In re Marriage of Herrera, 2021 IL App (1st) 200850

- Case citation and parties
In re Marriage of Herrera, 2021 IL App (1st) 200850 (Ill. App. Ct. Sept. 30, 2021). Petitioner-Appellee: Leticia Herrera. Respondent-Appellant: Rafael Herrera. Judgment affirmed.

- Key legal issues
1) Whether service by publication and the affidavit supporting it satisfied section 2‑206/2‑207 of the Code such that the default dissolution judgment was valid.
2) Whether the circuit court erred in denying relief under 735 ILCS 5/2‑1401 (motion to vacate/modify) and in applying Smith v. Airoom, Inc., 114 Ill.2d 209 (1986) with respect to evidentiary requirements.
3) Whether equitable arguments (promissory estoppel, waiver, alleged misrepresentation) or claims of disability/meritorious defense justified relief from the 2006 judgment.

- Holding/outcome
The appellate court affirmed the circuit court’s denial of Rafael’s motions to quash service by publication, vacate the default judgment, and deny reconsideration of his 2‑1401 petitions. The dissolution judgment and subsequent orders were left intact.

- Significant legal reasoning (succinct)
The court emphasized that service by publication must be judged against statutory requirements (due diligence under §2‑206), and that a party who appears through counsel and participates in later proceedings cannot successfully claim lack of jurisdiction where in‑rem jurisdiction over property had been established. The record showed counsel’s appearance in 2006, an indigency filing, later agreed orders, and the parties’ subsequent conduct — undermining Rafael’s claim of no notice. The court reiterated that §2‑1401 is not a vehicle to remedy a litigant’s own negligence or untimely challenges and that equitable theories (waiver/promissory estoppel) do not automatically override statutory time limits or jurisdictional predicates. Smith requires an evidentiary hearing when a 2‑1401 petition and response present factual disputes; here the court conducted an evidentiary hearing and its findings as to credibility, due diligence, and timeliness were supported by the record and not reversible.

- Practice implications for family law attorneys
- Carefully draft and document affidavits of service by publication; establish and preserve a clear record of due diligence.
- Challenge service and jurisdiction promptly — delays risk forfeiture under §2‑1401 (two‑year considerations) and waiver when counsel appears.
- If facts are disputed, move for a Smith-type evidentiary hearing and ensure the record (transcripts/bystander reports) is preserved for appeal.
- Relying on equitable theories (promissory estoppel/waiver) to undo long‑standing defaults is difficult absent clear, timely evidence of fraud or lack of jurisdiction.
- When property/in‑rem jurisdiction was exercised, expect courts to favor finality unless movant proves voidness rather than mere voidability.