                                  2014 IL App (1st) 121424

                                         No. 1-12-1424

                              Opinion Filed November 21, 2014


                                                                         FIFTH DIVISION



                                IN THE APPELLATE COURT
                                         OF ILLINOIS
                                 FIRST JUDICIAL DISTRICT



     In re MARRIAGE OF                                          )   Appeal from the
                                                                )   Circuit Court
     PAMELA HARNACK,                                            )   of Cook County
                                                                )
                  Petitioner-Appellee,                          )
                                                                )
     and                                                        )
                                                                )   Nos. 08 D 02844
     STEVE FANADY,                                              )        11 CH 7166
                                                                )        11 CH 35656
                  Respondent-Appellant                          )
                                                                )
     (Jerome Israelov, CBEO Holdings, Inc., and                 )
     Computershare Shareowner Services LLC, Plaintiffs; Steve   )
     Fanady, Alpha Industries LLC, Pamela Harnack, Jerome       )   Honorable
     Israelov, Michelle Marme, Fanmare and Grund & Leavitt,     )   David E. Haracz,
     P.C., Defendants).                                         )   Judge Presiding.


            PRESIDING JUSTICE PALMER delivered the judgment of the court, with
     opinion.
            Justices McBride and Gordon concurred in the judgment and opinion.

                                           OPINION


¶1         Petitioner Pamela Harnack filed a petition for dissolution of her marriage to

     respondent Steve Fanady. Fanady stopped participating in the proceedings and was
     1-12-1424


     found to be in default by the court. While the dissolution action was pending, Jerome

     Israelov filed an action in chancery court against Fanady and Alpha Industries LLC

     (Alpha), a firm owned by Fanady. Israelov claimed that he and Fanady, through Alpha,

     had entered into a partnership agreement to purchase a membership (seat) on the

     Chicago Board of Options Exchange (CBOE) through a partnership named ISRFAN.

     The seat had subsequently been exchanged for 80,000 shares of CBOE Holdings, Inc.,

     stock, Fanady/Alpha had withdrawn its 50% interest in the partnership (40,000 shares)

     and Israelov sought distribution by Alpha of his 50% interest in the seat (40,000 shares).

     The court consolidated Israelov's action with the dissolution action.

¶2          The court entered a default judgment dissolving the marriage and apportioning

     the parties' assets. Finding all shares of CBOE Holdings, Inc., stock held by Fanady,

     Alpha or any of Fanady's other enterprises were marital property, the court awarded

     Harnack 140,000 shares of the 280,000 total shares owned by Fanady as her marital

     portion. Recognizing that Israelov's claim to 40,000 shares remained pending, the court

     ordered CBOE Holdings, Inc. (CBOE Holdings), and Computershare Shareowner

     Services LLC (Computershare), the entities holding the shares, to transfer 120,000

     shares to Harnack and to transfer 40,000 shares into escrow pending the outcome of

     the Israelov action. CBOE Holdings and Computershare filed an interpleader action

     informing the court that they could not comply with the judgment for dissolution of

     marriage because Fanady had already withdrawn 120,000 shares and only 120,000

     shares remained in the accounts. They requested a judicial determination of who owned

     the remaining 120,000 shares. 1


            1
                The interpleader action was filed in the names of CBOE Holdings, Inc., and
                                                  2
     1-12-1424


¶3         Eight months after entry of the judgment of dissolution, Fanady moved to set

     aside the judgment pursuant to sections 2-1301(e) and 2-1401(a) of the Illinois Code of

     Civil Procedure Code (735 ILCS 5/2-1301(e), 2-1401(a) (West 2012)). The court denied

     both the section 2-1301(e) motion and section 2-1401(a) petition. Fanady appeals,

     arguing (1) the court erred in finding section 2-1301(e) did not apply; and (2) the court

     erred in denying his section 2-1401(a) petition. In a motion taken with the case, he also

     argues that portions of Harnack's brief on appeal should be stricken. We deny Fanady's

     motion to strike Harnack's brief and affirm the trial court's order denying the section 2-

     1301 motion and section 2-1401 petition to set aside the judgment for dissolution of

     marriage. However, we remand with directions.

¶4                                       BACKGROUND

¶5         Harnack and Fanady married in October 2003. The parties had no children

     together. In March 2008, Harnack filed for dissolution of marriage. Fanady initially

     participated in the dissolution proceedings and was represented by various counsel. At

     some point in 2010, Grund & Leavitt, P.C. (Grund & Leavitt), one of the law firms that

     had represented Fanady in the dissolution action, filed a petition against him for unpaid

     legal fees. On September 17, 2010, the court granted Fanady's latest counsel leave to

     withdraw and allowed Fanady 21 days in which to retain new counsel or file a pro se

     appearance. Fanady did neither. On November 1, 2010, on Harnack's motion, the court

     found Fanady in default "based on his failure to file an appearance" within 21 days and


     "Mellon Investor Services LLC d/b/a BNY Mellon Shareowner Services." When Mellon
     Investor Services LLC, d/b/a BNY Mellon Shareowner Services, subsequently changed
     its name to Computershare Shareowner Services LLC, the court granted it permission
     to amend the caption in the interpleader action to reflect the new name. We will refer to
     this entity as Computershare.

                                                 3
     1-12-1424


     set the case for a hearing. In December 2010, Grund & Leavitt obtained a default

     judgment against Fanady for its attorney fees.

¶6         In February 2011, Harnack moved for a temporary restraining order (TRO) and

     preliminary injunction seeking to bar Fanady or any of his agents or enterprises from

     transferring any assets, especially any CBOE Holdings shares. She asserted Fanady

     had held 280,000 shares of CBOE Holdings stock, he had transferred 80,000 of the

     shares to a broker for sale as of January 4, 2011, and there remained only 80,000

     unrestricted shares that could be sold immediately and 120,000 shares restricted until

     June 2011, or a total of 200,000 shares. She sought to prevent him from transferring

     any more shares.

¶7         As shown by the record, Harnack's information regarding the number of shares

     held by Fanady was outdated. Fanady acquired four CBOE seats during the marriage.

     In November 2009, while the dissolution proceeding was pending and without Harnack's

     knowledge, Fanady sold one seat for $2.775 million and transferred the funds to a bank

     account in Switzerland. On June 14, 2010, CBOE Holdings went public and exchanged

     each CBOE seat for 80,000 shares of CBOE Holdings stock, all restricted. On that date,

     Fanady held only three of his original four seats: two seats in an account under the

     name of Alpha and one seat in an account under the name of Fanmare, a partnership

     he had entered into with Michelle Marme. On June 14, 2010, after the three seats were

     exchanged for shares, Fanady held a total of 240,000 shares as follows:

           Alpha:                 80,000 A-1 restricted shares

           Alpha:                 80,000 A-2 restricted shares

           Fanmare:               40,000 A-1 restricted shares


                                                4
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            Fanmare:                  40,000 A-2 restricted shares

     If he had not already sold the fourth seat, he would have received a total of 320,000

     shares.

