No. 2--04--0384

JUSTICE KAPALA delivered the opinion of the court:

Petitioner, Kimberly A. Wolff, appeals from an order of the circuit court of Du Page County granting respondent's, Dr. Richard A. Wolff's, amended motion to reconsider the final judgment of dissolution of marriage and its subsequent award of sole custody of the parties' two minor children to respondent following a new trial upon reopened proofs. For the reasons that follow, we affirm.

FACTS

The parties were divorced on October 25, 2002. On that date, the trial court entered ajudgment of dissolution of marriage that, inter alia, awarded petitioner sole custody of the minorchildren, Alexander and Aaron. On November 13, 2002, respondent, acting pro se, filed a timelymotion to reconsider pursuant to section 2--1203 of the Code of Civil Procedure (Code) (735 ILCS5/2--1203 (West 2002)) in which he raised issues related to the distribution of marital assets,rehabilitative maintenance, and the award of legal fees to petitioner. Respondent did not raise anyissue with respect to custody in this motion to reconsider.

The motion to reconsider came before the trial court for hearing on December 9, 2002. Before taking up the motion to reconsider, the trial court addressed respondent's newly filed motionto enjoin petitioner from moving with the children to Quincy, Illinois, some 300 miles distant fromDu Page County. The trial court allowed petitioner's oral motion to dismiss the motion to enjoin, ruling that it lacked authority to restrain petitioner from moving anywhere within the State of Illinois. The trial court then engaged in a colloquy with respondent, who was still pro se, in which it expressedreservations about having granted sole custody to petitioner in the first instance. The trial court saidit was "very disappointed" that petitioner now was planning to move away with the children. Thetrial court pointed out to respondent that his motion to reconsider did not allege that the trial courterred in awarding custody to petitioner as grounds for relief and, therefore, the trial court waspowerless to hear that issue. Respondent requested leave to amend the motion to reconsider, and thetrial court gave him until December 16, 2002, to file the amended motion. The amendment was notfiled within the extension of time granted by the trial court.

Respondent hired counsel who, on December 31, 2002, filed a motion to extend the time forfiling the amended motion to reconsider, and, although the record does not indicate whether therewas any ruling on the motion to extend, on January 6, 2003, the trial court gave respondent leave tofile the amended motion instanter. In pertinent part, the amended motion to reconsider alleged that"[s]ince the trial took place newly discovered evidence has surfaced that compels the court to changeits decision in granting sole custody to [petitioner]." The newly discovered evidence alleged byrespondent was a statement made by petitioner to respondent on November 29, 2002, that she wasmoving with the boys to Quincy. Respondent requested that the trial court reconsider its judgmentor, in the alternative, grant a new trial.

Petitioner brought a written motion pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 2002)) to dismiss the amended motion. Petitioner alleged that the trial court lackedjurisdiction to hear the amended motion inasmuch as the original motion did not raise the subject ofcustody and the amended motion was not filed within the extension given to respondent at the hearingon December 9. Petitioner's theory in her motion to dismiss was that section 2--616(b) of the Code(735 ILCS 5/2--616(b) (West 2002)), allowing amendments of pleadings after the running of thestatute of limitations period, applied to respondent's section 2--1203 amended motion to reconsider. In her motion to dismiss, petitioner also attacked the sufficiency of the allegations of newlydiscovered evidence. Among other things, she challenged the sufficiency of respondent's assertionthat he exercised due diligence in discovering the newly discovered evidence. The trial court deniedthe motion to dismiss. After the denial of the motion to dismiss, petitioner filed an answer to theamended motion to reconsider, in which she raised the same matters she advanced in her motion todismiss as affirmative defenses to the amended motion to reconsider. On April 14, 2003, the trialcourt held an evidentiary hearing on respondent's amended motion to reconsider. At this hearing,petitioner admitted that she signed a lease for a farmhouse in Quincy in July 2002 although she deniedthat a move to Quincy was anything more than one consideration among many at that time. The trialcourt granted the motion to reconsider and granted a new trial "on the limited issue of custody,visitation, and child support as it relates to the newly discovered evidence of Mrs. Wolff potentiallymoving to Quincy with the children." After taking additional evidence on those issues, andincorporating the prior evidence from the original trial and the evidence taken at the hearing on theamended motion to reconsider, the trial court entered an order awarding sole custody to respondenton December 31, 2003. Petitioner filed a timely appeal.

