In re Marriage of Brubaker, 2022 IL App (2d) 200160

1. Case citation and parties
- In re Marriage of Brubaker, 2022 IL App (2d) 200160 (Ill. App. Ct., 2d Dist. Jan. 14, 2022).
- Petitioner-Appellant: Rockne L. Brubaker. Respondent-Appellee: Monica L. Brubaker.

2. Key legal issues
- Whether a post-dissolution 735 ILCS 5/2-1401 petition to vacate for alleged fraudulent concealment of a marital asset (a Chicago lakefront condominium owned through an LLC) must fail as a matter of law where the parties waived formal discovery in the original dissolution.
- Whether petitioner exercised due diligence (or was charged with lack of due diligence) during the original proceedings such that the two-year 2-1401 limitations period was not tolled by fraudulent concealment.

3. Holding/outcome
- The appellate court reversed the trial court’s grant of summary judgment for respondent and remanded for further proceedings. The court held that waiver of formal discovery does not, as a matter of law, bar a 2-1401 fraudulent-concealment claim; factual disputes about discoverability and due diligence precluded summary disposition.

4. Significant legal reasoning
- The court emphasized the governing standard: a 2-1401 fraud-based petition must plead and (at summary judgment) show that fraud or concealment prevented discovery of the claim through due diligence, which tolls the two-year limitations period (735 ILCS 5/2-1401(c)). Whether information was reasonably discoverable is a factual question not resolved automatically by a discovery waiver.
- The trial court erred by treating the parties’ mutual waiver of formal discovery (and petitioner’s testimony at prove-up) as conclusive proof of lack of due diligence. The appellate court found material factual disputes: deposition testimony and documentary evidence (e.g., canceled checks, testimony that third parties knew of the condo and business payments) created triable issues whether respondent affirmatively concealed the asset and whether petitioner, exercising reasonable diligence, could have discovered it pre-judgment.
- The court declined to rule that mere opportunity (e.g., ability to subpoena or depose) converts a concealment claim into a nullity when the nonmoving party presents evidence that concealment made discovery impracticable.

5. Practice implications
- Waiver of formal discovery in dissolution does not automatically preclude subsequent 2-1401 petitions alleging fraudulent concealment; courts must assess discoverability and due diligence on the facts.
- Allegations of affirmative misrepresentations in financial disclosures/MSA and evidence from third parties (business records, canceled checks, depositions) can create triable issues supporting tolling.
- Practitioners should preserve and obtain business/bank records and third-party testimony during dissolution; if suspect concealment, issue subpoenas/depositions and document inducements to waive discovery. When defending a 2-1401 claim, be prepared to show as a factual matter that the asset was reasonably discoverable pre-judgment.