in this case and nine depositions and then voluntarily 

nonsuited her pending [original September 13, 2000 petition to modify], on the eve of trial, on 

October 15, 2008.” The circuit court further found that Mary admitted in her answers to 
- 11 - 

Steven’s requests for admission that she had accused Steven, Mieko, and Sarah of fraud prior 

to September 28, 2008. The court found that, to date, Mary “has made many allegations and 

cast many aspersions but she has found no definite facts of fraudulent concealment, shown by 

clear and convincing evidence”; and that there was no evidence that Steven “intentionally 

misstated or concealed a material fact which [he] had a duty to disclose and that [Mary] 

detrimentally [relied] on [Steven’s] statement or conduct.”

¶ 49 Because the ground for relief alleged13 in Mary’s section 2-1401 petition was fraudulent 

concealment, the time for filing the section 2-1401 petition was tolled beyond the two-year 

period after the entry of the 1997 judgment. However, such tolling of time is not without end. 

In In re Marriage of Streur, a former wife filed a section 2-1401 petition, seeking to vacate a 

portion of a judgment for dissolution of marriage which contained the parties’ marital 

settlement agreement. In re Marriage of Streur, 2011 IL App (1st) 082326, ¶ 7. The former 

wife alleged in her section 2-1401 petition that prior to the entry of the dissolution of marriage 

judgment, the former husband made false statements of material fact regarding his income and 

assets upon which she relied, and that she could not have presented the matter to the court 

before the entry of judgment. Id. The former wife also alleged that since the judgment was 

entered, the former husband had continued to refuse to provide her with copies of his pay stubs, 

W-2 statements, tax returns, and other documents as required by the marital settlement 

agreement. Id. The petition also alleged breach of fiduciary duty, conversion, and unjust 

enrichment, and sought an accounting and the imposition of a constructive trust. Id.

Subsequently, the former husband filed a motion to strike and dismiss the section 2-1401 

petition, arguing that the former wife failed to allege sufficient facts to state a claim, that the 

petition was time-barred, and that her claims were barred by the parties’ judgment for 

dissolution of marriage. Id. ¶ 8. The circuit court then dismissed with prejudice the section 

2-1401 petition, finding that it was time-barred because the section 2-1401 petition was filed 

two years after the former wife’s filing of a “ ‘Second Amended Petition for Rule’ ” to show 

cause on “ ‘essentially the same grounds’ ” as found in the section 2-1401 petition. Id. On 

appeal, this court affirmed dismissal of the section 2-1401 petition, finding that because the 

ex-wife had filed a second petition for rule to show cause on June 2, 2004, alleging that the 

ex-husband had failed to make a full and complete disclosure of his income from all sources in 

an effort to evade his full obligation of unallocated family support, it was “clear that she was 

aware of a possible claim on that date, but waited until November 2006, more than two years 

later, to file her section 2-1401 petition claim.” Id. ¶ 33. The Streur court noted that, because 

the allegations in both pleadings were the same, the ex-wife had knowledge of a “possible 

claim” more than two years earlier and, thus, the section 2-1401 petition was time barred. Id. In 

other words, the Streur court found that, even if the statute of limitations was tolled as a result 

of the former husband’s fraud, it was clear from the June 2, 2004 pleading that the former wife 

“had knowledge of a possible basis for vacating the judgment but waited more than two years 

to file that petition.” Id. Thus, the Streur court found that the former wife failed to timely file 

her section 2-1401 petition and the circuit court properly dismissed it. Id. 

 

13At the May 18, 2011 hearing, counsel for Steven argued that “fraudulent misrepresentation” 

rather than “fraudulent concealment” was alleged in Mary’s section 2-1401 petition. However, in 

response, counsel for Mary pointed out that the issue of fraudulent concealment was articulated in her 

response to Steven’s motion to dismiss the petition. 
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¶ 50 Like In re Marriage of Streur, in the case at bar, Mary was aware of a “possible claim” or 

“possible basis” for vacating the 1997 judgment more than two years prior to the filing of her 

section 2-1401 petition on September 29, 2010. We observe several bases in support of this 

conclusion. First, as discussed, in her answers to Steven’s requests for admission, of which 12 

were changed from “denials” to “admissions” during a hearing before the court on March 14, 

2011, Mary admitted the following statements (request Nos. 60, 126 and 127): 

“60. Prior to September 28, 2008, [Mary] accused [Steven] of fraud with respect to 

the entry of the [1997 judgment]. 