DISCUSSION

I. Denial of the Motion to Dismiss the Amended Motion to Reconsider

Petitioner first contends that the trial court erred in denying her motion to dismiss theamended motion to reconsider. We affirm the trial court's denial of the motion to dismiss on theground that petitioner employed a procedural nullity in filing a section 2--619 motion to dismissrespondent's amended section 2--1203 motion. Section 2--619 applies only to the dismissal ofpleadings. See 735 ILCS 5/2--619 (West 2002). A section 2--1203 motion to reconsider is not apleading. See In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414 (1993) (motion to reconsidercould not be dismissed pursuant to section 2--615 because that section applies only to the dismissalof pleadings). A motion is an application to the court for a ruling or an order in a pending case. William J. Templeman Co. v. Liberty Mutual Insurance Co., 316 Ill. App. 3d 379, 388 (2000). Apleading, in contrast, consists of a party's formal allegations of his claims or defenses. Templeman,316 Ill. App. 3d at 388 (holding that a motion for sanctions is not a pleading). Section 2--603 of theCode (735 ILCS 5/2--603 (West 2002)) defines a pleading as a cause of action, counterclaim,defense, or reply. A motion to reconsider a judgment is none of these. As the amended motion toreconsider could not be dismissed pursuant to section 2--619, we conclude that the trial court did noterr in denying the motion to dismiss.

II. Granting the Amended Motion To Reconsider

Petitioner claims, without citing authority, that the trial court lost jurisdiction overrespondent's motion to reconsider when respondent did not file his amended motion within the seven-day extension of time granted at the December 9, 2002, hearing. Petitioner asserts that oncejurisdiction was lost, the trial court could consider the amended motion only if it related back to theoriginal motion within the meaning of section 2-- 616(b) of the Code (735 ILCS 5/2--616(b) (West2002)), and because there was no relation back, the trial court abused its discretion in allowing ahearing on the amended motion to reconsider. The "relation-back" doctrine replaces the formerrequirement that original and amended pleadings state the same cause of action with the rule that theamended pleading must state facts that arise out of the same occurrence or transaction as that pleadedin the original pleading. Avakian v. Chulengarian, 328 Ill. App. 3d 147, 154 (2002). Where the trialcourt's determination of jurisdiction is based solely upon documentary evidence, our standard ofreview is de novo. Haubner v. Abercrombie & Kent International, Inc., 351 Ill. App. 3d 112, 117(2004).

Postponing the question of loss of jurisdiction for the moment, we examine section 2--616(b)'s applicability to a section 2--1203 motion to reconsider. Section 2--616(b) addressesamendments to pleadings. "Section 2--616 governs amendments to pleadings filed after the statuteof limitations period has expired. *** The purpose of section 2--616(b) is to insure fairness tolitigants rather than to unduly enhance the technical considerations of common law pleadings." Castro v. Bellucci, 338 Ill. App. 3d 386, 390-91 (2003). Section 2--616(b) provides that a cause ofaction, cross-claim, or defense set up in an amended pleading is not barred by lapse of time under anystatute or contract prescribing or limiting the time within which an action may be brought or rightasserted, if the time prescribed or limited had not expired when the original pleading was filed, andif it appears from the original and amended pleadings that the cause of action asserted, or the defenseor cross-claim interposed, in the amended pleading grew out of the same transaction or occurrenceset up in the original pleading. A motion to reconsider is neither a cause of action, a cross-claim, nora defense, and, as discussed above, is not a pleading. Therefore, section 2--616(b) has noapplicability to motions brought under section 2--1203. Moreover, section 2--616(b) applies toamendments to pleadings after the running of the statute of limitations period. A statute of limitationswas not implicated in respondent's amendment of his motion to reconsider.

