Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re Marriage of Panozzo

OPINION FILED MARCH 2, 1981.

IN RE MARRIAGE OF GERALDINE L. PANOZZO, PETITIONER-APPELLEE, AND RAYMOND J. PANOZZO, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Geraldine L. Panozzo (petitioner) filed a complaint for dissolution of marriage on the ground of physical cruelty. Raymond J. Panozzo (respondent) appeared by his former counsel and answered the complaint. On April 25, 1978, a judgment was entered in favor of petitioner for dissolution of the marriage. All financial and property matters were reserved for future hearing. The judgment provided "there is no just reason for delaying enforcement or appeal." Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).

On March 22, 1979, after trial, a supplemental judgment was entered disposing of property matters. More than one year after entry of the judgment for dissolution, and on April 20, 1979, respondent filed a verified motion to vacate both the judgment for dissolution and the supplemental judgment on property rights. This motion was registered by the clerk of the circuit court on June 22, 1979. Upon denial of this motion, respondent filed notice of appeal directed to both judgments and to a number of other orders in the case. We will review the merits of each judgment separately. We are constrained to note that pro se representation, although apparently indispensable, adds considerably to our task of terminating litigation.

I.

• 1 As shown above, the judgment for dissolution of marriage entered April 25, 1978, disposed of fewer than all of the claims between these parties. The judgment included "an express written finding that there [was] no just reason for delaying enforcement or appeal." (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) Therefore, the judgment was final and appealable. (See In re Marriage of Lentz (1980), 79 Ill.2d 400, 403 N.E.2d 1036.) The post-trial motion made by respondent to vacate the judgment for dissolution, filed April 20, 1979, and registered on June 22, 1979, was not filed in apt time within the applicable 30-day period. (Ill. Rev. Stat. 1979, ch. 110, par. 68.3.) Therefore, the post-trial motion did not stay the time for filing a notice of appeal from the judgment entered April 25, 1978. Fultz v. Haugan (1971), 49 Ill.2d 131, 135, 273 N.E.2d 403. See also English v. English (1979), 72 Ill. App.3d 736, 741, 393 N.E.2d 18.

• 2 Since the post-trial motion was filed more than 30 days after the final judgment for dissolution of marriage, the motion will be necessarily construed as having been filed under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). See Coronet Insurance Co. v. Jones (1977), 45 Ill. App.3d 232, 235, 359 N.E.2d 768, and other authorities there cited. See also Pennington v. Pennington (1975), 27 Ill. App.3d 344, 351, 326 N.E.2d 431.

Due diligence by the petitioner is an indispensable element of a successful petition under section 72 of the Civil Practice Act. Respondent was fully aware of the final judgment for dissolution of marriage entered April 25, 1978. The post-trial motion was not filed by respondent until April 20, 1979, and was registered on June 22, 1979. This filing was approximately 2 years after entry of the final judgment for dissolution. A number of decided cases require dismissal of a petition under section 72 which fails to show due diligence. Diacou v. Palos State Bank (1976), 65 Ill.2d 304, 357 N.E.2d 518; Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App.3d 909, 913-14, 393 N.E.2d 707.

Another indispensable element of a successful petition under section 72 is the showing of a meritorious defense. A petitioner who seeks to vacate a judgment more than 30 days after its rendition must show in his petition "that he has a meritorious defense to the claim on which the judgment is based." Graf's Beverages of Illinois, Inc. v. Tauber (1977), 50 Ill. App.3d 1047, 1051, 366 N.E.2d 150, and cases there cited.

• 3, 4 Although it is difficult to comprehend the verbiage in the petition to vacate, it may well be said that it raises the issue that the dissolution judgment was void. If so, respondent's "`section 72 petition is not subject to an objection that the [respondent] did not show due diligence.'" (Joseph A. Thorsen Co. v. Evans (1980), 82 Ill. App.3d 1119, 1123, 403 N.E.2d 666, quoting Hoopingarner v. Peric (1975), 28 Ill. App.3d 53, 57, 328 N.E.2d 171, appeal denied (1975), 60 Ill.2d 597, and cases there cited.) If respondent so contends, he is attempting a collateral attack upon the judgment for dissolution. In such case "`[t]he error of law must be apparent from an examination of the record, as the court cannot look into the evidence in the case * * * and in a chancery case that record is confined to the pleadings, process and decree.'" Thorsen, 82 Ill. App.3d 1119, 1123, quoting Collins v. Collins (1958), 14 Ill.2d 178, 183, 151 N.E.2d 813, and authorities there cited.

In the instant case, a complete examination of the pleadings, the process, and the judgment leaves no doubt that the judgment is not void. The issue of dissolution of marriage is justiciable so that the circuit court had jurisdiction over the subject matter of the judgment. (Ill. Const. 1970, art. VI, § 9.) Respondent had filed a general appearance and appeared in court with his counsel. The respondent was present at the hearing, and he and one of his several former attorneys participated therein without raising any issue as to the jurisdiction of the court. (See Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App.3d 1080, 406 N.E.2d 164.) We conclude the trial court had full and complete jurisdiction for entry of the judgment of dissolution. The judgment for dissolution of marriage, entered April 25, 1978, is therefore affirmed.

For the sake of completeness we will add parenthetically that we have examined the transcript of testimony taken on the issue of dissolution of the marriage. We find petitioner proved two acts of physical cruelty by respondent without conflicting evidence. We conclude the findings in the judgment for dissolution are supported by the manifest weight of the evidence.

II.

We will next consider the contentions of the parties regarding the supplemental judgment with reference to property disposition entered March 22, 1979. Respondent contends the supplemental judgment deprived respondent "of money and property without due process of Law" and the order allowing attorney's fees to petitioner's attorney to be paid by the respondent "has no basis in law or fact." Petitioner has taken a cross-appeal contending that she is entitled to the entire marital home and seeking reversal of an allowance of attorney's fees which the trial court ordered petitioner to pay her former attorney.

The parties were married on September 11, 1970. A girl was born to them on August 29, 1971, and a boy on March 12, 1973. Petitioner's two children by a former marriage, a girl born August 8, 1962, and a boy born December 15, 1965, were adopted by respondent.

The parties are owners of a marital home. The ground was purchased by a contribution of $10,000 made by petitioner combined with her weekly savings from household funds. The home was built on one lot and the adjoining ground is owned by the parties. The testimony shows the present value of this real estate is $74,900 and the adjacent lot is valued at $13,000. Petitioner performed various physical labor in helping to build the house. The second floor of the house remains unfinished. The judgment order directed sale ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.