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In Re Marriage of Flatow

OPINION FILED DECEMBER 16, 1981.

IN RE MARRIAGE OF DAWN I. FLATOW, PETITIONER-APPELLANT, AND ROBERT A. FLATOW, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Petitioner Dawn I. Flatow appeals from a final judgment for respondent on the merits and also from an earlier order vacating a default judgment entered against the respondent.

The pertinent facts of this case are as follows. Robert and Dawn Flatow were first married on February 11, 1972. Prior to this marriage Robert purchased a home in Chicago with funds which the trial court found were furnished by his mother, Rose Flatow. In April of 1972, Robert assigned 50% of the beneficial interest in this property to Dawn. On November 21, 1974, a judgment of annulment was granted to Robert on grounds of bigamy. A previous marriage of Dawn's had not been dissolved at the time the parties were married. The two were remarried approximately six months later. On December 8, 1977, Dawn filed a petition for dissolution of the second marriage and on March 22, 1978, obtained a default judgment for dissolution of marriage. The ex-parte judgment directed Robert to assign his interest in the property to Dawn. According to Robert he first received notice of the proceedings on May 23, 1978, when he received the notice of motion requesting that he assign the house to Dawn. It was at this time that Robert hired an attorney who filed a petition to vacate the default judgment for dissolution of marriage.

On June 19, 1978, Judge Reuben J. Liffshin, who had entered the default judgment for dissolution of marriage, entered an order vacating the judgment and giving Robert leave to file his answer to Dawn's petition. A few days later this order of Judge Liffshin was vacated by agreement of the parties, and Dawn was given leave to file a response to Robert's petition to vacate the default judgment. On July 13, 1978, Dawn filed a petition praying for a change of venue from Judge Liffshin. Judge Liffshin denied her petition and set the hearing on Robert's petition to vacate for August 29, 1978. Thereafter, evidentiary hearings were held on a number of court dates. Following the hearing on October 6, 1978, Judge Liffshin vacated the default judgment as it related to the property rights of the parties and allowed the judgment for dissolution to stand and continued the matter for hearing on the disposition of property.

• 1 Dawn's first contention is that the trial court erred in granting her husband's petition for section 72 relief because he had not established grounds therefor by clear and convincing evidence. However, we find that the issue of the propriety of the trial court's order vacating petitioner's default judgment is not properly before this court. Rather than bring an immediate appeal from this order, petitioner elected to proceed to trial on the merits. By so doing, she has waived any right to challenge the order on appeal. Supreme Court Rule 304(b)(3) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(b)(3)) provides in pertinent part:

"The following judgments and orders are appealable without the finding required for appeals under Paragraph (a) of this rule:

(3) A judgment or order granting or denying any of the relief prayed in a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. ch. 110, ¶ 72)."

• 2, 3 An order or judgment from which an appeal might have been taken is not reviewable on appeal from a subsequent order entered in the same cause. (Harty v. Kirby (1975), 26 Ill. App.3d 688, 325 N.E.2d 406; see also Rone v. Boncar Construction Co. (1976), 45 Ill. App.3d 1, 358 N.E.2d 1315.) Where a final order has been vacated pursuant to a section 72 petition, and the parties go to trial, the party whose judgment was vacated, having failed to prosecute an appeal, is precluded, after the subsequent trial and judgment, from making a collateral attack on the order vacating the first judgment. (Johnson v. Coleman (1977), 47 Ill. App.3d 671, 365 N.E.2d 102; Halter v. Schoreck (1966), 69 Ill. App.2d 104, 216 N.E.2d 278.) Petitioner, by choosing not to take timely appeal from the order vacating the default judgment which had been previously entered in her favor, has in effect waived her right to appeal from that order. (Johnson; Holt v. Holt (1979), 71 Ill. App.3d 87, 388 N.E.2d 1353.) Therefore, this court now lacks jurisdiction to consider the matter. Goldstick v. Saporito (1974), 22 Ill. App.3d 621, 317 N.E.2d 774.

• 4 Dawn also contends Judge Liffshin erred in denying her petition for change of venue. Pertinent statutory provisions regarding change of venue in civil cases (Ill. Rev. Stat. 1979, ch. 110, pars. 501, 503) read as follows:

"§ 1. A change of venue in any civil action may be had in the following situations:

(2) where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because * * * the judge is prejudiced against him * * *."

"§ 3. * * * A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case * * *."

Dawn's petition alleged that Judge Liffshin was prejudiced against her. It was filed before the commencement of the hearing on Robert's section 72 petition to vacate. The right to change of venue on account of alleged prejudice of the trial judge is absolute if the requirements of the statute are met. (Fennema v. Joyce (1972), 6 Ill. App.3d 108, 285 N.E.2d 156.) Judge Liffshin summarily denied Dawn's petition on the ground that he had already ruled on substantive matters and that her petition came too late. This Dawn claims was error requiring reversal. In response it is argued on behalf of Robert that the provisions relating to change of venue in civil cases do not apply to proceedings under section 72, citing the case of Kilbride v. Kilbride (1965), 64 Ill. App.2d 355, 212 N.E.2d 252. In Kilbride the court ruled that the trial court committed no error in denying defendant's motion for change of venue with reference to that portion of defendant's petition which asked that the original decree of divorce be vacated. Here the trial judge also proceeded to hearing on Robert's section 72 petition and vacated the portion of the original decree bearing on property rights. We find no error in this procedure.

On the property disposition issues Judge Rene Goier entered a supplemental judgment for dissolution of marriage which in reference to the ...


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