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On March 7, 2000, the circuit court of De Kalb County entereda judgment dissolving the marriage of petitioner, Sheila A. Johnson(Sheila), and respondent, Gordon B. Johnson (Gordon). The judgmentincorporated a separation agreement that provided for thedisposition of the parties' property. Almost 20 months later, onNovember 1, 2001, Gordon filed a petition under section 2--1401 ofthe Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2000))to vacate the judgment. Sheila appeals from the trial court'sorder granting the petition. We affirm.

The separation agreement recited that Gordon earned $46,000annually and Sheila's annual income was $15,000. The agreementfurther recited that both parties were equally capable ofsupporting and maintaining themselves and that they waived allclaims for maintenance and all claims to each other's nonmaritalproperty. The agreement provided, inter alia, that the maritalresidence, worth approximately $130,000, would be assigned toSheila and that Gordon would pay Sheila $450 per week for 176months. Gordon would retain his pension. The $450 weekly paymentwas designed to compensate Sheila for releasing any claim againstGordon's pension and for paying off a $45,000 home equity loansecured by the marital residence. Other terms of the agreementproviding for the disposition of the parties' motor vehicles,household furnishings, personal belongings, and bank accounts neednot be described here.

The matter proceeded to a prove-up. Sheila was represented byattorney Roger W. Hayes, and Gordon appeared pro se. At theoutset, the trial court asked Gordon whether he was represented byan attorney. Gordon responded that he and Sheila had visited Hayestogether. The court then advised Gordon that Hayes representedonly Sheila and that his position was adverse to Gordon's. Thecourt asked Gordon whether he chose to represent himself, andGordon said that he did. The court also asked Gordon, "Youunderstand that we're gonna do things here this morning that affectyour legal rights on a permanent irrevocable basis?" Gordonreplied affirmatively.

Sheila testified that she was 49 years old and was employed asthe Sandwich Township assessor. Gordon was 50 years old and wasemployed as an assembler at the Caterpillar factory. The partieswere married in 1971 and had three children: 26-year-old Ryan, 22-year-old Jeffrey, and 19-year-old Stacey. Sheila identified theseparation agreement and testified that she had entered into itfreely and voluntarily, she had fully disclosed her assets toGordon, and she believed Gordon had also made full disclosure toher. She also reaffirmed her waiver of maintenance. After Hayescompleted his direct examination of Sheila, the following exchangeoccurred:

"THE COURT: What have they done with the pensions? Idon't have a copy of the settlement agreement.

MR. HAYES: I'm sorry. (Handed up)

THE COURT: Thank you.

You're getting the house, he's getting the pension.

THE WITNESS: Yes."

Gordon testified that he signed the separation agreement onthe morning of the prove-up. He testified that he had read andunderstood the agreement, he believed it was fair and just, and hehad signed it voluntarily. Gordon confirmed that he had completelydisclosed his income and assets to Sheila and he believed Sheilahad completely disclosed all her income and assets.

The trial court entered a judgment dissolving the parties'marriage. The court found that the separation agreement was notunconscionable and incorporated the agreement into the dissolutionjudgment.

As noted, Gordon filed his section 2--1401 petition almost 20months later. He complained, inter alia, that in light of the $450weekly payments for 176 months, the separation agreement wasunconscionable. Sheila moved to dismiss the petition pursuant tosection 2--615 of the Code (735 ILCS 5/2--615 (West 2000)). Thetrial court denied the motion. Sheila filed an answer to thepetition, and the matter proceeded to an evidentiary hearing atwhich the following salient facts were established. In 1999, afterChristmas, the parties discussed ending their marriage. Sheilagave Gordon a handwritten proposal for a property settlement. Sheila proposed that Gordon pay her $450 per week. Sheila wouldreceive the parties' home, and after repaying the home equity loan,she would release any claim to Gordon's pension. (The monthlypayment on the home equity loan was $457.)

Gordon agreed to these terms, and the parties visited attorneyHayes. Sheila later gave Gordon a copy of the separation agreementto review. Gordon testified that he was unsure why the agreementprovided that his weekly payments to Sheila would continue for 176months. He stated that he thought this might correspond to theperiod for repaying the home equity loan. Gordon testified that he thought 176 months was an outer limit; that the weekly paymentswould end when the loan was paid off; and that Sheila had told himshe would repay the loan as soon as possible. However, Gordonequivocated on this point, later testifying that he never reallythought that the duration of his weekly payments to Sheila wasrelated to the home equity loan.

Gordon testified that his employment benefits included a legalservices plan, and he had access to an attorney to advise andrepresent him in connection with the dissolution proceedings. Gordon acknowledged that he is able to read and has never beendiagnosed with a learning disability. He acknowledged that he readand understood the separation agreement. The parties stipulated tothe admission into evidence of a letter from an actuary statingthat the present value of Gordon's pension, as of October 1, 2001,was $99,090.

The trial court concluded that the separation agreement wasunconscionable. The court noted that the weekly payments had notbeen brought to the court's attention when it approved theagreement. This appeal followed.

Sheila initially argues that the trial court erred in denyingher motion to dismiss Gordon's petition. In essence, Sheila arguesthat the allegations are vague and conclusory. According toSheila, the petition is woefully deficient. Sheila has waived theissue.

After the trial court denied Sheila's motion to dismissGordon's petition, she filed an answer and the matter proceeded toan evidentiary hearing. "Generally, where a trial court denies adefendant's motion to dismiss a complaint, and that defendantelects to file an answer to the complaint, the defendant waives anydefect in the pleading." (Emphasis in original.) Adcock v.Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994). Moreover, the relateddoctrine of aider by verdict provides that where a defendant allowsan action to proceed to a verdict, the verdict will cure not onlyformal and purely technical defects and clerical errors in acomplaint, but will also cure any defect in failing to allege, ordefectively or imperfectly alleging, any substantial facts that areessential to a right of action. Adcock, 164 Ill. 2d at 60-61.

