                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     In re Marriage of Goldsmith, 2011 IL App (1st) 093448




Appellate Court            In re MARRIAGE OF JACQUELINE GOLDSMITH, Petitioner-
Caption                    Appellant, and GREG E. GOLDSMITH, Respondent-Appellee.



District & No.             First District, Sixth Division
                           Docket Nos. 1-09-3448, 1-10-0964 cons.


Filed                      August 26, 2011
Rehearing denied           January 20, 2012
Held                       In postjudgment proceedings based on petitioner’s allegations that
(Note: This syllabus       respondent failed to disclose certain assets, the trial court properly
constitutes no part of     concluded that petitioner’s claims lacked merit and that she failed to act
the opinion of the court   diligently in pursuing her motion to vacate the judgment that incorporated
but has been prepared      the parties’ settlement agreement, which acknowledged that in lieu of
by the Reporter of         formal discovery, the parties represented that each had made complete
Decisions for the          disclosure of his or her property to the other.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 01-D-14779; the
Review                     Hon. Lisa Ruble Murphy, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Barry H. Greenburg, Jewel N. Klein, and Jacqueline Goldsmith, all of
Appeal                     Law Firm of Barry H. Greenburg, of Chicago, for appellant.

                           Alan D. Hoffenberg, of Law Offices of Alan D. Hoffenberg, and Paul J.
                           Bargiel, of Paul J. Bargiel, P.C., both of Chicago, for appellee.


Panel                      PRESIDING JUSTICE GARCIA delivered the judgment of the court,
                           with opinion.
                           Justices Cahill and R. Gordon concurred in the judgment and opinion.


                                              OPINION

¶1           The parties agreed to the entry of a judgment of dissolution of marriage that incorporated
        a settlement agreement in which the parties acknowledged they engaged in limited discovery.
        In lieu of formal discovery, each party represented and warranted that a full and complete
        disclosure of his or her property had been made to the other. About a year and a half after the
        judgment was entered, petitioner Jacqueline Goldsmith filed a “Petition to Enforce Judgment
        or in the Alternative to Vacate the Judgment for Dissolution of Marriage,” alleging she
        discovered respondent Greg E. Goldsmith concealed three assets worth nearly $2 million.
        The circuit court granted summary judgment to the respondent. The petitioner contends the
        trial court erred when it determined that her failure to engage in formal discovery to ascertain
        the respondent’s net worth meant she did not act diligently as a matter of law to pursue a
        motion to vacate. The trial court also concluded that none of her claims over the purportedly
        undisclosed assets had merit to warrant consideration of her motion to enforce the judgment
        as a matter of law. We agree on both counts and affirm.

¶2                                       BACKGROUND
¶3          The parties had been married for 10 years when they divorced in March 2003. During the
        marriage, the respondent was a trader at the Chicago Board of Trade. According to the
        parties’ prenuptial agreement, the respondent’s seat at the Chicago Board of Trade was
        nonmarital property and his net worth at the time was $3,351,500. During the dissolution of
        marriage proceedings, respondent’s counsel disclosed to petitioner’s counsel the net worth
        of the respondent as $6,525,000. The petitioner received $1.8 million in the judgment of
        dissolution of marriage.
¶4          Prior to judgment in this case, the respondent’s counsel sent the petitioner an unsigned
        affidavit from the respondent disclosing his assets. Under the title, “My assets,” the
        respondent disclosed:
            “Waterhouse Securities             – $3,100,000
            Sage                               – $50,000