¶8          The A-1 shares became unrestricted and freely transferable on December 15,

     2010. As Harnack asserted in her motion for a TRO and injunctive relief, Fanady

     transferred 80,000 shares, the unrestricted A-1 shares, out of the Alpha account on

     January 4, 2011. Harnack was unaware that, on February 8, 2011, the day before she

     filed her request for TRO, Fanady had also transferred the 40,000 unrestricted A-1

     shares from the Fanmare account. As a result, by the time Harnack filed her motion, all

     that remained of the original 240,000 shares was 80,000 shares of restricted A-2 stock

     in the Alpha account and 40,000 shares of restricted A-2 stock in the Fanmare account,

     for a total of 120,000 shares.

¶9          In late February 2011, Israelov filed an action in chancery court against Fanady

     and Alpha alleging breach of contract, breach of fiduciary duty and conversion under a

     partnership agreement he had with Fanady through Alpha, an entity Fanady purported

     to manage but the existence of which Israelov was later unable to confirm. Israelov

     alleged that on January 26, 2010, he and Fanady, "purportedly through Alpha," entered

     into a partnership agreement establishing the ISRFAN partnership in order to jointly

     purchase a seat on the CBOE. Israelov paid $1,312,5000 to CBOE Holdings on January

     27, 2010, for his 50% interest in the partnership's seat. Fanady prepared the application

     to purchase the seat. The application lists ISRFAN as the "organization" purchasing the

     seat and Fanady, Pantheon, LLC, one of Fanady's enterprises, and a trust as owners of

     the seat. Fanady did not list Israelov as an owner. On June 14, 2010, when CBOE


                                                   5
       1-12-1424


       Holdings converted to a public company, it issued 80,000 shares of its common stock in

       exchange for the seat. The shares were subject to a "lock up," preventing the owners

       from trading them for a six-month period. Under the terms of the ISRFAN agreement,

       within five days of the shares being released, Alpha/Fanady was to deliver the released

       shares to the partnership in order that each partner could receive his 50% portion, or

       20,000 shares. On December 15, 2010, 40,000 of the 80,000 shares were released

       from lock-up. Israelov claimed that Fanady/Alpha took possession of the 40,000

       released shares but, despite numerous requests by him, refused to distribute to Israelov

       the 20,000 shares he was due from the initial distribution. The remaining ISRFAN

       40,000 shares held in the Alpha account were scheduled to be released for transfer in

       June 2011. Concerned that Fanady/Alpha would also take these shares, Israelov

       sought enforcement of his partnership agreement with Alpha/Fanady and to enjoin

       Fanady and/or Alpha from appropriating the remaining shares scheduled to be released

       on June 13, 2011.

¶ 10          In May 2011, on Harnack's motion, the court consolidated Israelov's chancery

       action with the dissolution case pending in the domestic relations division. It granted the

       motions for TRO and subsequently, on motions by Harnack, Israelov and Grund &

       Leavitt, issued TROs, preliminary injunctions and ultimately permanent injunctions

       barring Fanady, his agents, enterprises or anyone acting on his behalf from transferring

       any assets, including any shares or related dividends held in the name of Fanady or any

       of his enterprises.

¶ 11          In June 2011, Israelov and ISRFAN entered into a settlement agreement with

       Alpha pursuant to which Alpha agreed that it had received its pro rata 40,000 shares


                                                   6
       1-12-1424


       (half of the total 80,000 shares exchanged for the ISRFAN seat). Alpha agreed that

       40,000 shares remained due and owing to Israelov and that it would place 40,000

       shares in an account in the name of ISRFAN when the A-2 shares became unrestricted

       on June 13, 2011. Once the transfer was made, Israelov was to dismiss his suit. Fanady

       allegedly having resigned as manager of Alpha in March 2011, Alpha's new manager

       executed the agreement on behalf of Alpha.

¶ 12         Israelov moved for limited dissolution and/or modification of the injunctive orders

       in order to allow "the transfer of the certain undisputed non-marital assets" to him from

       Alpha pursuant to the settlement agreement, specifically the 40,000 shares he was due

       as his 50% interest in the former CBOE seat 300124. Grund & Leavitt moved to deny

       the motion. That motion remains undecided.

¶ 13         The court held a prove-up hearing on the dissolution action on August 3, 2011,

       during which it heard testimony from Harnack. The record shows Fanady was served

       with notice of the hearing. 2 He did not appear at the hearing, although counsel for

       Harnack informed the court that he had seen Fanady in the courtroom a half hour

       before the hearing. The court entered the judgment for dissolution of marriage on the

       same day.

¶ 14         In the judgment for dissolution of marriage, the court found that Fanady was

       worth approximately $7.3 million as of March 2010 while Harnack had minimal income,

       was unable to support herself and had recently been diagnosed with an autoimmune

       disorder. The court ordered Fanady to pay Harnack $6,175 in maintenance per month

       for 48 months following entry of the judgment. The court noted that it had already

             2
                In fact, the record shows that Fanady was served with notice of all of Harnack's
       and Israelov's assorted motions and petitions and any orders thereon.
                                                  7
       1-12-1424


       ordered payment of maintenance in September 2010 and that Fanady had failed to

       comply with the order and was $67,925 in arrears for 11 months of maintenance

       payments by July 2011. The court ordered that the total amount due and owing for 59

       months of past and future maintenance was $364,325,325. It ordered that the sum

       should be paid to Harnack as a "lump sum" in lieu of periodic payments, "said amount to

       be paid from the ultimate amount of distribution as herein below indicated."

¶ 15         The court found that, during the marriage, the parties had acquired assorted

       marital property, including "the equivalent of 320,000 *** shares of [CBOE Holdings]

       stock (Steve Fanady being 100% owner of at least 280,000)." 3 The court found that the

       CBOE Holdings stock owned in the names of Fanady, Alpha, Fanmare, ISRFAN and

       Pantheon, LLC, another Fanady enterprise, was property acquired during the marriage

       and awarded Harnack 140,000 shares of the stock. It initially ordered CBOE Holdings

       and Computershare to transfer 140,000 shares of CBOE Holdings stock to Harnack

       within 10 days of the judgment. However, the typed "140,000" is struck through and

       "120,000" is handwritten above the original number, thus resulting in an order requiring

       CBOE Holdings and Computershare to transfer 120,000 shares to Harnack within 10

       days. Also handwritten at the end of the same provision is the following: "Forty thousand

             3
                The unrebutted evidence before the court was that Fanady had acquired four
       CBOE seats during the marriage and, when CBOE Holdings went public in June 2010,
       each of the seats would have been exchanged for 80,000 shares. Therefore, the parties
       had acquired "the equivalent of" 320,000 shares of CBOE Holdings stock (4 @ 80,000
       shares) during the marriage.
              However, only three of the four seats were ultimately exchanged for shares
       because in 2009, without Harnack's knowledge and while the dissolution action was
       pending, Fanady sold one seat for $2.775 million and transferred the money to a Swiss
       bank account. Thus, only three seats were exchanged, for a total of 240,000 shares. By
       the time the judgment for dissolution of marriage was entered, Fanady had already
       withdrawn 120,000 of those shares from the Alpha and Fanmare accounts, leaving only
       120,000 shares in the accounts.
                                                   8
       1-12-1424


       shares currently registered to Alpha LLC and so held shall be placed in an escrow

       account pending resolution of Israelov's claim." The court awarded Fanady "the balance

       of the shares of CBOE stocks (not awarded to [Harnack])."

