Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Affirmed in part, remanded in part,
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
These appeals were taken by defendant from orders which were entered to enforce the support provisions of a separate maintenance decree. A recitation of the earlier proceedings is necessary to an understanding of the issues now before us.
On September 22, 1966, after a trial by jury, the court entered a decree for separate maintenance which ordered defendant to pay plaintiff permanent support of $750 per month, retroactive to January 11, 1962, amounting to $13,251.70. The decree also found that real estate located at 3168 and 3170 W. Monroe, Chicago, was held jointly by plaintiff and defendant, and should be sold, with the proceeds to be divided equally between the parties after payment of certain expenses. The court expressly retained jurisdiction to enter such further orders as equity might require. Defendant sought review of this judgment in appeal No. 51,903.
Plaintiff then filed a petition on November 9, 1966, for the issuance of a rule on defendant to show cause why he should not be held in contempt for failure to make the payments required by the separate maintenance decree. Plaintiff also asked for attorneys' fees and costs.
A hearing on December 30, 1966, resulted in the entry by the court of three orders: (1) defendant was ordered to pay plaintiff $10,000 for attorneys' fees and other costs in defense of appeal No. 51,903; (2) judgment was entered against defendant in the amount of $14,776.70 covering defendant's default in support payments to plaintiff through October 22, 1966, with execution to issue; and (3) a rule was issued against defendant to show cause why he should not be held in contempt for failure to pay the $14,776.70. The rule was made returnable January 31, 1967. Defendant's motions to vacate these orders were denied on February 9, 1967, and the hearing on the rule to show cause was continued. Defendant also sought review of these orders in appeal No. 52,198.
The two appeals (Nos. 51,903 and 52,198) were consolidated by order of another division of this court and were later dismissed on November 13, 1967, on the plaintiff's motion. Defendant's motion to vacate the dismissal was denied on November 28, 1967. Defendant then filed a petition for leave to appeal in the Illinois Supreme Court, but the petition was denied on March 27, 1968 (39 Ill.2d; No. 41,141). On October 14, 1968, certiorari was denied by the United States Supreme Court. 37 USLW 3134 (US Oct 15, 1968).
The consolidated appeal now before this court arises from two subsequent orders of the trial court. On October 18, 1967, the first of the two orders was entered when the court, acting on its own motion (after being advised that the building at 3170 W. Monroe, which the separate maintenance decree had ordered to be sold, had been destroyed by fire), directed that the net insurance proceeds, amounting to $13,641.04, after expenses and various other deductions, be divided equally between plaintiff and defendant as joint tenants. The $6,820.52 to be awarded defendant, however, was applied to the $14,776.70 arrearage found due in the December 30, 1966 judgment order. Defendant, therefore, was given a credit of $6,820.52, leaving a balance in arrears due plaintiff of $7,956.18. Further, defendant was ordered to resume support payments to plaintiff of $750 per month, as required by the decree for separate maintenance, and was directed to pay "a substantial sum" on the $7,956.18 arrearage by November 21, 1967. Also, plaintiff was directed to file a statement of receipts and disbursements in connection with her operation of the premises at 3170 W. Monroe. The hearing on the rule to show cause was again continued. From this order defendant appealed, and that appeal is now before us as cause No. 52,826.
On January 8, 1968, the court conducted a hearing on the return of the rule to show cause. At its conclusion, the court ordered defendant committed, in contempt, to the County Jail for six months or until payment of the $7,956.18 arrearage. Defendant's appeal from this order as cause No. 52,797 is also now before us, consolidated with No. 52,826.
Defendant contends that the trial court was without jurisdiction to adjudicate the property rights of the parties in the separate maintenance action. Separate maintenance is a remedy in equity, created by statute, whereby one spouse who, without fault, lives apart from the other, may receive reasonable support and maintenance while living apart. Ill Rev Stats (1967), c 68, § 22 et seq. The process, practice, and proceedings in actions to obtain separate maintenance are the same as those in divorce actions (Ill Rev Stats (1967), c 40, § 1 et seq.). Ill Rev Stats (1967), c 68, § 23.2. Thus, unless otherwise specifically provided, separate maintenance actions are governed by the same principles as are other civil cases. Ill Rev Stats (1967), c 40, § 7.
This court must decide this jurisdictional question raised by defendant in spite of the fact that the original consolidated appeals (Nos. 51,903 and 52,198) were dismissed. While res judicata will apply to all decisions that have been properly disposed of on appeal, jurisdictional issues persist and may be raised at any time. As stated in Forsberg v. Harris, 27 Ill. App.2d 159, at pages 171-172, 169 N.E.2d 388:
"One of the essentials of a valid judgment is that the court have jurisdiction to render that particular judgment. . . ." [quoting from Armstrong v. Obucino, 300 Ill. 140]. Nor does the fact that the court has found that it has jurisdiction add anything to its authority, since where the court has exceeded its power to act in the particular cause before it, its finding that it had the power so to act adds nothing to its authority since such finding itself is devoid of authority.
We are concerned in the instant case with the court's jurisdiction to order (as it did in the decree for separate maintenance), that certain property, found to be owned jointly by plaintiff and defendant, be sold, and the proceeds divided equally between them.
Generally, courts have no power to adjudicate property rights in a separate maintenance action. E.g., Olmsted v. Olmsted, 332 Ill. App. 454, 75 N.E.2d 774. The separate maintenance statute does not authorize the court to adjudicate property rights, and, further, the courts have, as a general rule, held that in separate maintenance proceedings this power does not exist independent of the statute. Loss v. Loss, 80 Ill. App.2d 376, 385, 224 N.E.2d 271. However, adjudication of property rights in separate maintenance actions has been held valid in certain situations. In Glennon v. Glennon, 299 Ill. App. 13, 19 N.E.2d 412, the court said that it would liberally construe the provisions of the Civil Practice Act to permit a property adjudication in a suit for separate maintenance. This decision was impliedly overruled in Petta v. Petta, 321 Ill. App. 512, 53 N.E.2d 324. In that case no pleadings had asked for such a determination but the court stated that if the parties had submitted their property rights for determination, a different question would have been presented.
There have been other situations in which property adjudications have been upheld. Where both parties asked for adjudication of property rights and introduced evidence in regard thereto, the court was held to have acted within its power in adjudicating these rights. Decker v. Decker, 279 Ill. 300, 116 N.E. 688. Also, since a wife has the right to her separate property and may not be precluded from asserting this right in an appropriate action, it has been held that she might properly join an action ...