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In Re Marriage of Davies

OPINION FILED MARCH 25, 1982.

IN RE MARRIAGE OF BARBARA J. DAVIES, PETITIONER-APPELLANT, AND JOHN A. DAVIES, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Du Page County; the Hon. FREDERICK HEINZ, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 11, 1982.

This appeal involves the validity of a judgment for dissolution of marriage entered on October 10, 1979, and a supplemental judgment filed on February 19, 1981, but entered nunc pro tunc as of March 28, 1980, which disposed of the questions of maintenance and property rights, as affected by the death of respondent, John A. Davies, on April 8, 1980. The trial court concluded that the intervening death of the respondent, which occurred after a hearing on maintenance and property but prior to a written judgment on those issues, did not affect the judgment on the grounds for dissolution of the marriage or the property rights of the parties and entered a supplemental judgment denying all maintenance and dividing the property of the parties. Petitioner, Barbara J. Davies, has appealed, contending that: (1) the judgment for dissolution is void; (2) the trial court erred in entering the supplemental judgment for dissolution nunc pro tunc; and (3) the death of respondent vested the joint tenancy property of the parties in petitioner on the date of his death which was prior to the date when the supplemental judgment was filed.

On September 29, 1978, petitioner filed her petition for dissolution of marriage. Thereafter, an amended petition was filed, the respondent answered, an uncontested hearing on grounds was held, and a written judgment for dissolution of marriage was entered on October 10, 1979. The written judgment for dissolution reserved all of the property rights, maintenance rights, property disposition and attorney fees pending a supplemental judgment, and the cause was continued for determination of those issues to March 3, 1980. There were no children of the marriage. After a contested hearing on March 3 and 4, 1980, the trial court reserved its decision indicating it would be given by a "letter of opinion within two weeks." On April 9, 1980, a two-page letter of opinion dated March 28, 1980, was filed which made findings of fact, a division of the property rights, barred maintenance and ordered that each party pay his or her own attorney's fees. The letter concluded by stating that "[c]counsel for the petitioner is directed to prepare and present, after and upon appropriate notice, a judgment order conforming to this letter of opinion. Presentation should be on or after April 7, 1980." On April 14, 1980, respondent's attorney filed a suggestion of the death of respondent which recited the death as occurring on April 8, 1980. Subsequently, the trial court ordered respondent's counsel and the petitioner to submit briefs on the effect of the death on the proceeding. In another letter of opinion filed October 22, 1980, the trial court rendered an opinion "that the intervening death of the respondent does not affect the ruling of the court embodied in its letter of opinion dated March 28, 1980, and that the preparation, presentation and entry of the supplemental judgment in accordance with said letter of opinion was a ministerial act to be performed without further proceedings herein." Petitioner's attorney was directed to prepare and present a written supplemental judgment in conformance with the March 28, 1980, letter of opinion.

On February 19, 1981, a supplemental judgment order was filed by the court and was entered nunc pro tunc as of March 28, 1980. Also, on February 19, 1981, respondent's attorney filed a petition pursuant to section 54 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 54) for the appointment of a special administrator to complete the proceedings. On that same date the trial court appointed respondent's attorney, William E. Jeger, as special administrator "for the purpose of defending on behalf of John A. Davies, respondent, now deceased." On March 13, 1981, petitioner filed a petition requesting that the judgment for dissolution of the marriage entered on October 10, 1979, and all subsequent orders be vacated, alleging that the judgment for dissolution of marriage was void pursuant to the recent decision of this court in In re Marriage of Cohn (1981), 94 Ill. App.3d 732, 419 N.E.2d 729. Petitioner then filed another motion to vacate all orders and judgments entered on February 19, 1981. On April 15, 1982, the trial court denied the motions to vacate, and this appeal ensued.

Petitioner contends that the trial court, under the facts herein, was without authority under section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401(3)) to enter, in the absence of appropriate circumstances, a judgment of dissolution of marriage before adjudicating the other issues involved. Petitioner maintains that our decision in In re Marriage of Cohn (1981), 94 Ill. App.3d 732, 419 N.E.2d 729, appeal allowed (1981), 85 Ill.2d 564, requires that the judgment for dissolution of marriage and supplemental judgment be vacated. Respondent argues that petitioner's failure to raise this issue until March 13, 1981, constitutes a waiver of that argument and further asserts that Cohn, which was decided on April 20, 1981, is not determinative of the validity of the judgment for dissolution of marriage entered herein on October 10, 1979.