¶ 16          In addition to distributing the shares, awarding maintenance and allocating the

       parties' numerous other assets, the court awarded Harnack the marital home, which

       was encumbered by a $690,460 lien imposed by the Internal Revenue Service (IRS) for

       Fanady's unpaid personal income taxes. The court noted that the house was held in a

       trust, the ATG Trust, for Alpha's benefit. It ordered Fanady to execute a deed and

       transfer all right and title to the property from the trust to Harnack within 14 days of the

       judgment. If Fanady failed to do so, the court or another court acting in its stead would

       "execute a Judge's deed transferring all said rights, title and interest therein" to

       Harnack. 4 In a separate provision, the court "requested" the IRS to release any liens on

       the property.

¶ 17          The court also awarded Harnack $220,000 for attorney fees to be paid to her

       past and then-current counsel, including an award of $50,000 to her then-current

       counsel for "prospective fees and the enforcement of the judgment." 5 The court stated

       that "said fees are awarded to *** Harnack for obstructive actions taken by *** Fanady,

       i.e., failing to comply with this court's orders, being previously held in contempt, failure

       to participate in the process and generating false pleadings as indicated in other


              4
                Fanady had purchased the house in October 2006, during the marriage, and
       placed the title in a trust managed by ATG Company of which he was the sole beneficial
       owner. Execution of the judge's deed was subsequently stayed.
              5
                The order states that it awards $200,000 to Harnack for attorney fees but
       adding the individual amounts together, the total is actually $220,000.

                                                    9
       1-12-1424

       documents currently pending in this matter." (Emphasis in original.) It ordered that the

       attorney fees "should be reimbursed to [Harnack] from the proceeds of the sale of the

       140,000 120,000 shares *** awarded to her pursuant to this Judgment." At the end of

       the judgment for dissolution of marriage, the court added the handwritten notation that

       "any prior injunction entered in the matter shall survive this judgment and remain in full

       force and effect except for the purpose of compliance herewith."

¶ 18         After the judgment for dissolution of marriage was entered, Harnack learned that

       Fanady had sold one of the four CBOE seats acquired during the marriage for $2.775

       million in November 2009, 20 months after Harnack filed for dissolution and 6 months

       before the CBOE went public, and had transferred the funds to a bank account in

       Switzerland.

¶ 19         On October 13, 2011, CBOE Holdings and Computershare filed an interpleader

       action against Harnack, Fanady, Israelov, Marme, Alpha, Fanmare and Grund & Leavitt

       asserting that, although the court had ordered them to transfer a total of 160,000 shares

       within 10 days of the judgment (40,000 transferred to escrow and 120,000 transferred to

       Harnack), they would be unable to comply with the judgment for dissolution of marriage

       because the Alpha and Fanmare accounts only held a total of 120,000 shares. They

       requested a determination regarding which of the seven defendants were the lawful

       owners of the 80,000 shares remaining in the Alpha account and 40,000 shares

       remaining in the Fanmare accounts and to whom it should pay the related past and

       future dividends. Based on exhibits attached to the interpleader, the following chart

       illustrates how, although Fanady held three seats worth 240,000 shares in the Alpha

       and Fanmare accounts during the marriage, there came to be only 120,000 shares in


                                                  10
       1-12-1424


       the Alpha and Fanmare accounts by the time the judgment for dissolution of marriage

       was entered:


        Account Holdings               6/14/10                12/15/10        Account Holdings
             Initial               80,000 Shares         A-1 Shares become        Current
                                exchanged per seat           unrestricted      (not including
                                 (Shares restricted                              dividends)
                                    for 6 months)

       Alpha:         2 seats   80,000 A-1 shares               1/4/11       80,000 A-2 shares
                                                         Fanady orders the
       (one held solely by      80,000 A-2 shares        80,000 A-1 shares   (Israelov claims
       Fanady and the                                    transferred out;    40,000 shares)
       other either held                                 whereabouts
       solely by Fanady or                               unknown
       held by ISRFAN, a
       50/50 partnership
       between Fanady &
       Israelov)

       Fanmare:        1 seat   40,000 A-1 shares               2/8/11       40,000 A-2 shares
                                                         Fanady orders the
       (Either held solely      40,000 A-2 shares        40,000 A-1 shares   (Fanmare claims
       by Fanady or by                                   transferred out;    40,000 shares)
       Fanmare, a 50/50                                  whereabouts
       partnership                                       unknown
       between Fanady
       and Marme)


       The court consolidated the interpleader action filed by CBOE Holdings and

       Computershare with the already consolidated dissolution and Israelov actions in

       January 2012.

¶ 20         On December 19, 2011, the court granted counsel for Fanady leave to appear.

       On January 5, 2012, Fanady moved for change of judge and venue under section 2-

       1001.5 of the Code (735 ILCS 5/2-1001.5 (West 2010)), asserting assorted claims of

       impropriety against the judge presiding over the consolidated dissolution and Israelov


                                                    11
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       actions as well as against Harnack's counsel. In the face of Harnack's motion to strike,

       Fanady's counsel filed his appearance on January 13, 2012. The court denied the

       motion to transfer venue.

¶ 21          On April 3, 2012, nine months after the judgment for dissolution of marriage had

       been granted, Fanady filed a four-page "motion to set aside" the judgment for

       dissolution of marriage pursuant to section 2-1301 or "in the alternative" under section

       2-1401. He set forth a disparate litany of unsupported assertions and legal conclusions,

       including the assertion that he was under duress after his counsel withdrew on

       September 17, 2010, and that he stopped participating in the proceedings because,

       during a September 2010 pretrial conference before a different judge, that judge told

       him there would not be a trial on the merits and he "needs to just write a seven figure

       check" to Harnack. He claimed that the judgment was unconscionable, not final and

       failed to address the elements of section 504 of the Illinois Marriage and Dissolution of

       Marriage Act (750 ILCS 5/504 (West 2012)). He further asserted he was denied due

       process, the court went beyond its jurisdiction by ordering the IRS to release liens on

       the "marital" home and he had acquired the home in October 2006 "in exchange for" his

       nonmarital property or property he acquired by gift, legacy or descent. Fanady attached

       an affidavit in support of his motion but the affidavit consisted of only three sentences,

       stating only that he was the respondent, over 21 years of age and the facts stated in the

       petition were incorporated into the affidavit by reference.

¶ 22          On April 12, 2012, the court denied a motion to transfer venue filed by Alpha. On

       May 11, 2012, the court entered an order denying Fanady's motion to vacate the

       judgment for dissolution of marriage. As stated on the record, the court found section 2-


                                                   12
       1-12-1424


       1301 did not apply and the section 2-1401 petition failed for failure to show due

       diligence.

¶ 23          As noted above, from September 21, 2010, when the court had granted Fanady's

       counsel leave to withdraw and Fanady 21 days in which to retain new counsel or file a

       pro se appearance, until January 13, 2012, when Fanady's new counsel filed an

       appearance, Fanady did not participate in the dissolution proceedings. He had not,

       however, been idle during those 15 months.