Notwithstanding this procedural irregularity, petitioner's allegation that the trial court lostjurisdiction over the original motion is erroneous. It is undisputed that respondent filed a motion toreconsider within 30 days of entry of the judgment of dissolution, as required by section 2--1203 ofthe Code. The trial court did not rule on this motion before allowing respondent to file theamendment on January 6, 2003. Consequently, the motion remained pending, thereby preservingjurisdiction in the trial court. "If a post-trial motion is filed by one or both of the parties within 30days of the judgment, the trial court retains jurisdiction over the matter until the disposition of anypending post-trial motion." In re Marriage of Parello, 87 Ill. App. 3d 926, 931-32 (1980). Accordingly, we conclude that the trial court did not err in finding that it had jurisdiction to hear theamended motion to reconsider.

"The decision to grant or deny a motion for reconsideration is within the discretion of thecircuit court and will not be reversed absent an abuse of that discretion." In re Marriage of Gowdy,352 Ill. App. 3d 301, 307 (2004). "In determining whether the trial court abused its discretion, 'thequestion is not whether the reviewing court agrees with the trial court, but whether the trial courtacted arbitrarily without the employment of conscientious judgment or, in view of all thecircumstances, exceeded the bounds of reason and ignored recognized principles of law so thatsubstantial prejudice resulted.' " Gowdy, 352 Ill. App. 3d at 307, quoting In re Marriage of Aud, 142Ill. App. 3d 320, 326 (1986).

Petitioner contends that the trial court erroneously granted the amended motion toreconsider because the motion raised evidence that occurred after entry of the judgment of dissolutionand that was not in existence at the time of trial. Thus, we are called upon to decide whether "newlydiscovered evidence" for purposes of a section 2--1203 motion for new trial is limited to evidencethat existed at the time of trial, or whether it may include evidence of acts that did not occur untilafter the trial but which pertain to facts in existence at the time of trial. The parties cite no Illinoisor foreign cases to answer this question.

The judgment of dissolution was filed on October 25, 2002. According to the amendedmotion, on November 29, 2002, for the first time, petitioner related to respondent her intent to moveto Quincy. Petitioner maintains that this after-the-fact statement cannot form a proper basis for amotion to reconsider. Respondent counters that it is not the statement, but petitioner's prior intentas evidenced by the statement, that is at issue.

To justify setting aside a prior order based on newly discovered evidence, (1) the partyseeking to overturn the order must show due diligence in discovering the evidence; (2) the party mustalso show that he could not have produced the evidence at the first trial by exercising due diligence;(3) the party must demonstrate that the evidence is so conclusive that it would probably change thetrial result; (4) the evidence must be material and relate to the issues; and (5) the evidence cannotbe merely cumulative or serve the sole purpose of impeachment. Gersch v. Kelso-Burnett Co., 272Ill. App. 3d 907, 911 (1995). The threshold issue we must decide is whether petitioner's posttrialstatement that she was moving to Quincy with the boys is newly discovered evidence that may beused to prove a fact in existence at the time of trial, namely, her intent to move.

We are aware that the Fourth District of the Appellate Court recently stated that "[t]o present newly discovered evidence, a party must show that the newly discovered evidence existed before theinitial hearing but had not yet been discovered or was otherwise unobtainable." Stringer v. PackagingCorp. of America, 351 Ill. App. 3d 1135, 1141 (2004). However, in Stringer, the issue presented tothe court for decision was whether the defendant used due diligence in procuring its manager'saffidavit, and the statement of when the evidence needed to be in existence was not necessary to thedisposition of the case. Moreover, the court in Stringer provided no legal authority or analysis forits pronouncement. We decline to follow Stringer. We look instead to the Seventh Circuit'sinterpretation of Rule 60(b)(2) of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 60(b)(2)) fordirection on this issue.

