                                  Illinois Official Reports

                                          Appellate Court



                       In re Marriage of Harnack, 2014 IL App (1st) 121424



Appellate Court              In re MARRIAGE OF PAMELA HARNACK, Petitioner-Appellee,
Caption                      and STEVE FANADY, Respondent-Appellant (Jerome Israelov,
                             CBOE Holdings, Inc., and Computershare Shareowner Services LLC,
                             Plaintiffs; Steve Fanady, Alpha Industries LLC, Pamela Harnack,
                             Jerome Israelov, Michelle Marme, Fanmare and Grund & Leavitt,
                             P.C., Defendants).

District & No.               First District, Fifth Division
                             Docket No. 1-12-1424

Filed                        November 21, 2014
Rehearing denied             December 19, 2014

Held                         In the matter of a relatively complex marital dissolution appeal
(Note: This syllabus         complicated by respondent husband’s failure to participate in the
constitutes no part of the   proceedings in a meaningful manner and the interjection of a business
opinion of the court but     associate’s claim against respondent arising from a venture into
has been prepared by the     options trading, the appellate court affirmed the trial court’s denial of
Reporter of Decisions        respondent’s motion to set aside the judgment pursuant to section
for the convenience of       2-1301(e) of the Code of Civil Procedure and his motion to vacate the
the reader.)                 judgment under section 2-1401(e) of the Code, since respondent failed
                             to show that the judgment imposed a penalty of hardship on him and
                             respondent’s own actions were the sole cause of any errors or
                             unfairness he alleged existed in the trial court’s judgment; however,
                             due to the disagreement over the source of certain stock the trial court
                             ordered placed in escrow pending the resolution of the action filed by
                             respondent’s business associate, the cause was remanded for
                             clarification of which stock and how much of the stock would be
                             transferred to fund the escrow.


Decision Under               Appeal from the Circuit Court of Cook County, Nos. 08-D-02844,
Review                       11-CH-7166, 11-CH-35656; the Hon. David E. Haracz, Judge,
                             presiding.
     Judgment                Affirmed and cause remanded with directions.


     Counsel on              Schmidt & Barbrow, P.C., of Wheaton (Janella L. Barbrow and
     Appeal                  Jeffrey M. Jacobson, of counsel), for appellant.

                             Allan W. Masters, Ltd. (Allan W. Masters, of counsel), and Hunt &
                             Associates, P.C. (Keith L. Hunt, of counsel), both of Chicago, for
                             appellee.



     Panel                   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 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




                                                 -2-
     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
¶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 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

         1
          The interpleader action was filed in the names of CBOE Holdings, Inc., 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-
       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
                 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 $1,312,500 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 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


                                                  -4-
       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 (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 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. 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

           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.
           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

                                                     -5-
       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 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 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

       entered, Fanady had already withdrawn 120,000 of those shares from the Alpha and Fanmare accounts,
       leaving only 120,000 shares in the accounts.
           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.

                                                     -6-
¶ 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 2-1301 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.
¶ 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

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

                                                    -8-
       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 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 dissolution of marriage.7


           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 ***.”).

                                                     -9-
¶ 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 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.
¶ 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

                                                   - 10 -
       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 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.

           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 nonmarital,
       those shares should, as Harnack’s counsel succinctly stated, come “off the top” of all marital shares
       rather than solely from Harnack’s shares.

                                                       - 11 -
¶ 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 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 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 court correctly

                                                  - 12 -
       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 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 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

                                                  - 13 -
       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 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 is 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)).
¶ 54        In his reply brief, Fanady asserts that he had the following meritorious defense:


                                                   - 14 -
               “[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 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

           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.

                                                        - 15 -
       became inaccurate to continue to view the relief in 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.
¶ 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
       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

                                                  - 16 -
       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 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.
¶ 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 Holdings]


                                                   - 17 -
       stock (Steve Fanady being 100% owner of at 280,000).”10 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 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

           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.
            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).

                                                      - 18 -
       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 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.




                                                 - 19 -