¶ 24          As shown by Harnack's February 2011 petition to hold Fanady in indirect civil

       contempt "for his actions relative to the fabrication of a judgment for dissolution of

       marriage," Fanady had obtained a religious divorce from Harnack in the Greek orthodox

       church by presenting his priest with a circuit court of cook county "judgment for

       dissolution of marriage" document dated July 21, 2010. Harnack asserted she had no

       knowledge of the document. The "judgment" purported to dissolve Fanady's marriage to

       Harnack and contained the signature stamp of Cook County Judge Nancy Katz and the

       alleged signatures of Fanady's former counsel David Ainley and then-counsel John

       D'Arco. Evidence attached to Harnack's petition shows that no such judgment for

       dissolution of marriage had been filed with the clerk of the circuit court of cook county,

       both Ainley and D'Arco denied participation in the creation of the judgment and knew

       nothing about it, the church issued the ecclesiastical divorce to Fanady on August 2,

       2010, and Fanady was to marry his girlfriend on November 28, 2010. 6 The court

       granted the petition and ordered Fanady to turn over his American and Greek

       passports. He did not comply with the order.

              6
               After the instant appeal was filed, Fanady was arrested and charged with three
       counts of felony forgery. The case was subsequently dismissed.
                                                  13
       1-12-1424

¶ 25          Meanwhile, Fanady had also obtained an ex parte "final judgment of dissolution

       of marriage with no property or dependent or minor children (uncontested)" in Clay

       County, Florida, on March 24, 2011. This "uncontested" Florida judgment shows that

       Fanady obtained the dissolution by falsely claiming he was a resident of Florida,

       Harnack was "missing in action" with "address unknown," Harnack had a default

       judgment entered against her and "[t]here is no marital property or marital debts to

       divide, as the parties have previously divided all of their personal property." In

       September 2011, Fanady sent a letter with a copy of the Florida dissolution judgment to

       the Cook County judge presiding over the Illinois dissolution action, asserting the

       Florida judgment dissolving his marriage to Harnack was binding in Illinois and the Cook

       County court no longer had jurisdiction over the divorce proceedings. Ultimately, in

       January 2012, by consent decree on Harnack's motions to dismiss, the Florida court

       vacated the dissolution judgment.

¶ 26          A few days after entry of the dissolution judgment in this matter, in violation of the

       court's order directing him to transfer title to the house from the trust to Harnack,

       Fanady transferred the marital home from the ATG trust into a trust at West Suburban

       Bank, naming his father and a friend as beneficial trustees. He subsequently, again in

       violation of the judgment for dissolution of marriage and assorted injunctions, listed the

       property for sale.

¶ 27          On October 11, 2011, Alpha moved to remove the consolidated case to the

       United States District Court for the Northern District of Illinois, Eastern Division. The

       district court dismissed the case for lack of jurisdiction, noting that Alpha's remedies

       were in state court. Alpha appealed to the United States Court of Appeals for the


                                                    14
       1-12-1424


       Seventh Circuit, which upheld the district court's decision in December 2011. The case

       was remanded to the Cook County circuit court. Meanwhile, in November 2011, Alpha

       had filed a second action in federal district court challenging the judgment for dissolution

       of marriage and naming Harnack, her attorney and the Cook County judge who issued

       the judgment for dissolution of marriage as defendants. The district court again

       dismissed the action for lack of jurisdiction. The court of appeals affirmed the dismissal

       in March 2012, explaining that Alpha was a "state-court loser" when it was ordered to

       relinquish its ownership of the CBOE shares and a federal district court has no

       jurisdiction to overturn the state court judgment. Finding "the appeal was frivolous," the

       court of appeals granted Harnack's motion for sanctions, awarding her attorney $15,000

       in attorney fees and costs.

¶ 28          In late March 2010, Alpha filed in the Cook County circuit court's chancery

       division the same action challenging the judgment for dissolution of marriage as it had

       filed in Federal court, naming Harnack, her attorney and the judge who issued the

       judgment for dissolution of marriage as defendants. The chancery division court granted

       the defendants' motions to dismiss in December 2012. Finally, in January 2012,

       Fanady's counsel filed an appearance in the dissolution action and, on April 3, 2012,

       eight months after entry of the judgment for dissolution of marriage, Fanady filed his

       motion to set aside the judgment for dissolution of marriage, which the court denied on

       May 11, 2012.

¶ 29          Fanady filed a notice of appeal May 15, 2012, and an amended notice of appeal

       on June 2, 2012, requesting that we vacate the May 11, 2012, order denying his section

       2-1301(e) motion and section 2-1401(a) petition to set aside the judgment for


                                                   15
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       dissolution of marriage. 7

¶ 30                                             ANALYSIS

¶ 31          Fanady raises two arguments on appeal: (1) the court erred in denying his

       section 2-1301(e) motion to vacate on the basis that section 2-1301(e) did not apply and

       (2) the court erred in denying his section 2-1401(a) petition to vacate based on his lack

       of diligence. As set forth below, we affirm the trial court on both determinations but

       remand with instructions.

¶ 32          Fanady also argues, in a motion taken with the case, that portions of Harnack's

       brief on appeal should be stricken for failure to comply with the procedural requirements

       of Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013)). Rule 341 sets forth the format

       and contents of appellate briefs and its requirements are mandatory. Voris v. Voris,

       2011 IL App (1st) 103814, ¶ 8. We agree that Harnack's brief does not comply with

       some of the requirements of Rule 341 and is, therefore, subject to dismissal. Id.

       However, it is adequate for our review of the issues presented since we have the benefit

       of the record before us as well as Fanady's, Israelov's and CBOE Holdings and

       Computershare's proper citations to the record on appeal. We, therefore, deny the

       motion to strike.

¶ 33                                1. Section 2-1301(e) Motion to Vacate

¶ 34          We affirm the trial court's finding that section 2-1301(e) did not apply. Section 2-

       1301(e) provides: "The court may in its discretion, before final order or judgment, set

       aside any default, and may on motion filed within 30 days after entry thereof set aside

              7
                 In his notice of appeal, Fanady also challenges the court's April 12, 2012, order
       denying the motion to change venue under section 2-1101.5. However, he does not
       raise this argument in his briefs on appeal and has, therefore, abandoned it. Ill. S. Ct. R.
       341(h)(7) (eff. Feb. 6, 2013) ("Points not argued are waived ***.").
                                                     16
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       any final order or judgment upon any terms and conditions that shall be reasonable."

       735 ILCS 5/2-1301(e) (West 2012). "Section 2-1301(e) is available to seek relief from

       any nonfinal order of default or from a final default judgment within 30 days of its entry."

       (Emphases in original.) Stotlar Drug Co. v. Marlow, 239 Ill. App. 3d 726, 728 (1993).

¶ 35          The court's November 1, 2010, order finding Fanady in default is not a final order

       because it does not dispose of the case and determine the rights of the parties. Jackson

       v. Hooker, 397 Ill. App. 3d 614, 620 (2010). Instead, it "is simply an interlocutory order

       that precludes the defaulting party from making any additional defenses to liability but in

       itself determines no rights or remedies." (Internal quotation marks omitted.) Id. The

       judgment for dissolution of marriage, however, is a final default judgment.

¶ 36          "A judgment *** is not final unless it determines the litigation on the merits so

       that, if affirmed, the only thing remaining is to proceed with the execution of the

       judgment." In re Marriage of Susman, 2012 IL App (1st) 112068, ¶ 12. "When an order

       resolves less than all the claims brought by a party, the order is not final and

       appealable." Id. The litigation at issue here concerned Harnack's petition for dissolution

       of marriage. "A petition for dissolution advances a single claim; that is, a request for an

       order dissolving the parties' marriage. The numerous other issues involved, such as

       custody, property disposition, and support are merely questions which are ancillary to

       the cause of action." (Emphasis in original.) In re Marriage of Leopando, 96 Ill. 2d 114,

       119 (1983). "[U]ntil all of the ancillary issues are resolved, the petition for dissolution is

       not fully adjudicated." Id. In other words, although there are some narrow exceptions,

       "generally only a judgment that does not reserve any issues for later determination is

       final and appealable." In re Marriage of Susman, 2012 IL App (1st) 112068, ¶ 13.