Rule 60(b)(2) provides relief from judgments for "newly discovered evidence which by duediligence could not have been discovered in time to move for a new trial under Rule 59(b)." Fed. R.Civ. P. 60(b)(2). Rule 60(b)(2) is analogous to Rule 59(b) (Fed. R. Civ. P. 59(b)), and the samecriteria apply in evaluating new evidence offered under the two rules. Peacock v. Board of SchoolCommissioners, 721 F.2d 210, 212 (7th Cir.1983). Rule 59(b) and Rule 60(b)(2) are the functionalequivalents of our section 2--1203 and section 2--1401 of the Code (735 ILCS 5/2--1401 (West2002)), respectively. The Seventh Circuit's criteria for granting a Rule 60(b)(2) motion include thefollowing: the evidence was in existence at the time of trial or pertains to facts in existence at thetime of trial. United States v. McGaughey, 977 F.2d 1067, 1075 (7th Cir. 1992); see also UnitedStates v. International Brotherhood of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (considering aclaim that a postjudgment plea of guilty was newly discovered evidence); National Anti-HungerCoalition v. Executive Committee of the President's Private Sector Survey on Cost Control, 711 F.2d1071, 1075 n.3 (D.C. Cir. 1983) (considering task force reports that came into existence after thejudgment). We are aware that other foreign jurisdictions hold that evidence sufficient to merit a newtrial is evidence that existed at the time of trial, but that, for excusable reasons, the party was unableto produce at the time. See Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995); Wal-MartStores, Inc. v. Pitts, No. _______, slip op. at __ (Ala. Civ. App. 2004) ("Newly discovered evidencemeans evidence in existence at the time of trial of which the movant was unaware").

We believe that the federal rule is preferable. It more completely allows courts to ensure the correctness and fairness of judgments. However, there are limitations on the use of the rule we adopttoday. The newly discovered evidence must pertain to "facts" that were in existence at the time oftrial, not to opinions, estimates, evaluations, or predictions. Thus, for instance, an opinion renderedat trial on the amount of damages suffered by a plaintiff, which in reality proves to be wrong aftertrial, would not justify the defendant in moving for a new trial on newly discovered evidence. In casesdealing with opinions, estimates, evaluations, or predictions, the parties know that the fact finder isnot determining a historical truth but is making an estimate, or a prediction of future events. SeeFowler-Propst v. Dattilo, 111 N.M. 573, 576, 807 P.2d 757, 760 (N.M. App. 1991).

Consequently, we reject petitioner's argument that her statement could not be considerednewly discovered evidence because it was not in existence at the time of trial. Accordingly, the trialcourt did not abuse its discretion in granting the amended motion to reconsider on this ground.

Petitioner's next contention is that the trial court abused its discretion in granting the amendedmotion to reconsider in that respondent did not prove that he exercised due diligence in discoveringpetitioner's intent to move to Quincy. Petitioner specifically states that respondent, in conductingpretrial discovery and at trial, never asked petitioner whether she intended to move to Quincy. Respondent admits that this precise question was not asked. However, respondent testified that inthree hours of pretrial proceedings, petitioner "adamantly denied any attempt [sic] to moveanywhere." Respondent recalled that petitioner stated at her pretrial deposition that she intended tobe the stable parent and stay in the marital house. Respondent further testified at the hearing on theamended motion to reconsider that petitioner's attorney represented at trial that petitioner was notsincere about moving when she left respondent voice mails to that effect but, rather, was using thethreat to sell the marital home as a ploy to make respondent pay her money to fix up the house. Atthe hearing on the amended motion to reconsider, when asked whether petitioner ever indicatedbefore trial and judgment that she was moving to Quincy, respondent replied, "Not to Quincy. Notanywhere."

Petitioner never directly disputed any of these assertions. She testified only that she did nothave the intent to move to Quincy at the time of trial. She testified that she visited her parents inIowa, only a few miles from Quincy, on Thanksgiving 2002 and, after looking at the classifieds, shevisited several properties in Quincy. She explained that she signed the lease for the farmhouse inQuincy a month before trial, thinking she might use the property as an investment.