 126. Before September 28, 2008, [Mary] confronted [Mieko] and accused her of 

fraud. 

 127. Before September 28, [sic] [Mary] confronted [Sarah] and accused her of 

fraud.”

Because Mary’s admissions as detailed above constituted “judicial admissions” which 

dispensed with proof of a fact claimed to be true, the issue of whether Mary knew of the 

possibility of fraudulent concealment on the part of Steven with respect to entry of the 1997 

judgment was removed from contention. See Dremco, Inc. v. Hartz Construction Co., 261 Ill. 

App. 3d 531, 535-36 (1994) (judicial admissions are formal acts of a party or its attorney in 

court, “dispensing with proof of a fact claimed to be true, and are used as a substitute for legal 

evidence at trial”; judicial admissions “include admissions in pleadings, as well as admissions 

in open court, stipulations, and admissions made pursuant to requests to admit”). Because 

Mary judicially admitted that, prior to September 28, 2008, she had accused Steven of–thus, 

had knowledge of–fraud with respect to the entry of the 1997 judgment, the filing of her 

section 2-1401 petition more than two years later, on September 29, 2010, was dilatory and 

time-barred. 

¶ 51 Second, the section 2-1401 petition alleged that Steven had fraudulently concealed from 

Mary his ownership of property located at 1852 W. Thomas Street and 1937 N. Damen Avenue 

in Chicago. Specifically, allegations in the section 2-1401 petition pointed out that Steven’s 

August 1996 Rule 13.3 financial disclosure statements, which predated the parties’ execution 

of the settlement agreement, represented that Steven had transferred the Thomas Street 

property to his parents, William and Mary Repel, in 1993. The record shows that, during 

discovery relating to Mary’s September 13, 2000 petition to modify child support, Mary 

engaged in extensive discovery on Steven’s income and assets. In June 2004, William Repel 

(William) testified in his deposition that he did not recall ever possessing an ownership interest 

in the Thomas Street property. Indeed, Mary’s own allegations in the section 2-1401 petition 

stated that William’s deposition testimony contradicted Steven’s claim in his August 1996 

financial disclosure statements that Steven had “transferred [in 1993] *** property located at 

1852 Thomas [sic], Chicago Illinois to William Repel and Mary Repel, his father and mother, 

respectively.” Thus, it could reasonably be concluded that, at least as early as June 2004, more 

than six years before filing the section 2-1401 petition, Mary knew of a possible claim of the 

alleged fraudulent concealment of assets by Steven during the period leading up to the entry of 

the 1997 judgment. 

¶ 52 Third, the record also contains other pleadings and documents by Mary, predating the 

section 2-1401 petition by over two years, which detailed the same type of fraudulent conduct 

alleged in the section 2-1401 petition. In a letter dated April 6, 2001, Mary informed the 

Attorney Registration and Disciplinary Commission (ARDC) that Steven had “consistently 
- 13 - 

distorted and outright fabricated IRS reports to conceal his true earnings and responsibilities to 

his legal offspring,” by highlighting the existence of certain real estate properties that she 

claimed were obtained fraudulently–including the Damen Avenue property that was the 

subject of her section 2-1401 petition. The record also shows that, in a legal malpractice 

lawsuit filed by Mary against her former attorneys at Schiller DuCanto & Fleck (SDF), she 

alleged in her complaint that SDF was retained in 2006 to seek return of assets or monies 

which Steven had dissipated, hidden or transferred–including the Thomas Street and Damen 

Avenue properties, which were the subject of the section 2-1401 petition. Thus, we find that 

the filing of the section 2-1401 petition in 2010, more than two years after Mary’s belief, if not 

outright knowledge, of Steven’s alleged fraudulent concealment of his assets, was also 

time-barred on these bases. Accordingly, we conclude that Mary could not sufficiently plead or 

prove that she exercised due diligence in presenting the section 2-1401 petition. See generally 

In re Marriage of Goldsmith, 2011 IL App (1st) 093448, ¶ 49 (no due diligence shown where, 

rather than engage in formal discovery, ex-wife elected to accept ex-husband’s warranty and 

representation that he had made a full and complete disclosure of his property). 