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         The Peoples Bank of Elkhorn          – $200,000
         Cambridge Bank                       – $100,000.”
¶5       The judgment of dissolution incorporated a marriage settlement agreement (MSA), in
     which the parties acknowledged they engaged in limited discovery. At issue here is paragraph
     F of the MSA.
             “WHEREAS, the parties acknowledge each of them has been fully informed of the
         estate, income, assets and liabilities of the other, and each is conversant with the estate,
         income, assets and liabilities possessed by the other. Each party represents and warrants
         they have made a full and complete disclosure of his or her property. In the event a court
         of competent jurisdiction subsequently determines either party owned or possessed
         property not disclosed during these proceedings, said property shall be distributed
         pursuant to the facts delineated in 750 ILCS 5/503.”
¶6       During the prove-up and prior to the court’s approval of the MSA, the petitioner
     explained her reliance on the respondent’s full disclosure during direct examination by her
     counsel.
             “Q. Miss Goldsmith, you have further entered into this settlement based upon various
         correspondence both with [respondent’s counsel] and from [respondent] who purportedly
         disclosed all of his assets and the values of the same, is that correct?
             A. I’m relying that that information is correct.
             Q. And in reliance on it, you entered into this settlement agreement, is that correct?
             A. On reliance, I have.”
     Her counsel continued:
             “Q. And you believe this judgment, based upon the representations, and your reliance
         on them, made by [the respondent] that [the settlement] is fair and reasonable?
             A. If it is all true, yes.”
     The court interjected:
             “THE COURT: She said if it is all true. She understood that she could have [taken]
         discovery in this matter, correct?
             [Petitioner’s Counsel]: Right.”
¶7       On September 8, 2004, the petitioner filed a petition alleging the respondent failed to
     disclose certain assets to her, which triggered a provision in the MSA that undisclosed assets
     were subject to division by the court pursuant to section 503 and enforceable under section
     511 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503, 511
     (West 2008)). Alternatively, the petitioner asked the judgment be vacated pursuant to section
     2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). The petitioner
     claimed that, despite the respondent’s representation in the MSA that he had made a full
     disclosure of his assets, she discovered he failed to disclose nearly $2 million held in three
     assets: (1) $1.3 million in a lawsuit recovery (the Pinez litigation); (2) $300,000 in jointly
     held bank stock in the Peoples Bank of Elkhorn and Cambridge Bank; and (3) approximately
     $300,000 in refunds from the 1999 amended joint income tax returns. In her pleadings, she


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       claimed she had a meritorious claim to each of the assets and she acted diligently based on
       her reliance on the asset disclosure letter and the representation and warranty in the MSA that
       the respondent had disclosed all of his property.
¶8         Regarding the first undisclosed asset, the petitioner alleged she had a right to a share in
       the monies from the Pinez litigation because the cause of action arose during the marriage
       and suit was filed during the marriage. There is no dispute that the respondent failed to
       disclose the existence of the litigation in his asset disclosure.
¶9         Regarding the second undisclosed asset, the petitioner claimed she learned in June 2004
       of the respondent’s stock ownership in the Peoples Bank of Elkhorn when he attempted to
       transfer shares of the stock solely to his name. She further claimed the bank stock was not
       disclosed to her because the respondent’s financial disclosure, listing $200,000 and $100,000
       in the respective banks, led her to assume that cash was on deposit there, not that the parties
       owned stock in each bank.
¶ 10       Regarding the third undisclosed asset, the petitioner alleged the respondent never
       disclosed that their amended 1999 joint tax returns, which the respondent filed in 2004 after
       the judgment was entered, resulted in substantial tax refunds: $279,328 from the federal
       return and $21,995 from the Illinois return. The petitioner claimed the respondent’s failure
       to disclose these potential refunds violated the representation and warranty in the MSA of
       full and complete disclosure.
¶ 11       On March 10, 2005, the respondent answered the petition, denying the petitioner had any
       rightful claim to the assets, with no assertion of an affirmative defense. In April 2008, the
       respondent filed a motion for summary judgment pursuant to section 2-1005 of the Code
       (735 ILCS 5/2-1005 (West 2008)), arguing the petitioner was not entitled to enforce the
       judgment under section 511 of the Act or a vacation of judgment under section 2-1401
       because the claims had no merit and she failed to demonstrate due diligence. On November
       18, 2009, following the filing of briefs and argument, the trial court granted the respondent’s
       motion for summary judgment: “[T]he evidence established that, at the time of the entry of
       the Judgment of Dissolution of Marriage, [the petitioner] either knew of or reasonably could
       have discovered the ‘newly discovered assets’ ***.” The court ruled the petitioner’s
       pleadings presented no credible evidence that the respondent fraudulently concealed the
       assets; nor did she assert a fraudulent concealment claim in her motion to vacate. The
       petitioner filed her timely notice of appeal on December 11, 2009.
¶ 12       The week after the petitioner filed her notice of appeal, the respondent filed a petition
       seeking attorney fees from the petitioner. The petition for attorney fees was dismissed by
       agreement on March 30, 2010. On April 2, 2010, the petitioner filed her second notice of
       appeal to ensure her first notice was not premature. The appeals were consolidated.