                                                    17
       1-12-1424


¶ 37            The court entered the judgment following a prove-up hearing on August 3, 2011,

       on Harnack's petition for dissolution of marriage. At issue in the dissolution action were,

       inter alia, the allocation of the parties' substantial assets, maintenance and attorney

       fees. The court resolved all of these issues by allocating all of the parties' marital and

       nonmarital assets between the parties and awarding Harnack maintenance and attorney

       fees. It did not reserve any of the issues involved in the petition for dissolution for later

       determination. The judgment for dissolution of marriage terminated the litigation

       between Harnack and Fanady, the parties to the dissolution action, and decided their

       "dispute" entirely and is, therefore, a final judgment. Jackson, 397 Ill. App. 3d at 620.

¶ 38            Fanady argues that the judgment for dissolution of marriage was not final

       because it did not resolve all matters between the parties related to the issue of the

       distribution of property. Pointing out that ownership of the CBOE Holdings stock was at

       the heart of the divorce dispute and that the court had consolidated Israelov's action

       with the dissolution action, he asserts that, "by specifically reserving a determination on

       Israelov's claim to 40,000 shares of the CBOE Holdings stock, the trial court expressly

       left complete resolution of the issues related to the distribution of stock for a future

       time." Fanady argues that, because the judgment awarded 140,000 shares to Harnack

       but only provided for distribution of 120,000 shares to her, ownership of the remaining

       20,000 shares "was tied up in Israelov's claim, and, hence, could not be resolved until

       the Israelov case was resolved" and "[i]t strains credibility to suggest that a ruling that

       leaves the issue of ownership of over $650,000 [worth of shares] in an unresolved state

       is 'final.' "

¶ 39            The court did not reserve determining the allocation of the 40,000 shares. It


                                                    18
       1-12-1424


       completely allocated all of the parties' assets, including all of the shares, between the

       parties, awarding Harnack 140,000 shares and Fanady the remainder. Then, in

       recognition that 40,000 of the total shares might be nonmarital, it set those shares aside

       pending the outcome of Israelov's action. Implicit in the court's judgment is its

       recognition that (1) if Israelov's action succeeds, then the parties will not receive any of

       the 40,000 shares because the shares, although presumptively marital, were shown to

       be nonmarital and (2) if Israelov's action fails, then the parties will receive their marital

       portion of the 40,000 shares as set forth in the judgment, i.e., 20,000 shares to Harnack,

       and the remainder (20,000 shares) to Fanady. Either way, no matter the outcome of the

       Israelov action, the court fully decided the disposition of the 40,000 shares between the

       two parties to the petition for dissolution. 8 All that remained was the execution of the

       judgment.

¶ 40          The fact that Israelov's action remained unresolved does not affect the finality of

       the dissolution judgment. Israelov is not a party to the dissolution of marriage. The

              8
                The report of proceedings of the prove-up hearing supports this interpretation.
       The report of proceedings shows that the court heard argument from counsel for
       Harnack, Israelov, Katz & Stefani, LLC, a law firm seeking fees from Harnack in the
       dissolution action, and Grund & Leavitt regarding the proposed distribution of 140,000
       shares to Harnack. Each asserted claims to the shares and/or against Fanady and/or
       Alpha. By agreement of all present, the court ordered that the judgment for dissolution
       of marriage be amended to reflect that, as suggested by counsel for Grund & Leavitt,
       Harnack would be awarded 140,000 shares as originally proposed but would receive
       only 120,000 of the shares until the court resolved the Israelov issue "because that is
       half of what [she] is seeking. If [the court] finds that Israelov isn't entitled to [40,000
       shares], she gets 20,000 of that, Mr. Fanady gets 20,000." The court then heard
       testimony from Harnack, in which she stated she agreed that "the amount of shares
       pursuant to the judgment" would be reduced to 120,000 shares and that the balance
       would remain in escrow for distribution to Israelov as would be determined at a later
       date. Accordingly, the report of proceedings of the prove-up hearing shows that, given
       that the 40,000 shares claimed by Israelov might be non-marital, those shares should,
       as Harnack's counsel succinctly stated, come "off the top" of all marital shares rather
       than solely from Harnack's shares.
                                                    19
       1-12-1424


       court's consolidation of his contract action against Fanady and Alpha with Harnack's

       dissolution action against Fanady does not make Israelov a party to the dissolution

       action, let alone to the dissolution judgment. Section 2-1006 of the Code provides that

       "actions pending in the same court may be consolidated, as an aid to convenience,

       whenever it can be done without prejudice to a substantial right." 735 ILCS 5/2-1006

       (West 2012). There are three types of consolidations:

             "(1) where several actions are pending involving substantially the same

             subject matter, the court may stay proceedings in all but one and see

             whether the disposition of the one action may settle the others thereby

             avoiding multiple trials on the same issue; (2) where several actions

             involve an inquiry into the same event in its general aspects, the actions

             may be tried together, but with separate docket entries, verdicts and

             judgments, the consolidation being limited to a joint trial; and (3) where

             several actions are pending which might have been brought as a single

             action, the cases may be merged into one action, thereby losing their

             individual identity, to be disposed of as one suit." Shannon v. Stookey, 59

             Ill. App. 3d 573, 577 (1978).

¶ 41         Here, the second type of consolidation is at issue. Although Israelov's action to

       enforce his agreement with Fanady/Alpha and Harnack's petition for dissolution involve

       an inquiry into the same event in its general aspects, i.e., the purchase of a CBOE seat

       and the disposition of the shares exchanged for that seat, it is clear that the

       consolidation was only done for convenience. Separate case numbers were retained

       and, as the judgment for dissolution of marriage shows, separate judgments would be


                                                 20
       1-12-1424


       entered in each case. The judgment for dissolution of marriage pertained solely to

       Harnack's dissolution petition and, although it noted that Israelov's action remained

       pending, made no determination regarding that action.

¶ 42          The consolidation did not merge the two causes into a single suit, change the

       rights of the parties to each suit or make the parties in one suit parties in the other suit.

       The two actions did not merge into a single suit and, thus, Harnack did not become a

       party in the contract action between Israelov and Fanady/Alpha and Israelov did not

       become a party in the dissolution action between Harnack and Fanady. Shannon, 59 Ill.

       App. 3d at 577. The fact that Israelov's action remained unresolved thus had no impact

       on the finality of the judgment for dissolution of marriage as to the rights between the

       parties to the dissolution action, Harnack and Fanady. "To be final, an order or judgment

       must terminate the litigation between the parties on the merits or dispose of the rights of

       the parties, either on the entire controversy or a separate part thereof." In re Haley D.,

       2011 IL 110886, ¶ 61. The August 3, 2011, judgment for dissolution of marriage meets

       this test and is, therefore, a final judgment.