¶ 53 Further, even if not time-barred, we find that Mary’s section 2-1401 petition was properly 

dismissed where it showed on its face that Mary was not entitled to relief. See In re Marriage 

of Buck, 318 Ill. App. 3d at 493 (“[w]here a section 2-1401 petition fails to state a cause of 

action or shows on its face that the petitioner is not entitled to relief, the petition is subject to a 

motion to dismiss”). Mary’s section 2-1401 petition alleged no specific facts regarding how 

Steven intentionally misstated or concealed a material fact, in support of the claim of 

fraudulent concealment, but instead alleged conclusory statements that Steven made 

“intentional material misrepresentations” which “he knew would cause Mary to accept a 

settlement agreement [providing] for significantly less child support obligations.” The petition 

alleged that, unbeknownst to Mary, Steven had been a partner of the law firm Berg, Repel & 

Berg since November 1992. However, we find that Steven’s August 1996 Rule 13.3 financial 

disclosure statements, which were produced in response to Mary’s written discovery relating 

to his assets and income, specified that he was “self-employed” and that he earned a monthly 

gross income of $2,008. Nothing in the petition’s allegations or its exhibits showed that Steven 

received a monthly income greater than what he had reported in the August 1996 financial 

disclosure statements. 

¶ 54 Further, the section 2-1401 petition alleged that on December 4, 1996, “forty days before 

the entry of the Settlement Agreement,” Steven obtained a $206,250 mortgage and a $41,000 

home equity loan on the Thomas Street property, despite his representation in the August 1996 

financial disclosure statements that ownership of the Thomas Street property had been 

transferred to his parents in 1993. The petition included two exhibits showing copies of the 

$206,250 mortgage note, which was recorded on December 12, 1996, and the $41,000 home 

equity loan agreement, which was recorded on January 8, 1997. The petition also alleged that 

on December 10, 1996, “thirty-four days before the entry of the Settlement Agreement,” 

Steven quitclaimed the Damen Avenue property to his then-wife, Mieko, and that the quitclaim 

deed was not recorded until February 20, 1998. We find that Mary failed to show that she was 

entitled to relief on this basis. First, we note that the parties’ settlement agreement was actually 

“made and entered into” on September 13, 1996, as noted in the 1997 judgment which 

incorporated the settlement agreement. Because the September 1996 settlement agreement 

predated the mortgage and loan transactions surrounding the Thomas Street property and the 
- 14 - 

conveyance of the Damen Avenue property in December 1996, the section 2-1401 petition 

failed to sufficiently show on its face how Mary detrimentally relied upon Steven’s statements 

in entering into the settlement agreement. The section 2-1401 petition made no allegations that 

Steven in fact had an ownership interest in the Thomas Street and Damen Avenue properties 

during the continuous period prior to and after the execution of the settlement agreement, and 

we decline to speculate when or how he came into possession of these properties. Second, even 

assuming that the execution of the settlement agreement occurred simultaneously with the 

entry of the 1997 judgment on January 13, 1997, after the December 1996 loan transactions for 

the Thomas Street and Damen Avenue properties, Mary has failed to allege how, at the very 

least, she could not reasonably have discovered prior to the entry of the 1997 judgment, the 

existence of the mortgage note and home equity loan interest for the Thomas Street 

property–which were recorded with the Cook County recorder in December 1996. 

¶ 55 Notwithstanding the foregoing, Mary makes various arguments on appeal that none of the 

pleadings she had filed prior to the filing of her section 2-1401 petition in 2010 contained 

allegations of fraud against Steven for the period leading up to the entry of the 1997 judgment. 