We next consider whether the trial court erred in grantingGordon's section 2--1401 petition. "A section 2--1401 petitionserves to bring before the court that rendered judgment 'facts notappearing of record which, if known to the court at the timejudgment was entered, would have prevented its rendition.' " In reMarriage of Broday, 256 Ill. App. 3d 699, 705 (1993), quoting In reMarriage of Travlos, 218 Ill. App. 3d 1030, 1035 (1991). Ordinarily, the party seeking relief must have acted with diligencein the original proceedings, and relief is usually unavailablewhere the party negligently failed to assert a defense or makefacts known to the court prior to entry of judgment. See Smith v.Airoom, Inc., 114 Ill. 2d 209, 222 (1986). Relief under section 2--1401 may be available to set aside a settlement agreement that isunconscionable or was entered into because of duress, coercion, orfraud. See In re Marriage of Hoppe, 220 Ill. App. 3d 271, 285(1991). Whether to award relief under section 2--1401 lies withinthe sound discretion of the circuit court depending on the factsand equities presented, and a reviewing court will not disturb thatdecision unless it represents an abuse of discretion. Airoom, 114Ill. 2d at 221.

Here, Gordon's section 2--1401 petition sought to bring theseparation agreement's weekly payment provision to the trialcourt's attention. Of course this provision was a matter of recordwhen judgment was entered, even though it is clear that the trialcourt was unaware of it. On the other hand, there was no evidenceof the actuarial value of Gordon's pension in the initialdissolution proceedings. Leaving aside, for the moment, thequestion of Gordon's diligence, the question is whether thatinformation, had it been known to the trial court, would haveprevented rendition of the judgment incorporating the separationagreement. More specifically, section 2--1401 relief depends onwhether the trial court would have found the agreementunconscionable. See 750 ILCS 5/502(b) (West 2000) ("The terms ofthe agreement *** are binding upon the court unless it finds ***that the agreement is unconscionable").

A marital settlement agreement may be found unconscionable"when it is improvident, totally one-sided or oppressive." In reMarriage of Carlson, 101 Ill. App. 3d 924, 930 (1981). WhileCarlson indicates that " 'unconscionability' includes 'an absenceof meaningful choice on the part of one of the parties togetherwith contract terms which are unreasonably favorable to the otherparty' " (emphasis added) (Carlson, 101 Ill. App. 3d at 930,quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449(D.C. Cir. 1965)), we do not view this as meaning that the absenceof a meaningful choice is the only basis for findingunconscionability. Accord In re Marriage of Gibson-Terry, 325 Ill.App. 3d 317, 326 (2001) (distinguishing "procedural"unconscionability from "substantive" unconscionability). Here, theagreement was so one-sided and oppressive that it wasunconscionable regardless of whether Gordon had a meaningfulchoice.

The principal assets in the parties' marital estate were their$85,000 equity interest in the marital residence and Gordon'spension, which had a present value of about $100,000. Gordon waspermitted to keep his pension, but was saddled with weekly paymentstotaling about $340,000 over 14 years. There is no evidence ofthe present value of these payments. However, it seems almostcertain that, by any reasonable calculation, the present value ofthe weekly payments would exceed the present value of the pension. If so, it is possible Sheila would effectively receive money andother property worth more than the value of the marital estate.

This result cannot be justified on the theory that Sheila isnot receiving maintenance. The $450 weekly payments were notdesignated maintenance, but compensation to Sheila for paying the$45,000 home equity loan and releasing any claim to Gordon'spension. Moreover, the separation agreement specifically recitesthat the parties were equally capable of supporting and maintainingthemselves. Sheila reaffirmed this during her prove-up testimony,and, in our view, she should not be permitted to recharacterize theweekly payments.

It remains for us to consider whether section 2--1401 reliefis unavailable because Gordon was not sufficiently diligent inbringing the relevant information to the trial court's attention atthe appropriate time. There appears to be no reason Gordon couldnot have had an actuarial analysis of his pension performed beforethe judgment was entered. Thus, the record tends to show thatGordon failed to act with proper diligence. However, therequirement that a section 2--1401 petitioner demonstrate diligenceis not inflexible. "[W]hen justice and fairness require, ajudgment may be vacated even though the requirement of duediligence has not been satisfied." Hoppe, 220 Ill. App. 3d at 283,citing Airoom, 114 Ill. 2d at 225. We believe the circumstances ofthis case warrant invoking this exception. The settlementagreement effectively leaves Gordon in penury. We also note thatneither Sheila nor her attorney corrected the trial court'sincomplete characterization of the separation agreement: "You'regetting the house, he's getting the pension." Their lack of candorin this case is not so different from the circumstances in In reMarriage of McGlothlin, 312 Ill. App. 3d 1145 (2000), where we heldthat equity, justice, and good conscience required relaxing thediligence requirement and vacating a default judgment where theparty who obtained the judgment failed to advise the court that theparties had previously entered into a settlement agreement. Here,as in McGlothlin, "[e]quity *** requires that the trial court'sjudgment, based as it was on misleading testimony and the unseemlysuppression of evidence, be vacated." McGlothlin, 312 Ill. App. 3dat 1149. Accordingly, we cannot say the trial court abused itsdiscretion in granting Gordon's petition.

For the foregoing reasons, the judgment of the circuit courtof De Kalb County is affirmed.

Affirmed.

O'MALLEY and GROMETER, JJ., concur.