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In Re Marriage of Herron



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.


Steven and Charlotte Herron lived in Louisiana with their two sons, Eric and David. In June 1977, a Louisiana court granted the husband a legal separation. The spouses entered into a written "Settlement of Community," dividing the marital property, and also agreed, though not in writing, that the husband would take custody of David and the wife of Eric. The Louisiana court entered an order incorporating the settlement and awarding custody as agreed.

Steven took a new job and moved to Illinois, bringing David with him. Charlotte followed, with Eric, allegedly to be near David, and hoping for a reconciliation with her husband, who helped her move and find a job.

Steven then filed a petition for dissolution of marriage in the circuit court of Cook County. He took Charlotte to his lawyer's office with him, and she signed a written appearance and a stipulation to treat the matter as a default. After hearing Steven's testimony on custody and other matters, the court granted dissolution. Its order, entered on March 15, 1978, incorporated the settlement. The order also recited, incorrectly, that the settlement dealt with custody of the children, found that it was best for the children that they remain in separate custody as before, and so ordered. At the time, it appeared that these terms were acceptable to both parents; Steven indicated his approval on the face of the order, and the judge told him to send it to Charlotte's counsel for signature or serve notice on her.

Charlotte filed a timely petition, under sections 50(5) and 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 50(5), 68.3), to set aside those portions of the judgment dealing with property and with custody of David, the child living with Steven. She did not challenge the part of the judgment leaving her with custody of Eric, or the dissolution itself. She alleged that the whole course of affairs, starting with the Louisiana suit for separation, involved massive fraud and duress practiced upon her by Steven. The circuit court judge held a hearing on these accusations, and clearly did not believe Charlotte's story. But he was not sure she had fully understood, when she agreed to a default in the case of the Illinois suit, that she was permanently giving up custody of David. By this time, Steven had remarried; and the court noted, sua sponte, that there had been a change of circumstances. On these two grounds, the court ordered a hearing on David's custody. Steven did not challenge the propriety of this decision. Rather, he attempted to convince the judge, on a petition for rehearing, that the judge had really meant to order a hearing on both children; but the judge denied that this was what he meant. If Steven wanted a hearing on Eric, the court told him, he need only ask for it. Steven did not make the invited motion, but filed a notice of appeal from the denial of his petition for rehearing. This was ineffective, because the order was not appealable. The circuit court then entered a new order, allowing Steven to withdraw his notice of appeal, and modifying the previous order, as Steven desired, to grant a hearing on the custody of both children. We granted Charlotte leave to appeal from this latest order. She contends that the hearing ordered by the circuit court judge should concern David alone.


• 1, 2 Supreme Court Rule 304 provides that "* * * any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." (Ill. Rev. Stat. 1977, ch. 110A, par. 304.) Vacating part of a final judgment, so that the remainder no longer adjudicates all the claims of all the parties, makes even that remainder no longer final or enforceable, and restores the circuit court's jurisdiction over the whole case, so that any part of the judgment can be revised. (Peterson Bros. Plastics, Inc. v. Ullo (1978), 57 Ill. App.3d 625, 373 N.E.2d 416.) Thus, when Charlotte reopened the portion of the March 15, 1978, order dealing with David's custody, she renewed the court's jurisdiction over the portion of the order dealing with the other child's custody as well.

Steven might then have moved the court to hear evidence on both children, and to revise the judgment granting custody of Eric to Charlotte; and it would have been proper for the court to reconsider Eric's custody. The original order was predicated on the judge's belief that both parents had agreed to the arrangement. While such an agreement is not binding upon the court, which must independently protect the welfare of the children, the virtues of parental agreement are strong, and the law appreciates them. (See, e.g., Ill. Rev. Stat. 1977, ch. 40, par. 610(b)(1), (2).) The parents obviously know more about the family than a judge is likely to learn in a short, formal hearing. In a more or less amicable dissolution, the parents' natural desire to do what is best for their children gives any agreement about custody great weight as an indicator of what is in the best interest of the children. Moreover, amicable settlement of custody arrangements is a good thing in itself, for peace between the parents must benefit the children; and a court will hesitate to tamper with what may be a fragile agreement, worked out only with difficulty. It was therefore proper for the court, after only a brief hearing, to enter an order ratifying such an agreement, especially one reaffirming an established arrangement. Upon discovering, however, that there was no such agreement, the court could properly, upon a motion by Steven, have vacated its entire previous custody order as resting upon the court's mistake. There is no special merit to a spurious agreement, and no reason to assume that it adequately secures the children's welfare.

The court could not feel confident that it is in Eric's best interest to be in Charlotte's custody merely because Steven once approved an order providing so. At the time, Steven, as well as the court, seems to have thought he and Charlotte had an agreement. He may have compromised. That is, Steven may have felt personally that both the children would be better off with him, but may have consented to place Eric with Charlotte in the belief that the gain in family harmony would outweigh the difference in custodial competence; or, misperceiving his wife's attitude, he may have put his misgivings aside out of misguided deference to her judgment.

To hold Steven to his end of the compromise, while allowing Charlotte to fight for both children, would be both unfair to Steven and contrary to public policy, for it would discourage attempts to settle custody disputes amicably. It would amount to making Steven's "settlement offer," so to speak, not only admissible in evidence, but conclusive against him.


Steven, however, refused to move the court to reconsider its award of Eric to Charlotte. Instead, he insisted that the court's order granting Charlotte's petition for a hearing about David had really applied to both children. Charlotte contends that it was improper for the court to reopen the issue of Eric's custody sua sponte.

The court's action can hardly be regarded as truly sua sponte, for Steven, however much he resisted making the appropriate formal motion, left no doubt that he wanted the ruling he got. Considering all the circumstances, we see no unfairness to Charlotte in treating Steven's proceedings in open court as the equivalent of a motion.

More importantly, even if the circuit court's action had been entirely the judge's own idea, there would have been nothing wrong with that. Particularly in custody matters, where the court has an independent duty to protect the best interests of the children, it would be unsatisfactory to limit the judge to a role of passive reaction to the parents' motions. Eric should not be bound by Steven's legal misconceptions or tactics. As already discussed, once Charlotte destroyed the appearance of an agreement, the judge had good reason to believe that his order placing Eric in Charlotte's custody ...

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