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In Re Marriage of Cohn

MODIFIED OPINION FILED ON REHEARING APRIL 20, 1981.

IN RE MARRIAGE OF RUTH M. COHN, PETITIONER-APPELLANT, AND STUART COHN, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Lake County; the Hon. JOHN J. KAUFMAN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

This appeal is from an order of the circuit court of Lake County denying the motion to vacate a judgment of dissolution of marriage. The threshold question is whether judgment dissolving a marriage but reserving property disposition, maintenance and child custody issues for future consideration is a "final judgment" within the meaning of Supreme Court Rule 304(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)).

On May 1, 1979, Ruth M. Cohn filed a petition to dissolve her marriage to Stuart Cohn. An uncontested hearing on grounds was held on May 14, after which the trial judge made the following oral pronouncement:

"The Court will find sufficient evidence to establish the grounds of extreme and repeated mental cruelty without cause or provocation by the petitioner and enters judgment of dissolution instanter.

The Court orders that the transcript be made a part of the file. This matter will be continued for disposition of property and custody to be determined by hearing or agreement to be brought up on notice for the same."

The docket sheet entry for May 14 shows the following:

"Hearing on petition and response — court finds sufficient evidence to establish extreme and repeated mental cruelty without provocation of petitioner — cause continued to property disposition, child custody and support, maintenance, etc. upon hearing or agreement to be brought up on notice for entry of judgment (See order)."

The order signed by the judge appears to be a standard order form which included blank spaces for filling in the specifics. The order was as follows, the underlined portions designating the words which were handwritten in the blank spaces:

"This cause coming on to be heard in open court on petition and reply heretofore filed herein and the court having heard evidence and being now fully advised in the premises, finds sufficient evidence to establish extreme and repeated mental cruelty without cause or provocation on behalf of the petitioner.

It is thereupon ordered by the court that said cause be and the same is hereby continued to property disp., custody & maint. either by hearing or agreement to be brought up on notice for entry of judgment."

On December 12, 1979, Stuart Cohn filed a motion requesting the court "to enter the attached judgment for dissolution of marriage in accordance with the proceedings which were held on May 14, 1979." The proposed judgment included the notation "ENTERED NUNC PRO TUNC May 14, 1979." On the same day, Ruth Cohn filed a response to the motion, alleging that she and respondent had resumed cohabitation as husband and wife following the May 14 hearing, that she became pregnant as a result, and was then six months pregnant. She stated she relied upon representations of the respondent, upon which she resumed cohabitation with him, and moved the court to vacate and hold for naught the proceedings and testimony held on May 14, 1979, and requesting that all testimony, hearing and evidence be expunged from the record.

The court entered the following order on December 12, 1979:

"ON MOTION OF Stephen H. Katz Attorney for Respondent to enter judgment herein and the court having considered the transcript of proceedings on May 14, 1979 and having heard the arguments of ...


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