¶ 13                                      ANALYSIS
¶ 14       Section 2-1401 provides a comprehensive scheme for obtaining relief from a final
       judgment when 30 days or more have elapsed since its entry. 735 ILCS 5/2-1401 (West
       2008). The purpose of a section 2-1401 petition is to alert the circuit court to facts which, if
       they had been known at the time, would have precluded entry of the judgment. People v.

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       Haynes, 192 Ill. 2d 437, 461 (2000). “However, the proceeding is not intended to give the
       litigant a new opportunity to do that which should have been done in an earlier proceeding
       or to relieve the litigant of the consequences of her mistake or negligence.” In re Marriage
       of Himmel, 285 Ill. App. 3d 145, 148 (1996) (citing In re Marriage of Broday, 256 Ill. App.
       3d 699, 705 (1993)).
¶ 15        To be entitled to relief under section 2-1401 of the Code, the petitioner must set forth
       specific factual allegations showing the existence of a meritorious claim, demonstrate due
       diligence in presenting the claim to the circuit court in the original action, and act with due
       diligence in filing the section 2-1401 petition. In re Marriage of Buck, 318 Ill. App. 3d 489,
       493 (2000). To set aside a judgment based on newly discovered evidence, the petitioner must
       show the new evidence was not known to her at the time of the proceeding and could not
       have been discovered by the petitioner with the exercise of reasonable diligence. Id. Under
       section 2-1401, the petitioner bears the burden of establishing her right to relief. Smith v.
       Airoom, Inc., 114 Ill. 2d 209, 221 (1986). “Five types of final dispositions are possible in
       section 2-1401 litigation: ‘the trial judge may dismiss the petition; the trial judge may grant
       or deny the petition on the pleadings alone (summary judgment); or the trial judge may grant
       or deny relief after holding a hearing at which factual disputes are resolved.’ ” Mills v.
       McDuffa, 393 Ill. App. 3d 940, 946 (2009) (quoting People v. Vincent, 226 Ill. 2d 1, 9
       (2007)).
¶ 16        The applicable standard of review depends on which of the five dispositions is entered.
       After a hearing where factual disputes are resolved, the decision to grant or deny relief under
       section 2-1401 is a matter within the sound discretion of the trial court. See Uptown Federal
       Savings & Loan Ass’n of Chicago v. Kotsiopoulos, 105 Ill. App. 3d 444, 451 (1982) (noting
       the manifest weight of the evidence standard applies after the trial court has held an
       evidentiary hearing on a section 2-1401 petition); cf. Vincent, 226 Ill. 2d at 16 (“an abuse of
       discretion standard of review in cases where either a judgment on the pleadings or a
       dismissal has been entered does not comport with the usual rules of civil practice and
       procedure”). In the instant case, the court granted summary judgment to the respondent.
¶ 17        Summary judgment is proper where there are no genuine issues of material fact and the
       moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2008). The
       trial court may grant summary judgment after considering “the pleadings, depositions,
       admissions, exhibits, and affidavits on file in the case” and construing that evidence in favor
       of the nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Although summary
       judgment is to be encouraged as an expeditious aid to dispose of a lawsuit, it “is a drastic
       measure and should only be granted if the movant’s right to judgment is clear and free from
       doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
       Accordingly, we review grants of summary judgment de novo. Id.
¶ 18        On de novo review, all of the petitioner’s well-pled allegations are accepted as true. The
       diligence with which the petitioner filed her section 2-1401 petition is not at issue. The
       parties dispute whether she acted diligently during the divorce proceedings such that the
       claims she asserts are not “newly discovered.” The dispositive issue is whether the petition
       adequately set forth sufficient facts to entitle her to the relief she requested. See Vincent, 226
       Ill. 2d at 14, 16.

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¶ 19       At the heart of the petitioner’s petition seeking alternative relief is her argument that had
       the trial court known of the three assets discovered by the petitioner, the court would not
       have entered the judgment it did in the parties’ dissolution action. With full and complete
       disclosure by the respondent, she claims she would have received a share of the three assets.
¶ 20       Regarding her request that the judgment be vacated, the petitioner contends the trial court
       erred when it concluded that, as a matter of law, a showing of diligence was precluded based
       on the parties’ decision to forego formal discovery. She contends reasonable reliance in a
       divorce case equates with a showing of diligence. The petitioner argues she properly relied
       on the representation and warranty of full disclosure by the respondent in the MSA, which
       his counsel confirmed separately by affidavit, albeit one unsigned by the respondent.
¶ 21       Regarding her request that the judgment be enforced, she contends the parties provided
       for the possibility of nondisclosure of assets in the MSA by reference to section 503 of the
       Act, which permits a court to divide later-discovered property. 750 ILCS 5/503 (West 2008).
¶ 22       The petitioner argues the trial court should have enforced the provision of the MSA
       regarding later-discovered property under section 511 of the Act or vacated the judgment
       pursuant to section 2-1401 of the Code.
¶ 23       The respondent contends that a showing of diligence by the petitioner is foreclosed
       because she either knew of the assets or they were discoverable in the course of formal
       discovery, which she failed to pursue. In any event, the petitioner’s claims over the
       purportedly undisclosed assets have no merit. We address the latter issue first.

