Appeal from the Circuit Court of Cook County, the Hon. Donald
J. O'Brien, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
This case is before us to determine the constitutionality of certain provisions of the Illinois Marriage and Dissolution of Marriage Act which became effective October 1, 1977 (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.).
The cause was originally filed in the circuit court of Cook County as a class action seeking a declaratory judgment. Plaintiff, Joseph Kujawinski, who was a party to a pending divorce action, brought this action individually and as a representative of that class of persons similarly situated who were parties to pending divorce litigation or who would become parties to divorce litigation and who had ownership, title and a vested right to property. Plaintiff alleged that he was the father of six children born of his marriage to defendant Betty Ann Kujawinski. Edward O. Laumann, also a party to a pending divorce action, was permitted to intervene as a defendant. The matter was submitted to the trial court as a question of law on the pleadings. Prior to a hearing on the merits, plaintiff's motion to dismiss the class was granted, and the matter proceeded only on plaintiff's individual claims. The intervenor remained in the action.
The trial court entered an order declaring unconstitutional sections 503(b), 503(d), 510(c), 513, 801(b), 801(c), and 801(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 503(b), 503(d), 510(c), 513, 801(b), 801(c), 801(d)). The provisions relate primarily to the following three areas: (1) the retrospective application of the new act to property acquired prior to the effective date of the Act; (2) the allocation of funds for the education of children beyond the minority age of the children; and (3) the provision for child support beyond the death of the parent obligated to support. Because the trial court declared the above-cited provisions invalid, Laumann, defendant-intervenor (defendant), appealed directly to this court pursuant to Supreme Court Rule 302(a) (58 Ill.2d R. 302(a)).
We will first address those matters raised sua sponte by the trial court, as opposed to those raised by the parties. We note that the plaintiff has failed to pursue the former matters in this court.
The record indicates that the trial court, sua sponte, declared unconstitutional sections 801(c) and 801(d) of the Act, but that court's order did not incorporate any conclusions of law which might indicate the basis for such holding. Section 801(c) concerns modification proceedings, and section 801(d) governs appeals which were pending prior to October 1, 1977. (See Sommer v. Borovic (1977), 69 Ill.2d 220, 238.) Neither section is applicable to the plaintiff, who alleges only that he was a party to a divorce action pending in the circuit court of Cook County. This court has often propounded that "[i]t is axiomatic that one may not complain of a statutory provision which does not affect him" (Spalding v. City of Granite City (1953), 415 Ill. 274, 283), and that a court may not "determine the constitutionality of the provisions of an act which do not affect the parties to the cause under consideration." (Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 259, cert. denied (1971), 401 U.S. 928, 28 L.Ed.2d 209, 91 S.Ct. 924.) Accordingly, the trial court erred in declaring unconstitutional sections 801(c) and 801(d).
Also, there is some question as to whether the trial court's order, which declared unconstitutional section 513, should be read to apply to the entire provision. A part of the section relates only to support for mentally or physically disabled children. Although plaintiff alleged that he was the father of six children, the pleadings did not state that any of the children were mentally or physically disabled. To the extent that the trial court order embraced that part of section 513, it erred in determining the constitutionality of a statutory proviso that did not affect the parties involved.
Further, the record reveals that plaintiff challenged the constitutionality of section 801(b) only as it applies to property acquired prior to the effective date of the Act. The section provides that the Act "applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. * * *" (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) Nevertheless, the trial court declared the section unconstitutional and indicated during the trial proceedings that the section usurps the judicial function in violation of the separation of powers doctrine embodied in article II, section 1, of the Illinois Constitution. The transcript reflects that the trial court was concerned that this section prevents the court from determining facts in cases pending before it. We find this concern unwarranted. The section does not dictate the resolution of facts in pending actions; it merely mandates which law the court is to apply to the facts in pending cases. As this court has stated in the past:
"The entry of an order in a cause pending in court is a judicial function, which is not to be exercised at the direction of the legislature but in the judgment of the court. The legislature has power to change the law, and the court, in the decision of pending cases, will dispose of them under the law in force at the time its judgment is rendered." (People ex rel. Coen v. Henry (1921), 301 Ill. 51, 53.)
Therefore, section 801(b) does not invade the province of the judiciary in violation of the separation of powers.
Plaintiff's objection to section 801(b) is that it retrospectively applies the "marital property" provisions of section 503(b) to his case, and thereby precipitates an unconstitutional impairment of the obligation of contracts and an unconstitutional deprivation of property without due process of law. The latter section provides, in pertinent part:
"All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage * * * is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, par. 503(b).)
Plaintiff asserts that the effect of this provision, when applied retrospectively to property acquired prior to the effective date of the Act, is to convey to a spouse who had no interest in certain property prior to October 1, 1977, a partnership interest in that property. Plaintiff argues that the conveyance becomes operative during the marriage and is effective regardless of whether the marriage is ever dissolved. It is primarily upon this construction of the Act that plaintiff predicates his conclusion that retrospective application of such divestment of his property violates the contract and due process clauses of the Federal and State constitutions.
Plaintiff's construction completely distorts the nature and function of the provision. Section 503(b), as plaintiff concedes, must be read in consort with the provisions that immediately precede and ...