The state of the record on what transpired in pretrial discovery and at trial is less than ideal. For instance, we do not have the transcript, or even a portion thereof, of petitioner's pretrialdeposition. Nor do we have the portions of the trial transcript that are relevant to the issue ofwhether petitioner contemplated a move. However, we are able to glean from the record that duringthe pretrial proceeding in this case (1) respondent inquired of petitioner regarding her intent to move,and (2) petitioner kept secret her intent to move to Quincy. We believe that respondent's generalinquiries about petitioner's intent to move satisfied the due diligence requirement. The first timepetitioner ever mentioned to respondent her plan to move to Quincy was in the postjudgmentconversation in which she revealed it. In view of the representations made by petitioner prior to trialand at trial, respondent would have had no reason to ask petitioner specifically if she planned to moveto Quincy. Petitioner admitted that the only place she ever mentioned to respondent as a possiblealternative residence was West Chicago, which is in Du Page County.

In the context of a section 2--1401 petition, our supreme court stated in Ostendorf v.International Harvester Co., 89 Ill. 2d 273, 284-85 (1982), that to set aside a judgment based uponnewly discovered evidence, ordinary diligence in pretrial discovery is that which is reasonablycalculated to elicit information important to a litigant's case. For purposes of pretrial discovery, wetake "ordinary" diligence to be synonymous with "due" diligence, and we equate the due diligencerequirement in section 2--1401 with the due diligence requirement in section 2--1203. In Ostendorf,our supreme court held that a litigant exercises ordinary diligence when he poses interrogatoriesreasonably designed to elicit information. Ostendorf, 89 Ill. 2d at 284-85. The court stated:

"If his opponent then suppresses information within the scope of the interrogatories in sucha way as to prevent the inquirer from realizing what has occurred, the failure to discover theinformation is the result of the former's fault, not of the latter's negligence." Ostendorf, 89Ill. 2d at 285.

We believe the case at bar is analogous to Ostendorf. During a pretrial proceeding,respondent delved into petitioner's intent either to move or to stay in the house. At that proceeding,petitioner denied that she intended to move. The evidence at the hearing on the amended motion toreconsider showed that petitioner signed a lease on a farmhouse in Quincy approximately a monthbefore trial. Yet at trial she allowed her counsel to represent that she intended to stay in the housein Du Page County with the children. Based upon the evidence, we cannot say that the trial courtabused its discretion in finding that respondent exercised due diligence.

III. Award of Custody to Respondent

After hearing evidence on reopened proofs and incorporating all the prior evidence, the trial court found that petitioner formed the intent to move to Quincy as early as July 2002, when sheleased the farmhouse in that city. The trial court also found that petitioner's testimony was "repletewith inconsistencies, half formed reasons, and not persuasive." The trial court further concluded thatpetitioner was either unconcerned about the best interests of her children or that she intentionallyplanned the move to frustrate the relationship of her children with respondent.

The trial court should consider all relevant factors, including those listed in section 602 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/602 (West 2002)), whenmaking child custody determinations and decide what custodial order serves the child's best interest. In re Marriage of Spent, 342 Ill. App. 3d 643, 652 (2003). "A custody determination inevitably restson the parties' temperaments, personalities, and capabilities, and the witnesses' demeanor." Spent,342 Ill. App. 3d at 652. "Because the trial court is in a far better position to 'observe thetemperaments and personalities of the parties and assess the credibility of the witnesses,' the reviewingcourt affords great deference to the trial court's best interest findings." Spent, 342 Ill. App. 3d at 652,quoting In re Marriage of Stopher, 328 Ill. App. 3d 1037, 1041 (2002). The trial court's factualfindings will not be disturbed unless they are against the manifest weight of the evidence (see Spent,342 Ill. App. 3d at 652).

Petitioner posits that there is no rule of law supporting the proposition that the intentions ofa party to a lawsuit can be used to vacate or modify a judgment, except in cases of fraud orunconscionability as proven pursuant to section 2--1401 of the Code. Section 2--1401 allows relieffrom judgments after 30 days from their entry. As we held above, respondent's motion to reconsiderwas filed within 30 days of the judgment and his amended motion was timely. Therefore, we fail tosee how section 2--1401 governs this case, and petitioner does not further enlighten us.