¶ 43          As the August 3, 2011, judgment for dissolution of marriage was a final default

       judgment, Fanady had up to 30 days after August 3, 2011, to file his section 2-1301(e)

       motion to set aside the judgment. Jackson, 397 Ill. App. 3d at 621; 735 ILCS 5/2-

       1301(e) (West 2012). Fanady did not file his section 2-1301(e) motion to set aside the

       judgment within 30 days. Instead, he filed it on April 3, 2012, eight months after the

       judgment was entered. The trial court's jurisdiction to consider a section 2-1301(e)

       motion lapses if the motion is filed more than 30 days following entry of final judgment.

       Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 206 (2010). Therefore, the trial


                                                        21
       1-12-1424


       court correctly determined that Fanady's untimely section 2-1301(e) motion could not be

       used to set aside the judgment for dissolution of marriage.

¶ 44          The trial court correctly determined that Fanady's section 2-1301(e) motion filed

       more than 30 days after entry of the judgment was untimely and his challenge to the

       judgment should be considered under section 2-1401(a) and not section 2-1301(e). We

       affirm the court's denial of Fanady's section 2-1301(e) motion to set aside the judgment

       for dissolution of marriage.

¶ 45          We would affirm the court's denial of Fanady's section 2-1301(e) motion to set

       aside the judgment even if the motion had been timely filed and the court had evaluated

       it under section 2-1301(e). The decision as to whether the default should be set aside

       under section 2-1301(e) is discretionary. In re Haley D., 2011 IL 110886, ¶ 69 (citing

       735 ILCS 5/2-1301(e) (West 2008)). "In exercising that discretion, courts must be

       mindful that entry of default is a drastic remedy that should be used only as a last

       resort" and that provisions governing relief from defaults "are to be liberally construed

       toward that end." Id. The overriding consideration in deciding a section 2-1301(e)

       motion to set aside a default judgment "is simply whether or not substantial justice is

       being done between the litigants and whether it is reasonable, under the circumstances,

       to compel the other party to go to trial on the merits." Id. However, "[i]n making this

       assessment, a court should consider all events leading up to the judgment," as " '[w]hat

       is just and proper must be determined by the facts of each case, not by a hard and fast

       rule applicable to all situations regardless of the outcome. [Citation.]' " Id. (quoting Mann

       v. Upjohn Co., 324 Ill. App. 3d 367, 377 (2001)).

              "Whether substantial justice is being achieved by vacating a judgment or


                                                    22
       1-12-1424


              order is not subject to precise definition, but relevant considerations

              include diligence or the lack thereof, the existence of a meritorious

              defense, the severity of the penalty resulting from the order or judgment,

              and the relative hardships on the parties from granting or denying

              vacatur." Jackson v. Bailey, 384 Ill. App. 3d 546, 549 (2008) (citing Mann

              v. Upjohn Co., 324 Ill. App. 3d 367, 377 (2001)).

¶ 46          Here, the record shows a lack of diligence by Fanady as a result of his complete

       refusal to participate in the dissolution proceedings for more than 15 months, his

       attempts to evade service of process and his refusal to comply with the court's orders

       regarding payment of maintenance and with its restraining orders and injunctions

       barring him from transfer of any assets held by him or his enterprises. It shows his

       attempts to evade the jurisdiction of the court and to defraud this court and the Florida

       court by obtaining a dissolution of marriage judgment under false pretenses in Florida

       and by moving the action to federal court through Alpha's action. It shows his forgery of

       a dissolution judgment in order to obtain a religious divorce and his attempts to hide

       marital assets by selling one presumptively marital CBOE seat and hiding the money

       received in Switzerland and by transferring 120,000 presumptively marital shares from

       the Alpha and Fanmare accounts. To paraphrase the court in Mann, 324 Ill. App. 3d at

       379, Fanady was the architect of his own predicament, and his complaint now that he

       was denied substantial justice will not be heard by this court.

¶ 47          It would not be reasonable to vacate the judgment and force Harnack to proceed

       to trial on her petition for dissolution of marriage a second time where any alleged errors

       in the judgment or inequalities in the distribution of assets are solely due to Fanady's


                                                   23
       1-12-1424


       failure to participate in the dissolution proceedings. Any errors or injustices in the

       judgment for dissolution of marriage of which Fanady now complains would not have

       occurred absent his abandonment of the litigation. Fanady chose not to participate in

       the litigation. He must now live with the consequences of that decision.

¶ 48         We also take note of the facts that one CBOE seat was sold and the proceeds

       sent to Switzerland, 120,000 CBOE Holdings shares are missing and unaccounted for

       and Fanady has failed to comply with the court's maintenance order. In light of these

       considerations, Fanady has not shown that the judgment for dissolution of marriage

       imposes a penalty or hardship on him.

¶ 49         We conclude that substantial justice was done and, even if the court had

       considered Fanady's motion to set aside the judgment for dissolution of marriage under

       section 2-1301(e), it did not abuse its discretion in denying the motion. We affirm the

       order denying Fanady's section 2-1301(e) motion to set aside the judgment.

¶ 50                            2. Section 2-1401(e) Petition to Vacate

¶ 51         We also affirm the trial court's denial of Fanady's section 2-1401(a) petition to

       vacate based on his lack of diligence.

¶ 52         Once the court's jurisdiction to vacate a final judgment under section 2-1301(e)

       lapses, section 2-1401 provides a means to reopen the judgment. Blazyk, 406 Ill. App.

       3d at 206.

                    "Section 2-1401 establishes a comprehensive, statutory procedure

             that allows for the vacatur of a final judgment older than 30 days. 735

             ILCS 5/2-1401(a) (West 2002). While the remedy in the statute does have

             its roots in common law equity, the General Assembly abolished the


                                                  24
       1-12-1424


              common law writ system and replaced it with the statutory postjudgment

              petition. [Citations.] Section 2-1401 requires that the petition be filed in the

              same proceeding in which the order or judgment was entered, but it is not

              a continuation of the original action. 735 ILCS 5/2-1401(b) (West 2002).

              The statute further requires that the petition be supported by affidavit or

              other appropriate showing as to matters not of record. 735 ILCS 5/2-

              1401(b) (West 2002)." People v. Vincent, 226 Ill. 2d 1, 7-8 (2007).

       "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 defense or claim; (2) due diligence in presenting this defense or claim

       to the circuit court in the original action; and (3) due diligence in filing the section 2-1401

       petition for relief." Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986).

¶ 53          When a trial court dismisses a section 2-1401 petition, or enters judgment on the

       pleadings of said petition without holding an evidentiary hearing, the standard of review

       to be applied is de novo. Cavalry Portfolio Services v. Rocha, 2012 IL App (1st) 111690,

       ¶ 9 (citing Vincent, 226 Ill. 2d at 14 (which dealt with narrow issue in which a judgment

       was being challenged for voidness under section 2-1401(f))). However, where, as here,

       a typical section 2-1401 two-tiered analysis in involved, "(1) the issue of a meritorious

       defense is a question of law and subject to de novo review; and (2) if a meritorious

       defense exists, then the issue of due diligence is subject to abuse of discretion review."

       Cavalry Portfolio Services, 2012 IL App (1st) 111690, ¶ 10 (following Rockford Financial

       Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 326-27 (2010), and Blazyk v. Daman

       Express, Inc., 406 Ill. App. 3d 203, 206 (2010)).