She claims that this showed that she had no proof of fraudulent acts which occurred prior to the 

1997 judgment date until such time that she discovered that Steven had in fact owned property 

and obtained mortgages, and she speculates that “he could not have been in default of his 

student loans and would reasonably have had concurrent substantial sums of money near and 

during the time he persuaded [her] to enter into the 1997 [judgment].” We do not see how this 

argument advances Mary’s position in any way. Whether or not Mary had alleged in her 

previous pleadings specific fraudulent conduct against Steven regarding the period leading up 

to the 1997 judgment did not negate the fact that, as discussed, she was aware of a “possible 

claim” or “possible basis” for vacating the 1997 judgment more than two years prior to the 

filing of her section 2-1401 petition on September 29, 2010. See In re Marriage of Streur, 2011 

IL App (1st) 082326, ¶ 33. It is significant to note that all of the exhibits in support of Mary’s 

section 2-1401 petition (exhibits A to I), either were already of record during litigation of 

Mary’s previous petitions to modify child support or at least were available to Mary as a matter 

of public record more than two years prior to the filing of the section 2-1401 petition. 

¶ 56 Mary makes several additional arguments in support of her contention, including her claim 

that she was entitled to rely upon the representations made by Steven and that she was 

“sufficiently misled” by his filing of a Rule 298 application for the waiver of court fees in 1995 

and his August 1996 financial disclosure statements, “which would permit a reasonable person 

to reach the conclusion that any discovery would be futile and fruitless.” A thorough review of 

those arguments leads us to reject them as well, since nothing has been argued that would 

excuse Mary’s lack of diligence.

¶ 57 Mary further argues that the circuit court erred in not conducting an evidentiary hearing on 

her section 2-1401 petition, but instead, only held oral arguments before making its May 18, 

2011 ruling to dismiss her petition. In support of this argument, Mary cites In re Marriage of 

Buck, 318 Ill. App. 3d 489; G.M. Sign, Inc. v. Schane, 2013 IL App (2d) 120434; In re 

Marriage of Johnson, 2011 IL App (1st) 102826; Minch v. George, 395 Ill. App. 3d 390 

(2009); and Nessler v. Nessler, 387 Ill. App. 3d 1103 (2008). We find Mary’s reliance on these 

cases to be misplaced as none of those cases involve judicial admissions, as in the instant case. 

Rather, those cases involve questions of fact that needed to be resolved or a record that was not 

sufficiently developed to enable the court to make a ruling without an evidentiary hearing. 
- 15 - 

Thus, we find that the circuit court in the case at bar was not required to conduct a full 

evidentiary hearing prior to dismissing the section 2-1401 petition. Accordingly, based on the 

foregoing, we hold that the circuit court did not err in dismissing with prejudice Mary’s section 

2-1401 petition. 

¶ 58 We next determine whether the circuit court erred in imposing a total of $31,977.83 in 

attorney fees and costs upon Mary. We review this issue under the abuse of discretion standard. 

See In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 67; First National Bank of LaGrange 

v. Lowrey, 375 Ill. App. 3d 181, 218 (2007). 

¶ 59 On March 12, 2012, Steven filed a petition for attorney fees along with relevant exhibits, 

pursuant to sections 508(a) and (b) of the Illinois Marriage and Dissolution of Marriage Act 

(750 ILCS 5/508(a), (b) (West 2010)), as well as under Illinois Supreme Court Rule 137 (eff. 

Feb. 1, 1994), for costs he incurred in defense against Mary’s section 2-1401 petition. Steven’s 

petition for attorney fees incorporated by reference his previous May 31, 2011 motions for fees 

and costs with regard to Mary’s evasive answers to his November 22, 2010 requests for 

admission–the “motion for attorney’s fees or expenses on refusal to admit” and the “motion for 

statutory costs.” On November 27, 2012, a hearing was held on Steven’s petition for attorney 

fees. Evidence presented at the hearing included the testimony of Steven’s counsel, Attorney 

Verr, regarding the expenditure of his time and effort in defending against Mary’s section 

2-1401 petition and regarding litigation over Steven’s requests for admission. On February 5, 

2013, the circuit court entered an order, pursuant to Illinois Supreme Court Rule 219(b) (eff. 

