In re Marriage of Salbi

Overview

The Second District affirmed the trial court's dismissal of petitioner Hussain Salbi's section 2-1401 petitions to vacate a 2023 judgment of dissolution, finding he failed to plead due diligence. The court dismissed the remainder of the appeal—challenging attorney fee and property sale orders—for lack of appellate jurisdiction because other post-dissolution claims remained pending without Rule 304(a) findings.

Key Facts

Parties married in 2004; dissolution judgment entered April 3, 2023, after multi-day trial before Judge Hansen, who made adverse credibility findings against petitioner

Direct appeal affirmed in Salbi I , 2023 IL App (2d) 230210-U

Petitioner filed initial section 2-1401 petition on April 2, 2025—one day before the two-year deadline—and an amended petition on April 14, 2025 (after the deadline)

Petitions alleged GAL conflict of interest, judicial bias, GAL report bias, and mischaracterization of an SBA loan—all based on events at or before trial

Neither petition contained factual allegations explaining why claims were not raised earlier or why petitioner waited nearly two years to file

Petitioner proceeded pro se after counsel withdrew in February 2025; over 90 post-judgment pleadings were filed

Petitioner never tendered a proposed amended petition after dismissal

Procedural History

Circuit Court of McHenry County (No. 21-DV-499). Judge Zalud granted respondent's section 2-615 motion to dismiss the 2-1401 petitions (May 22, 2025), clarified dismissal was without prejudice and denied leave to amend (June 20, 2025), and denied reconsideration (October 6, 2025). Petitioner filed timely notice of appeal. Second District Appellate Court; Rule 23(b) order. No appellee's brief filed; court proceeded under First Capitol Mortgage .

Holdings

Section 2-1401 dismissal affirmed ( de novo review of section 2-615 dismissal): Petitions failed to allege any facts supporting due diligence in presenting claims or in filing the petitions; claims were based on trial-era events previously litigated.

Denial of leave to amend affirmed ( abuse of discretion standard): No transcript of the amendment hearing was provided, triggering the Foutch presumption; petitioner also failed to tender a proposed amendment, forfeiting appellate review under Kirk v. Michael Reese Hospital .

Attorney fee and property sale orders dismissed for lack of jurisdiction : Multiple post-dissolution claims remained pending, no Rule 304(a) findings were entered, and no Rule 304(b) exception applied. The court noted Rule 304(b)(5) requires both a contempt finding and a penalty—here, contempt was expressly declined.

Legal Principles

735 ILCS 5/2-1401 : Requires pleading (1) meritorious claim/defense, (2) due diligence in presenting it at trial, and (3) due diligence in filing the petition. Smith v. Airoom , 114 Ill. 2d 209 ; People v. Vincent , 226 Ill. 2d 1 .

Section 2-1401 petitions are "essentially complaints" subject to section 2-615 dismissal if they fail to state a cause of action on their face. Vincent ; Ostendorf v. International Harvester .

Rule 304(a) and In re Marriage of Crecos , 2021 IL 126192 : Unrelated post-dissolution matters are separate "claims"; a final order on one claim is not appealable while others remain pending absent a Rule 304(a) finding.

Rule 304(b)(5) : Requires both a contempt finding and a penalty . In re Marriage of Gutman , 232 Ill. 2d 145 .

Foutch v. O'Bryant , 99 Ill. 2d 389 : Missing transcripts create presumption that the trial court's order conformed with law.

Failure to tender a proposed amended pleading forfeits appellate review of denial of leave to amend. Kirk v. Michael Reese Hospital , 117 Ill. 2d 507 .

Practical Implications

Section 2-1401 petitions must contain specific factual allegations of due diligence —merely reciting the legal standard or citing the statute is insufficient; practitioners must explain why the claim was not raised earlier and why the petition was not filed sooner

Always tender a proposed amended pleading when seeking leave to amend after a 2-615 dismissal; failure to do so independently forfeits the issue on appeal

Preserve the record : Ensure transcripts of all relevant hearings are included; the Foutch presumption is devastating to appellants

Post-dissolution appellate jurisdiction : Before appealing any post-dissolution order, confirm either (a) all claims are resolved or (b) a Rule 304(a) finding has been obtained; the court helpfully outlined remedial options including obtaining a 304(a) finding or using Rule 303(a)(2) rehearing procedures

Section 508(b) fee awards arising from contempt proceedings where contempt is denied are not independently appealable under Rule 304(b)(5)—practitioners must secure a 304(a) finding or await resolution of all claims

Section 2-1401 cannot be used to relitigate issues already decided at trial and on direct appeal; this constitutes a failure of both the meritorious-defense and due-diligence elements

Limitations/Caveats

This is a Rule 23(b) order with limited precedential value—it may be cited only in the limited circumstances permitted by Rule 23(e)(1)

No appellee's brief was filed; the court decided the case under the First Capitol Mortgage framework, which may limit the depth of adversarial testing of the issues

Multiple arguments were found forfeited under Rule 341(h)(7) for failure to cite relevant authority or develop arguments; the merits discussion on the 2-1401 petitions is somewhat intertwined with forfeiture findings

The court's discussion of remedial options for perfecting the appeal of the fee award and property orders (Rule 304(a) finding, Rule 303(a)(2) petition) is dicta/guidance , not a binding holding