                                                     25
       1-12-1424


¶ 54          In his reply brief, Fanady asserts that he had the following meritorious defense:

              "[T]he Judgment for Dissolution overstated the marital property by

              including stock held by Fanady with partners, whose interests were not

              taken into account and/or protected, resulting in property owned by others

              who were not party to the divorce action being awarded to Harnack. This

              error also caused the court to award a disproportionate share of stock to

              Harnack."

       First, Fanady has no standing to assert that the judgment should be vacated because

       the interests of his partners were not protected. 9 It was for the negatively impacted

       partners to mount such a challenge to the judgment, not Fanady.

¶ 55          Second, as to there being a disproportionate share awarded to Harnack, Fanady

       presented no evidence to support his section 2-1401 petition. Section 2-1401(b)

       requires that a section 2-1401 petition be supported by affidavit or other appropriate

       showing as to matters not of record. 735 ILCS 5/2-1401(b) (West 2012). Although

       Fanady submitted an affidavit in support of his petition, the affidavit merely states that

       he is the respondent and over 21 years of age, nothing more. He submitted no evidence

       to demonstrate matters not of record, such as the existence of the partnerships or the

       number of shares he actually held.

¶ 56          Moreover, even if Fanady had shown a meritorious defense by a preponderance

       of the evidence, his section 2-1401 petition fails to allege, let alone show by a

              9
                 "[A] plaintiff has standing if he is able to show some injury in fact to a legally
       recognized interest. [Citation.] A proponent must assert his own legal rights and
       interests, rather than basing his claim for relief upon the rights of third parties." Helmig
       v. John F. Kennedy Community Consolidated School District No. 129, 241 Ill. App. 3d
       653, 658 (1993). "Where the effect of the challenged action is generalized, speculative
       or de minimus, the complaining party will not have standing." Id.
                                                    26
       1-12-1424


       preponderance of the evidence, his due diligence. Fanady made no claim below that he

       was diligent in discovering and presenting his defense to the trial court in the original

       action or in filing his section 2-1401 petition, and given the record before us, it is clear

       he could never make such a showing. On appeal, he again makes no claim that he

       complied with the due diligence requirements of section 2-1401. Instead, he asserts that

       "the requirement that substantial justice be achieved is more important than the due

       diligence requirements" and "justice and good conscience" require that the judgment for

       dissolution of marriage be vacated. Specifically, he argues that the judgment for

       dissolution of marriage "is so absurdly uneven and unfair that justice and fairness

       require it be set aside." Fanady asserts the judgment awarded Harnack "far in excess"

       of a fair share of the marital assets given the short length of marriage and that it was

       based on a "fundamental misunderstanding or misrepresentation" regarding the amount

       of CBOE Holdings stock owned by Fanady and, given the ISRFAN and Fanmare

       partnerships, the clear error that he was the 100% owner of 280,000 shares of stock.

¶ 57          Fanady is asking for equitable relief. In People v. Vincent, 226 Ill. 2d 1 (2007), in

       finding that the de novo standard of review rather than the abuse of discretion standard

       of review should be applied to dispositions under section 2-1401 entered without an

       evidentiary hearing, our supreme court dispelled the "erroneous belief that a section 2-

       1401 petition 'invokes the equitable powers of the court, as justice and fairness require.'

       " Vincent, 226 Ill. 2d at 15 (quoting Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 613

       (1963)). It stated that this "observation" had been true when such relief was available

       under common law writs but, when the legislature abolished the writs in favor of the

       section 2-1401 statutory remedy, "it became inaccurate to continue to view the relief in


                                                   27
       1-12-1424


       strictly equitable terms" and "relief [under section 2-1401] is no longer purely

       discretionary." Vincent, 226 Ill. 2d at 16.

¶ 58          The Vincent holding notwithstanding, courts have created equitable exceptions to

       the due diligence requirement of section 2-1401. Fanady cites to Cavalry Portfolio

       Services, 2012 IL App (1st) 111690, in which the court held: "a trial court ruling denying

       section 2-1401 relief can be vacated even in the absence of diligence where the

       defendant has a meritorious defense and actively seeks to vacate the judgment.

       [Citation.] More important than the due diligence requirement is the requirement that

       substantial justice be achieved." Cavalry Portfolio Services, 2012 IL App (1st) 111690,

       ¶ 18. The court explained:

                     " 'One of the guiding principles *** of section 2-1401 relief is that the

              petition invokes the equitable powers of the circuit court, which should

              prevent enforcement of a default judgment when it would be unfair, unjust,

              or unconscionable. [Citations.] *** Because a section 2-1401 petition is

              addressed to equitable powers, courts have not considered themselves

              strictly bound by precedent, and where justice and good conscience may

              require it a default judgment may be vacated even though the requirement

              of due diligence has not been satisfied.' Smith v. Airoom, Inc., 114 Ill. 2d

              209, 225 *** (1986) (citing American Consulting Association, Inc. v.

              Spencer, 100 Ill. App. 3d 917 *** (1981), Manny Cab Co. v. McNeil

              Teaming Co., 28 Ill. App. 3d 1014 *** (1975), and George F. Mueller &

              Sons, Inc. v. Ostrowski, 19 Ill. App. 3d 973 *** (1974))." Cavalry Portfolio

              Services, 2012 IL App (1st) 111690, ¶ 18.


                                                     28
       1-12-1424

¶ 59          As Israelov asserts, the cases on which Cavalry Portfolio Services relied in

       coming to the above conclusion all predate Vincent by more than 20 years and,

       therefore, do not take into account the Vincent holding that section 2-1401 does not

       "invoke[ ] the equitable powers of the court, as justice and fairness require." (Internal

       quotation marks omitted.) Vincent, 226 Ill. 2d at 15. However, Vincent also stated that

       relief under section 2-1401 should not continue to be viewed "in strictly equitable terms"

       and "is no longer purely discretionary" (emphases added) (Vincent, 226 Ill. 2d at 16),

       thus implying that, although no longer a strictly equitable remedy, relief under section 2-

       1401 could have a discretionary component. As the court in Cavalry Portfolio Services

       pointed out,

              "many, more recent decisions of the appellate court have recognized that

              the Vincent decision dealt with a narrow issue under section 2-1401(f) in

              which a judgment was challenged for voidness. The Vincent decision did

              not involve the due diligence, meritorious defense, and two-year limitation

              requirements that apply to other actions brought under section 2-1401.

              Rockford Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 326-27

              *** (2010); see also [Blazyk, 406 Ill. App. 3d at 206.] The Borgetti court

              found that the allegation of voidness in Vincent had nothing to do with

              equitable principles. Borgetti, 403 Ill. App. 3d at 327 ***. The court found

              that 'equitable principles and the exercise of discretion still apply in section

              2-1401 proceedings not involving judgments alleged to be void.' Id. at 328,

              ***." Cavalry Portfolio Services, 2012 IL App (1st) 111690, ¶ 10.

       In other words, the Vincent decision does not foreclose invocation by the trial court of its


                                                    29
       1-12-1424


       equitable powers to waive the due diligence requirements of section 2-1401 under

       appropriate circumstances. Those circumstances do not exist here.

¶ 60          "Relaxation of the due diligence requirement thereby entitling a defendant to a

       motion to vacate a judgment is justified only under extraordinary circumstances."

       Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005). Such

       circumstances exist, for example, "when it is clear from all the circumstances that a

       party has procured an unconscionable advantage through the extraordinary use of court

       processes" or where "some fraud or fundamental unfairness" has been shown.