July 1, 2002) and section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (750 

ILCS 5/508(b) (West 2012)), granting Steven attorney fees and costs in the amount of 

$31,977.83. On October 31, 2013, the circuit court denied Mary’s motion to reconsider the 

February 5, 2013 order. 

¶ 60 Mary argues on appeal that the circuit court improperly utilized section 508(b), rather than 

section 508(a) of the Illinois Marriage and Dissolution of Marriage Act, in imposing attorney 

fees upon her. She contends that because the award of attorney fees in this case arose out of the 

defense of her section 2-1401 petition and the circuit court never imposed sanctions under Rule 

137, section 508(a) governs and the circuit court erred in not weighing the parties’ respective 

incomes prior to imposing fees upon her. Mary further argues that she was unable to pay the 

attorney fees imposed upon her, that she not be required to exhaust her financial estate to do so, 

and that Steven was able to pay the attorney fees that he sought to impose upon her. Mary 

further contends that, during the November 27, 2012 hearing on Steven’s petition for attorney 

fees, the circuit court erroneously prevented Mary’s counsel from introducing certain evidence 

to establish that Steven was more than capable of paying his own attorney fees–including 

inquiring about the details of Steven’s ownership of a Porsche vehicle in 2010; asking 

Attorney Verr on cross-examination regarding certain properties that may be encumbering 

Steven’s primary residence in Highland Park, Illinois; and introducing evidence to show that 

Sarah’s monetary contributions to Steven “count[ed] as income.”

¶ 61 Steven counters that the circuit court did not abuse its discretion in imposing fees and costs 

against Mary pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage 

Act. He contends that because his May 31, 2011 “Motion for Attorney’s Fees or Expenses on 

Refusal to Admit” (pursuant to Supreme Court Rules 219(b) and Rule 216(c)) and “Motion for 

Statutory Costs” were pending before the court and properly incorporated into his March 12, 

2012 petition for attorney fees brought pursuant to sections 508(a) and (b) of the Illinois 
- 16 - 

Marriage and Dissolution of Marriage Act, the circuit court did not err in sanctioning Mary 

under Rule 219(b) and section 508(b). He points out that during the November 27, 2012 

hearing on his petition for attorney fees, counsel for Mary had cross-examined Attorney Verr 

for over three hours, and testimonial evidence from Attorney Verr included his explanations 

for the expenditure of his time and effort in defending against the section 2-1401 petition and 

the litigation surrounding the requests for admission. Steven argues that, in imposing sanctions 

against Mary under Rule 219(b) and section 508(b), the circuit court properly found that Mary 

had “deliberately prevaricated” her answers to Steven’s requests for admission, that she had 

“needlessly increased the cost of litigation,” and that Attorney Verr’s fees were fair and 

reasonable. Steven further contends that the circuit court need not consider the parties’ 

respective income and assets under the section 508(b), and that, as a matter of law, no evidence 

of Steven’s finances was necessary.

¶ 62 Section 508 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) 

provides in part the following: 

“(a) The court from time to time, after due notice and hearing, and after considering 

the financial resources of the parties, may order any party to pay a reasonable amount 

for his own or the other party’s costs and attorney’s fees. *** Awards may be made in 

connection with the following: 

 * * * 

 (4) The maintenance or defense of a petition brought under Section 2-1401 of 

the Code of Civil Procedure seeking relief from a final order or judgment under this 

Act. 

 * * * 

 (b) In every proceeding for the enforcement of an order or judgment when the court 

finds that the failure to comply with the order or judgment was without compelling 

cause or justification, the court shall order the party against whom the proceeding is 

brought to pay promptly the costs and reasonable attorney’s fees of the prevailing 

party. If non-compliance is with respect to a discovery order, the non-compliance is 

presumptively without compelling cause or justification, and the presumption may 

only be rebutted by clear and convincing evidence. If at any time a court finds that a 

hearing under this Act was precipitated or conducted for any improper purpose, the 

court shall allocate fees and costs of all parties for the hearing to the party or counsel 

found to have acted improperly. Improper purposes include, but are not limited to, 

harassment, unnecessary delay, or other acts needlessly increasing the cost of 

litigation.” (Emphases added.) 750 ILCS 5/508 (West 2012). 