¶ 24                                     Merit of Claims
¶ 25       The parties submitted opposing motions for the trial court’s resolution with neither party
       requesting an evidentiary hearing. In effect, the parties took the position that each was
       entitled to judgment as a matter of law. See Liberty Mutual Fire Insurance Co. v. St. Paul
       Fire & Marine Insurance Co., 363 Ill. App. 3d 335, 339 (2005) (where cross-motions for
       summary disposition are filed, the parties acknowledge that only a question of law is at
       issue).

¶ 26                                   The Pinez Litigation
¶ 27       The respondent argues the Pinez litigation was not subject to a claim by the petitioner
       because the litigation concerned nonmarital property. In his reply to the petitioner’s response
       to his summary judgment motion below, the respondent argued his funding of the marriage
       from his trading account provided all the compensation the marital estate was entitled to.
       According to the respondent, the Pinez litigation concerned his seat at the Chicago Board of
       Trade, which the parties’ prenuptial agreement listed as nonmarital property. That
       characterization in the prenuptial agreement was never challenged below.
¶ 28       The Pinez litigation was initiated by the Securities and Exchange Commission in 1997
       based on fraudulent insider trading by Edward Pinez. The litigation was filed during the
       parties’ marriage, well in advance of the dissolution proceedings. In 2003, the respondent
       submitted a proof of claim for his trading losses flowing from Pinez’s fraudulent trading


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       activities. The petitioner’s claim is for a share of the respondent’s recovered losses.
¶ 29        The petitioner contends the Pinez litigation recovery falls within section 503 of the Act,
       which the parties incorporated in paragraph F of their MSA:
                 “In the event a court of competent jurisdiction subsequently determines either party
            owned or possessed property not disclosed during these proceedings, said property shall
            be distributed pursuant to the factors delineated in 750 ILCS 5/503.”
¶ 30        In the parties’ prenuptial agreement, the petitioner agreed that the respondent’s trading
       activities were conducted out of his nonmarital trading accounts at Sage and First Option.
       Because the settlement from the Pinez litigation was the result of the respondent’s trading
       activities, the settlement is likewise nonmarital property, unless commingling of marital and
       nonmarital property occurred under section 503(c)(2) of the Act.
            “When one estate of property makes a contribution to another estate of property, or when
            a spouse contributes personal effort to non-marital property, the contributing estate shall
            be reimbursed from the estate receiving the contribution notwithstanding any
            transmutation; provided, that no such reimbursement shall be made with respect to a
            contribution which is not retraceable by clear and convincing evidence, or was a gift, or,
            in the case of a contribution of personal effort of a spouse to non-marital property, unless
            the effort is significant and results in substantial appreciation of the non-marital property.
            Personal effort of a spouse shall be deemed a contribution by the marital estate. The court
            may provide for reimbursement out of the marital property to be divided or by imposing
            a lien against the non-marital property which received the contribution.” 750 ILCS
            5/503(c)(2) (West 2008).
¶ 31        In her petition to enforce or, alternatively, vacate the judgment, the petitioner focuses
       exclusively on the respondent’s admitted failure to formally disclose this asset to her. The
       petitioner makes no claim that the marital estate was entitled to reimbursement under the
       provisions of section 503(c)(2); nor did the petitioner allege that during the course of the
       fraudulent insider trading, the marital estate was deprived of adequate funds to support the
       marriage. Nor is it clear that the settlement from the Pinez litigation was not included in the
       net worth of the respondent disclosed to the petitioner during the dissolution proceedings.
¶ 32        The petitioner bears the burden of alleging specific facts evidencing her right to a share
       in this asset under the petition she filed. The petition is barren of any allegation that the Pinez
       litigation award was transformed into a marital asset by commingling or otherwise. The trial
       court properly concluded the petitioner failed to raise a meritorious claim over the proceeds
       of the Pinez litigation.