       American Consulting Ass'n v. Spencer, 100 Ill. App. 3d 917, 923 (1981). Extraordinary

       circumstances may also exist where the failure to exercise due diligence was caused by

       circumstances that occurred outside the record and that were beyond the petitioner's

       control. Ameritech Publishing of Illinois, Inc., 362 Ill. App. 3d at 60.

¶ 61          Fanady presents no evidence to show that extraordinary circumstances exist to

       excuse his lack of diligence. He presents no evidence to show that Harnack used court

       processes to gain an unconscionable advantage or that her conduct suggests fraud or

       fundamental unfairness. He presents no evidence to show that, as a result of

       circumstances outside the record and beyond his control, i.e., through no fault or

       negligence on his part, the existence of a valid defense was not made known to the trial

       court and that he had a reasonable excuse for failing to take such action within the

       applicable time limits. Essentially, his only assertion is that the judgment for dissolution

       of marriage is "uneven and unfair" and based on a "fundamental misunderstanding or

       misrepresentation" regarding the amount of CBOE Holdings stock he owned. On the

       record before us, it is clear that any errors or one-sidedness in the judgment are solely


                                                     30
       1-12-1424


       due to Fanady's own conduct, the result of his refusal to participate in the dissolution

       proceedings.

¶ 62          The court based the judgment for dissolution of marriage on Harnack's evidence

       regarding the length of the marriage, the assets acquired by the parties during the

       marriage, Harnack's limited earning capacity, Fanady's vastly greater earning capacity,

       Harnack's recently diagnosed illness and Fanady's failure to comply with the court's

       order awarding Harnack maintenance and the resultant arrearage, all of which are

       factors to be considered in determining the allocation of marital assets under section

       504 of the Illinois Marriage and Dissolution of Marriage Act. Rather than participate in

       the action and present his own evidence to the court to rebut Harnack's evidence,

       Fanady chose instead to make underhanded efforts to prevent Harnack from getting her

       appropriate share of the marital assets and to avoid the trial court's jurisdiction. His

       behavior in this case has been so egregious, so contemptuous of the law and the court,

       that he cannot now complain that substantial justice requires that the judgment for

       dissolution of marriage be set aside. No exceptional circumstances exist that warrant

       relaxing the due diligence requirements of section 2-1401 for this individual. The court

       did not err in denying Fanady's section 2-1401 petition.

¶ 63                                    3. Remand With Directions

¶ 64          The court did not err in denying Fanady's motion to vacate the judgment under

       section 2-1301(e) or section 2-1401. Therefore, reversal and remand is not warranted

       under either of Fanady's arguments. However, given that the parties disagree regarding

       the source of the 40,000 shares that the court ordered transferred to escrow, we

       remand for clarification of this transfer provision.


                                                     31
       1-12-1424


¶ 65          In its dissolution of marriage judgment, the court found "the parties *** acquired

       various marital properties, including *** [t]he equivalent of 320,000 *** shares of [CBOE
                                                                                   10
       Holdings] stock (Steve Fanady being 100% owner of at 280,000)."                  It awarded

       Harnack 140,000 shares as her marital portion. It then ordered that CBOE Holdings and

       Computershare transfer 120,000 shares to Harnack and that 40,000 shares be

       transferred into an escrow account pending resolution of Israelov's claims. The parties

       do not agree in their interpretation of this transfer provision.

¶ 66          In her brief on appeal, Harnack asserts "it is clear that said 40,000 shares were

       placed in escrow out of the 120,000 shares awarded to her." 11 However, during oral

       argument before this court, represented by new counsel, Harnack asserted that the trial



              10
                The unrebutted evidence before the court was that Fanady acquired four
       CBOE seats during the marriage. These seats were the equivalent of 320,000 CBOE
       Holdings shares given that each seat was exchangeable for 80,000 shares when CBOE
       Holdings went public in June 2010 (4 @ 80,000 = 320,000). However, as a result of
       Fanady's selling of one seat, possible selling of half of one of his three remaining seats
       to Marme and removing 120,000 shares of the 240,000 shares actually received for the
       three seats in the Alpha and Fanmare accounts, by the time the judgment for dissolution
       of marriage was entered, "the equivalent of 320,000 [CBOE Holdings] shares" actually
       held was as follows:
                     -$2.775 million in a Swiss bank account;
                     -80,000 shares in the Alpha account, of which 40,000 are claimed by
              ISRFAN/Israelov;
                     -40,000 shares in the Fanmare account, all of which are claimed by
              Fanmare/Marme;
                     -120,000 shares, valued in excess of $4 million, transferred out of the
              Alpha and Fanmare accounts in early 2011 and disposition unknown; and
                     -possibly another $700,000 received from Marme for her half seat, the
              disposition of which is unknown.
              11
                  Israelov, although not a party to the judgment for dissolution of marriage,
       agreed with this interpretation during oral argument before this court, arguing that the
       trial court had intended that the 40,000 shares to be placed in escrow were to come
       from the 120,000 shares the court ordered CBOE Holdings and Computershare to
       transfer to Harnack, i.e., that Harnack was to receive only 80,000 shares.


                                                     32
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       court intended that the 40,000 shares to be placed in escrow were to be taken from the

       280,000 total shares and she be awarded 120,000 of the remaining 240,000 shares. 12

       In his briefs on appeal, Fanady asserts the latter interpretation of the judgment and the

       report of proceedings of the prove-up hearing arguably supports this interpretation.

       Additionally, CBOE Holdings and Computershare interpret the judgment for dissolution

       of marriage in the same manner as does Fanady and as did Harnack at oral argument,

       so that CBOE Holdings and Computershare are obligated to transfer 120,000 shares to

       Harnack immediately and transfer 40,000 shares to escrow, for a total transfer of

       160,000 shares. However, as in their interpleader action, they point out that they cannot

       comply with the judgment for dissolution of marriage as entered because they are in

       possession of only 120,000 shares. Given that conflicting interpretations of the transfer

       provision in the judgment for dissolution of marriage have arisen and that CBOE

       Holdings and Computershare have informed the court that they are holding only

       120,000 shares, we sua sponte remand to the trial court to amend the judgment for

       dissolution of marriage to clarify this point.

¶ 67          We caution that, by this remand, we are not vacating the judgment for dissolution

       of marriage and are not inviting further litigation regarding Fanady's attempts to vacate

       the judgment. We hold here that, for the reasons set forth above, Fanady is not entitled

              12
                  Harnack's calculation:
                       280,000 total shares
                       - 40,000 arguably nonmarital shares to be transferred to escrow
                       = 240,000 remaining marital shares
                              X 50% marital allocation
                       = 120,000 shares to Harnack immediately
       If Israelov fails to show that he was entitled to the 40,000 shares, i.e., that the shares
       are nonmarital, then Harnack would receive an additional 20,000 shares (50% of the
       40,000 escrowed shares).


                                                        33
       1-12-1424


       to relief under either section 2-1301 or section 2-1401. Our remand is for the sole

       purpose of clarifying the trial court's intent with regard to the 40,000 CBOE Holdings

       shares to be transferred to escrow.

¶ 68                                         CONCLUSION

¶ 69          For the reasons stated above, we deny Fanady's motion to strike Harnack's brief,

       affirm the trial court and remand with directions.

¶ 70          Affirmed and cause remanded with directions.




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