¶ 63 Supreme Court Rule 219(b) provides: 

“If a party, after being served with a request to admit the genuineness of any documents 

or the truth of any matters of fact, serves a sworn denial thereof, and if the party 

requesting the admissions thereafter proves the genuineness of the document or the 

truth of the matter of fact, the requesting party may apply to the court for an order 

requiring the other party to pay the requesting party the reasonable expenses incurred in 

making the proof, including reasonable attorney’s fees. Unless the court finds that there 

were good reasons for the denial or that the admissions sought were of no substantial 
- 17 - 

importance, the order shall be made.” (Emphasis added.) Ill. S. Ct. R. 219(b) (eff. July 

1, 2002).

¶ 64 We find that the circuit court did not abuse its discretion in imposing attorney fees and 

costs upon Mary under section 508(b) of the Marriage Act and Rule 219(b). The primary 

reason for the circuit court’s imposition of fees and costs upon Mary was for her refusal to 

answer or her changing her answers to Steven’s requests for admission. The circuit court is 

presumed to know the law and apply it properly, absent an affirmative showing to the contrary 

in the record. In re N.B., 191 Ill. 2d 338, 345 (2000). In its February 5, 2013 order imposing 

$31,977.83 in attorney fees and costs upon Mary, which was less than the amount of fees 

requested by Attorney Verr, the circuit court specifically found that Mary’s action in failing to 

properly answer Steven’s requests for admission was “without compelling cause or 

justification,” and found that Mary “deliberately prevaricated” her answers in the requests for 

admission when, in open court on March 14, 2011, she changed “twelve (12) of the fifty (50)” 

answers from “deny” to “admit” which “needlessly increased the cost of litigation.” The circuit 

court also found that the hourly rate of $350 per hour by Attorney Verr was “fair and 

reasonable given the complexity of the issues and [Attorney Verr] had been licensed to 

practice law *** since 1986.” Our review of the circuit court’s findings leads us to conclude 

that the circuit court knew the law and applied it correctly. Because the crux of the circuit 

court’s February 5, 2013 findings pertained to Mary’s conduct in responding to Steven’s 

discovery requests, and the mandatory language of “shall” contained in section 508(b) required 

the court to impose fees against the party who fails to comply with a court’s discovery orders, 

we find that the circuit court properly imposed fees and costs against Mary under section 

508(b) rather than section 508(a) of the Marriage Act. We further find that because the plain 

language of section 508(b) does not require a court to weigh the parties’ respective income and 

assets before imposing fees upon the non-compliant party, we necessarily reject Mary’s 

various arguments that the circuit court erred in failing to weigh the parties’ income and 

consider the parties’ respective ability to pay.

¶ 65 Mary contends that, even if section 508(b) of the Marriage Act applied, Steven had “never 

proved” that her answers to his requests for admission were false or improper, as required by 

Rule 219(b). She contends that an evidentiary hearing should have been held to allow for the 

presentation of witnesses and for Mary to testify about her answers to the requests for 

admission. We find Mary’s argument to be unpersuasive and suggestive of a desire to extend 

the litigation. As noted, Rule 219(b) provides that “[i]f a party, after being served with a 

request to admit the genuineness of any documents or the truth of any matters of fact, serves a 

sworn denial thereof, and if the party requesting the admissions thereafter proves the 

genuineness of the document or the truth of the matter of fact, the requesting party may apply 

to the court for an order requiring the other party to pay the requesting party the reasonable 

expenses incurred in making the proof, including reasonable attorney’s fees.” Ill. S. Ct. R. 