¶ 33                                        Bank Stocks
¶ 34        The petitioner claims nondisclosure of the respondent’s interest in Cambridge Bank and
       Peoples Bank of Elkhorn based on the assets not being designated as stock on the
       respondent’s unsigned affidavit. The petitioner claims she became aware that the listed bank
       assets were held in the form of stock upon her receipt of a request to sign over her interest
       in the stock several months after the entry of the judgment. The request was accompanied by
       a letter of transmittal that showed the respondent had crossed out petitioner’s name in a

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       failed attempt to surrender the jointly held stock.
¶ 35       The respondent pointed out in his motion that he disclosed the existence of the bank
       assets and their respective value in his unsigned affidavit. He argued it should make no
       difference that the bank assets were not listed as “stock” when there is no claim that the value
       of the assets was understated, and the trial court agreed. We agree as well.
¶ 36       The nature of the bank assets apparently made no difference to the petitioner prior to her
       acceptance of the MSA for if she had had a desire to determine the exact nature of the assets,
       as the trial court pointed out, “she had every opportunity to do so.” In any event, the petition
       failed to claim the nondisclosure of the nature of the assets made any difference. As the
       petitioner’s counsel admitted, “There is no issue as to the misrepresentation as to the value
       of any of the assets, at least in the petition that I am aware of.”
¶ 37       The trial court properly concluded the petitioner failed to raise a meritorious claim over
       the nature of the bank assets when the value of each was fully disclosed.

¶ 38                                   1999 Tax Return Refund
¶ 39       Finally, the petitioner claims a share of the refund from the amended joint income tax
       returns from 1999. She contends the language in subsection 3.16(f) of the MSA ensuring that
       she be informed of all amended joint returns filed after the judgment was entered, coupled
       with the clear nature of the income tax refunds as marital property, makes this claim
       undeniably meritorious.
¶ 40       Rules used to govern contract interpretation are applicable to give meaning to provisions
       of a marital settlement agreement. In re Marriage of Sweders, 296 Ill. App. 3d 919, 922
       (1998). The parties agree that a court may not modify or add a term where the MSA is silent
       on a matter, each citing Gallagher v. Lenart, 367 Ill. App. 3d 293 (2006), as support for this
       proposition.
¶ 41       The petitioner argues that because the MSA contains no provision that permits the
       respondent to exclusively claim refunds from any amended joint income tax returns filed
       after the MSA was signed, the marital nature of the refunds entitles her to a share. She
       acknowledges subsection 3.16(f) grants to the respondent the right to file amended returns
       after the entry of the judgment of dissolution at his discretion, but notes it contains no
       language barring her right to claim a share of any refund from such an amended joint return
       as presumptively marital property.
¶ 42       The respondent argues that because the MSA does not expressly provide for the
       petitioner to share in a refund from an amended tax return filed after the judgment is entered,
       it would violate the rule in Gallagher to find such a right regarding the 1999 amended tax
       returns filed in 2004. The respondent contrasts the omission of such a right in subsection
       3.16(f) with the language of subsection 3.16(g) that gives the petitioner the right to share in
       any refund up to $100,000 from the amended tax returns pending at the time of the MSA.
       The respondent argues that the express provisions of section 3.16 addressing “all previous
       joint tax returns” make clear that the petitioner has no right to share in any refunds from
       amended returns filed after the dissolution judgment is entered, such as the 1999 amended
       returns. (Emphasis added.) The trial court agreed, as do we.

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¶ 43       The parties agreed to be bound by the MSA, which expresses the rights each party was
       entitled to assert. Subsection 3.16(g) of the MSA expressly provides: “The husband has filed
       for a tax refund based upon certain losses sustained during the marriage[;] *** in the event
       he receives a refund as a result of said amended return he will in that event pay to the Wife
       an amount equal to ten per cent (10%) *** not to exceed $100,000 ***.” Certainly, it was
       foreseeable that other amended returns could be filed by the respondent as the MSA
       expressly gave him that right. If the petitioner sought to share in refunds for returns not filed
       as of the date of the MSA, it would have been a simple matter to have the MSA so provide.
       In the absence of such a provision, we agree with the trial court that the petitioner’s claim
       was barred when she was not granted such a right or benefit by the MSA.
¶ 44       This conclusion is further supported by subsection 3.16(h), which specifically requires
       the respondent to indemnify the petitioner against any income taxes due on joint returns filed
       after the signing of the MSA. This provision confirms that it was foreseeable that amended
       tax returns might be filed after the entry of the judgment. This subsection protects the
       petitioner against any tax liability arising from tax returns filed after the judgment was
       entered. We reject the petitioner’s contention that silence in the MSA can be interpreted as
       granting her a right to share in refunds due from such amended tax returns in the face of an
       express provision that protects her from any additional tax liability from those very same
       returns. We decline to add a benefit to the petitioner in the MSA that was not negotiated with
       the respondent.
¶ 45       The trial court properly concluded the petitioner had no meritorious claim over the
       refunds from the federal and state amended tax returns for 1999.