Our supreme court in In re Marriage of Lentz (1980), 79 Ill.2d 400, 403 N.E.2d 1036, considered the appealability of a judgment entered pursuant to sections 401 and 402 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 401 and 402) which dissolved the marriage and reserved the questions of maintenance and property division for future court action. The judgment therein did not contain language to the effect that there was no just reason for delaying enforcement or appeal. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) The court specifically declined to decide whether a judgment of dissolution of marriage pursuant to section 401 of the Act was a final judgment or was in fact an interlocutory judgment. (79 Ill.2d 400, 406, 403 N.E.2d 1036, 1038.) Instead, the court held that a judgment of dissolution of marriage, which reserved pending claims and lacked an express finding that there existed no just reason to delay enforcement or appeal, was not an order from which an appeal could be taken.

This court, however, in In re Marriage of Cohn (1981), 94 Ill. App.3d 732, 419 N.E.2d 729, appeal allowed (1981), 85 Ill.2d 564, was faced with the precise question of whether a judgment dissolving a marriage, but reserving property disposition, maintenance and child custody issues for future consideration, was a final judgment. Under the facts in Cohn the trial court had expressly found that there was no just reason for delaying enforcement or appeal. The relevant statutory provision at the time of the Cohn decision, section 401(3) of the Act, read as follows:

"Such judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property." (Ill. Rev. Stat. 1979, ch. 40, par. 401(3).)

In finding that the judgment of dissolution of marriage in Cohn was not a final judgment, we stated:

"Section 401(3) was derived from section 302(a)(4) of the Uniform Marriage and Divorce Act (9A Uniform Law Annotated § 302(a)(4) (1979)). Both the uniform act and the Illinois act contemplate entry of a judgment of dissolution and a reservation of questions of child custody, support, maintenance or property disposition only under appropriate circumstances. `Appropriate circumstances' would be where the court does not have in personam jurisdiction over the respondent, or inability of a party to pay child support or maintenance if so ordered, or where the court has set aside an adequate fund for child support pursuant to section 503(d) (Ill. Rev. Stat. 1979, ch. 40, par. 503(d)), or where the child or children of the parties do not reside with either parent. (Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd (1980).) This list of `appropriate circumstances' is not intended to be exclusive; however, there is no indication in those historical notes that `appropriate circumstances' may be totally absent.

The circumstances of this case do not provide the `appropriate circumstances' for dissolving the marriage before adjudicating the other issues involved. In the absence of such appropriate circumstances, the court is without authority to enter a judgment of dissolution unless the court has either `approved' an agreement between the parties as to these matters, or `considered' them to the extent it could refuse to make any award if such a result is justified or has made an allotment as the facts require. Once judgment has been entered on these matters, the court has `made provision' for them and the judgment of dissolution may be entered. Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).

While the prerequisites to a judgment of dissolution set forth in section 401(3) are mandatory, not discretionary, these provisions do not operate to limit the subject matter jurisdiction of the trial court. That is conferred by article VI, section 9 of the Illinois Constitution and the Illinois Marriage and Dissolution of Marriage Act, the latter of which in section 413(a) provides: `A judgment of dissolution of marriage * * * is final when entered, subject to the right of appeal.' Although the provisions of section 401(3) are mandatory, they do not present a jurisdictional requirement in the sense they cannot be waived (see In re Custody of Charles Sexton (1981), 84 Ill.2d 312), and petitioner did not do so in this case. Here petitioner has made timely objections; therefore, she has not waived the mandatory requirements of section 401(3)." (94 Ill. App.3d 732, 739-40, 419 N.E.2d 729.)

While we held that the provisions of section 401(3) limited the trial court's authority to enter a judgment on the grounds, we concurred with the holdings in In re Marriage of Nilsson (1980), 81 Ill. App.3d 580, 402 N.E.2d 284, on the jurisdictional issue that a judgment finding ...


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