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Zalduendo v. Zalduendo

OPINION FILED JANUARY 13, 1977.

YOLANDA ZALDUENDO, PETITIONER-APPELLEE,

v.

CARLOS ZALDUENDO, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT CHAPMAN BUCKLEY, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 7, 1977.

In this appeal, we are called upon to decide two issues — whether the circuit court has jurisdiction to award child support on a divorce decree entered in a foreign country where the decree made no provision for such support; and whether the trial court had authority to award attorney's fees for the defense of this appeal.

Carlos and Yolanda Zalduendo, natives of Cuba, were married in that country and divorced from each other on January 29, 1968, by a Havana court. That decree reads literally in the English language as follows:

"This certifies that in Divorce proceedings No. 736 filed in 1967, it is the order of the court entered January 15, 1968 that the bonds of matrimony between Carlos Vincent Zalduendo and Yolanda Gonzalez Beltrones are terminated."

Carlos Zalduendo was plaintiff in that proceeding, and the decree made no disposition of property, contained no money award or judgment, and did not include any reference to children born of the marriage. Both parties subsequently made their way to the United States.

The Cuban decree was registered in the circuit court of Cook County on February 2, 1970, and on February 20, 1970, Yolanda filed a verified petition for child support which alleged the marriage and divorce of the parties in Cuba, the registration of the Cuban decree, and which asserted it to be a fully enforceable decree of the circuit court. The petition sought support for a child, Teresa Zalduendo, allegedly born of the marriage. Carlos filed no pleading in answer to this petition and, after a hearing on February 27, 1970, the trial court ordered defendant to pay $100 per month for the support of the child and to pay a fee of $100 to plaintiff's attorney. Carlos has complied fully with that order to the present time. (The transcript of the hearing and the order of the court recite that both parties were represented at the hearing.) No appeal was taken from the 1970 order.

On September 5, 1974, Yolanda filed a second petition to modify the order of support, alleging the increased age of the child, her medical expenses, and the increased earnings of Carlos as changes in circumstances justifying an increase in child support.

Carlos entered a "special and limited" appearance and moved to dismiss the proceedings for lack of subject matter jurisdiction. This motion was denied by the trial court, and the special appearance was quashed. Thereafter, in an answer to the petition, Carlos asserted that the registration of the Cuban decree was invalid and unenforceable in Illinois; that he was not the father of the child; that the court lacked both subject matter and personal jurisdiction; that the 1970 order was not a proper exercise of the trial court's power; and that the proceeding was not the enforcement of a "foreign judgment" within the meaning of the Uniform Foreign Money-Judgments Recognition Act. Ill. Rev. Stat. 1969, ch. 77, par. 121(2).

He then moved for an order requiring a blood test to determine the paternity of the minor child, under the provisions of the Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1973, ch. 106 3/4, par. 1 et seq.). Yolanda answered the motion for a blood test by arguing that the paternity issue was res judicata by reason of the order entered in the 1970 proceedings requiring Carlos to pay $100 monthly for the support of the child. She also moved to strike the affirmative defenses in defendant's answer.

On January 14, 1975, the trial court after holding that it had subject matter and personal jurisdiction, denied the motion for blood tests and struck the affirmative defenses in Carlos' answer. On March 14, 1975, he was ordered to pay child support at the increased rate of $75 per week, retroactive to September 5, 1974, and to pay Yolanda's attorney's fees in the amount of $1,000. After he had filed a notice of appeal from those orders, she petitioned and an order was entered requiring him to pay her attorney $2,500 to defend the appeal. He appealed from that order, and we consolidated the appeals.

OPINION

Carlos has advanced a number of contentions, but the heart of his appeal lies in the jurisdictional issue — to which we first address ourselves. In that regard, it is his argument that the trial court lacked jurisdiction over the subject matter and, because the court had no statutory authority on which to base the various orders entered, they are null and void.

• 1 It is, of course, axiomatic that orders entered by a court lacking subject matter jurisdiction are void. (Cash v. Maloney (1949), 402 Ill. 528, 84 N.E.2d 390.) Subject matter jurisdiction cannot be conferred on a court by consent of the parties. (Werner v. Illinois Central R.R. Co. (1942), 379 Ill. 559, 42 N.E.2d 82.) It is not waived by a failure to make timely objection (Jackson v. Jackson (1965), 55 Ill. App.2d 77, 204 N.E.2d 153) and may be attacked at any time, either directly or collaterally (Bratkovich v. Bratkovich (1962), 34 ...


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