¶ 46                                        Due Diligence
¶ 47       While we have rejected the petitioner’s contentions that she had a meritorious claim over
       each of the purportedly undisclosed assets, which is fatal to her petition, we elect to address
       the petitioner’s claim that she acted with legal due diligence based on her reliance on the
       representation and warranty in the MSA and the respondent’s unsigned affidavit. We do so
       to make clear that the petitioner’s contention of legal diligence based on reliance, in lieu of
       formal discovery, is without support in Illinois law. When a divorce party elects to forego
       formal discovery in favor of accepting a representation and warranty of full and complete
       disclosure, the party does so at his or her own peril. We emphasize that this case does not
       present a question of fraudulent concealment of assets, as the trial court found below.
¶ 48       The petitioner acknowledges in her main brief that, generally, a party’s failure to engage
       in discovery prior to entering into an agreement defeats that party’s claim of reliance on those
       representations, citing both Himmel and Broday. The petitioner seeks to create an exception
       to this rule where there is a written agreement in which each party represents and warrants
       a full and complete disclosure of property, as the petitioner and respondent did here in the
       MSA. As she contends, “formal discovery was not necessary *** [because she] had no
       reason to doubt the veracity of the information provided.”
¶ 49       Due diligence is judged by the reasonableness of a petitioner’s conduct under the
       circumstances. Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 99-101 (2006).

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       Considering the circumstances of this case, we find, just as the trial court did, the petitioner
       failed to exercise due diligence when she elected to accept the respondent’s “representation
       and warranty” over the opportunity to engage in formal discovery. Her expressions of
       reliance on the respondent’s representation and warranty of full disclosure during the prove-
       up are of no aid to the petitioner. When asked by her counsel about her acceptance of the
       respondent’s assets disclosure, she gave a qualified response, “if it is all true.” The trial court
       interrupted to make clear any uncertainties should be resolved prior to the entry of judgment.
       “She understood that she could have [taken] discovery in this matter, correct?” Counsel
       replied, “Right.”
¶ 50       Given the record before us, we agree with the trial court’s finding that the petitioner did
       not act with due diligence regarding each of her claims of the purportedly undisclosed assets.
       Without a showing of due diligence, the petitioner failed to establish a necessary element to
       reopen the judgment. We find no error in the trial court’s conclusion that to allow the
       petitioner to proceed with her section 2-1401 petition would give her a second opportunity
       to do that which should have been done in the initial proceedings. See Himmel, 285 Ill. App.
       3d at 148.
¶ 51       A representation and warranty of full disclosure in a marital settlement agreement, even
       when the full disclosure is confirmed by affidavit (albeit unsigned here) cannot be used as
       an escape hatch to avoid the consequences of failing to act diligently in the first instance by
       engaging in sufficient discovery, a proposition that has been long established in Illinois law.
       “ ‘A party in possession of his mental faculties is not justified in relying on representations
       made when he has ample opportunity to ascertain the truth of the representations before he
       acts. When he is afforded the opportunity of knowing the truth of the representations he is
       chargeable with knowledge. If one does not avail himself of the means of knowledge open
       to him he cannot be heard to say he was deceived by misrepresentations.’ ” Lagen v. Lagen,
       14 Ill. App. 3d 74, 81 (1973) (quoting Dickinson v. Dickinson 305 Ill. 521, 527-28 (1922)).
¶ 52       The trial court properly concluded the petitioner did not act with due diligence in
       presenting her claims to challenge the judgment of dissolution of marriage, which
       incorporated the marital settlement agreement signed by the parties. The section 2-1401
       petition was deficient as a matter of law, notwithstanding the petitioner’s contention that her
       reasonable reliance on the representation and warranty by the respondent of full and complete
       disclosure in the MSA constituted legal diligence.

¶ 53       Affirmed.




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