Petitioner next contends that disturbing custody as a result of a motion to reconsider evadesthe strictures of section 610 of the Act (750 ILCS 5/610 (West 2002)), which provides that, unlessby stipulation of the parties, no motion to modify a custody judgment may be made earlier than twoyears after its date, unless the court permits it to be made on the basis of affidavits that there is reasonto believe the child's present environment may endanger seriously his physical, mental, moral, oremotional health. Petitioner did not raise this issue in the trial court and has waived it on appeal. Bonner v. City of Chicago, 334 Ill. App. 3d 481, 487 (2002). Waiver aside, we reject this argument. In In re Marriage of Stuart, 141 Ill. App. 3d 314, 316 (1986), the appellate court considered thisargument and held:

"[Section 610 of the Act] pertains only in the case of the exercise of a court's extraordinarycontinuing jurisdiction to modify a final custody order when, due to changed circumstances,the childrens' best interests require modification. [Citation.] Nothing in section 610 restrictsthe power of the court to vacate or revise a final judgment upon a timely post-trial motion ofa party, pursuant to section 2--1203 of the Code ***."

See also Klitzing v. Gottemoller, 76 Ill. App. 3d 783, 786 (1979). Accordingly, we hold that section610 of the Act was not implicated by respondent's amended motion to reconsider.

Petitioner next maintains that the trial court abused its discretion when it allowed evidence at the hearing on the reopened proofs on the issues of custody, visitation, and child support that was"not even remotely related to the potential move to Quincy." Petitioner does not set forth theobjectionable evidence about which she complains. Therefore, we have no basis to review this claimand find that it is waived for lack of argument. "Bare contentions without argument or citation ofauthority do not merit consideration on appeal." Spirit of Excellence, Ltd. v. Intercargo InsuranceCo., 334 Ill. App. 3d 136, 153 (2002).

Petitioner's penultimate contention is that respondent failed to prove that she had the intent to move to Quincy. Petitioner overlooks the fact that the trial court incorporated the evidenceadduced at the first trial and at the hearing on respondent's section 2--1203 amended motion toreconsider into the evidence presented at the trial on the reopened proofs. The trial court found,based upon all the evidence, that as early as July 2002 petitioner intended to move to Quincy with the children if she were awarded sole custody. The evidence showed that in May 2002 petitionerviewed the farmhouse she eventually leased. In July 2002 the property became available and wasoffered to her. She signed a two-year lease on July 8, 2002. Petitioner researched the Quincyschools her children would attend. In November 2002 she placed a for-sale sign on the maritalresidence, but she took the house off the market as soon as respondent brought the issue before thetrial court. The trial court found that there was no reason to take the house off the market ifpetitioner planned to move anywhere but Quincy. The trial court's factual findings are not againstthe manifest weight of the evidence. Petitioner's denials of her true intent smacked of prevarication. She testified that she viewed various properties in Quincy on Thanksgiving Day 2002 only afterglancing through the classifieds at her parents' home in Iowa. She made it seem that she was lookingat these properties in a casual spur-of-the-moment fashion, just for something to do. Yet she did notexplain why she was looking when she had already signed a two-year lease. Her explanations forsigning the lease were unconvincing. At the April 14, 2003, hearing she testified that the purpose ofleasing the farmhouse was to provide a financially stable position for the boys. Yet, at the hearingon the reopened proofs on December 16, 2003, petitioner denied that this was her reason for rentingthe house. She explained that the Quincy farmhouse represented a great investment opportunity. However, the trial court found this assertion to be preposterous, as the marital estate was all debt andpetitioner failed to show how she could afford an investment property.

Petitioner's last contention is that respondent's failure to reply to the affirmative defensesraised in petitioner's response to the amended motion to reconsider results in those matters beingdeemed admitted. Petitioner waived this issue by not bringing it to the trial court's attention. Therecord demonstrates that petitioner fully litigated the issues contained in the affirmative defenses. Litigating the issues raised by an affirmative defense waives any objection to the failure to file a reply. State Farm Mutual Automobile Insurance Co. v. Haskins, 215 Ill. App. 3d 242, 246 (1991). Failureto raise the lack of a reply to affirmative defenses in the trial court also results in waiver of that issueon appeal. Andrews v. Cramer, 256 Ill. App. 3d 766, 769 (1993).

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

O'MALLEY, P.J., and GILLERAN JOHNSON, J., concur.