219(b) (eff. July 1, 2002). Because Mary, represented by Attorney Schusteff, changed 12 of 

her answers from “denials” to “admissions” in open court at the March 14, 2011 hearing on 

Steven’s motion to strike her answers to his requests for admission–which was filed on the 

basis that Mary’s answers lacked truthful foundation, were belied by the record and were 

otherwise improper–Steven need not additionally “prove” the truth of the matters asserted with 

regard to his requests for admission that Mary had initially denied or raised an objection. We 

further reject Mary’s cited cases in support of her argument. None of those cases involved a 
- 18 - 

party who changed his answers from denials to admissions in open court in acknowledging the 

truthfulness of the requested matters. See McGrath v. Botsford, 405 Ill. App. 3d 781 (2010); 

Fraser v. Jackson, 2014 IL App (2d) 130283; In re Marriage of Johnson, 2011 IL App (1st) 

102826; Mohica v. Cvejin, 2013 IL App (1st) 111695; Serrano v. Rotman, 406 Ill. App. 3d 900 

(2011). 

¶ 66 Mary also makes various arguments in the alternative that Steven tendered “improper or 

unreasonable billing,” and points to several billing entries which she claims demonstrated 

overbilling or unreasonable billing practices. However, during the November 27, 2012 hearing 

on Steven’s petition for attorney fees, counsel for Mary had the opportunity to cross-examine 

Attorney Verr regarding his billing statements, which were included in Steven’s petition for 

attorney fees. Counsel for Mary questioned Attorney Verr about the specifics of many of the 

same billing entries of which Mary now complains on appeal, and the court heard counsel’s 

arguments on this issue. During the October 31, 2013 hearing on Mary’s motion to reconsider 

the court’s imposition of attorney fees and costs, the court again heard Mary’s counsel make 

various arguments regarding specific billing entries submitted by Attorney Verr. Based on our 

examination of the record, we cannot conclude that the circuit court’s imposition of 

$31,977.83 in attorney fees and costs upon Mary, was unreasonable and an abuse of discretion. 

The record shows that, although Steven’s petition for attorney fees had originally sought 

$42,737.04 in fees and costs, after considering the parties’ arguments and evidence, the circuit 

court reduced the amount of the award by $10,759.21, and only imposed a total of $31,977.83 

in fees and costs against Mary. In its ruling, the circuit court specifically noted that it had 

reduced at least one-quarter of the fees originally sought by Attorney Verr; that the court did 

not award Attorney Verr any “travel time, which he [was] entitled to”; that it “could have been 

a lot more generous, *** taking into consideration also [Mary’s] income”; that Mary should 

take some responsibility for the fact that the litigation had been ongoing since 1995; and that 

Attorney Verr’s hourly rate of $350 was “fair and reasonable given the complexity of the 

issues”; and that Attorney Verr, a Harvard College graduate, had been practicing law since 

1986. Therefore, based on the foregoing, we hold that the circuit court’s imposition of 

$31,977.83 in attorney fees and costs upon Mary was not an abuse of discretion. See J.B. Esker 

& Sons, Inc. v. Cle-Pa’s Partnership, 325 Ill. App. 3d 276, 282-83 (2001) (a determination of 

reasonableness in imposing attorney fees is a matter of the circuit court’s discretion; the court 

may look to factors such as (1) the skill and standing of the attorney; (2) the nature of the case; 

(3) the novelty of the issues involved; (4) the significance of the case; (5) the degree of 

responsibility required; (6) the customary charges for comparable services; (7) the benefit to 

the client; and (8) the reasonable connection between the fees sought and the amount involved 

in the litigation). 

¶ 67 In light of our holding, we need not address Steven’s additional arguments that Mary had 

“unclean hands” or his arguments that her section 2-1401 petition was a sham that was filed 

only because she was statutorily foreclosed from seeking retroactive modification of the child 

support payments. Further, we decline to impose sanctions against Mary under Illinois 

Supreme Court Rule 375 (eff. Feb. 1, 1994), where Steven made only conclusory arguments 

that her “appeal is frivolous and without any foundation in law or fact,” and we cannot 

conclude that the appeal was not brought in good faith. 

¶ 68 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. 
- 19 - 

¶ 69 Affirmed.