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In Re Marriage of Kopec

OPINION FILED MAY 27, 1982.

IN RE MARRIAGE OF BARBARA J. KOPEC, PETITIONER-APPELLEE, AND RONALD KOPEC, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. EVERETTE A. BRADEN, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Respondent, Ronald Kopec, appeals from an order denying his petition to vacate a default judgment for dissolution of marriage or for a rehearing on the issue of property division. He contends that his right to substantial justice and fundamental fairness was violated by the action of the trial court, that the trial court erred by proceeding with an ex parte hearing without additional notice to him, and that the trial court abused its discretion by denying his post-trial motion.

We affirm.

On October 25, 1979, petitioner, Barbara Kopec, filed suit for dissolution of marriage. Respondent answered but on January 22, 1980, his counsel withdrew. On February 29, 1980, a notice of motion for pretrial hearing was mailed to respondent and the case was assigned for a pretrial conference; respondent failed to appear. On July 23, 1980, a notice was mailed to respondent informing him that petitioner would appear in court on July 31, 1980, and request an immediate prove-up hearing. Again, respondent failed to appear.

At the ex parte hearing, petitioner testified that she and respondent were married on March 31, 1979, and separated on September 15, 1979. Attempted reconciliations in October 1979 and June 1980 failed. Petitioner requested $10,000 in a lump sum which represented her equity in the jointly owned marital residence. The trial court entered a default order against respondent.

On September 10, 1980, respondent filed a petition alleging that the July 31, 1980, hearing was "manifestly unfair and unconscionable," that he did not have counsel or notice, and that he had a meritorious defense. Respondent asked that the order be vacated, that the court refrain from entering a judgment for dissolution, that he be allowed to respond to the petition for dissolution, and that the case be returned to the contested trial court or, alternatively, that he be given sufficient time to prepare for trial.

At a hearing on October 10, 1980, respondent testified that he received no notices of pretrial conference or the prove-up, that he had trouble receiving his mail, and that he did not pursue the divorce litigation because he felt a reconciliation was possible.

Barbara Kopec testified that when she filed for divorce, respondent said he would carry out the proceedings forever and would never give her a divorce, and that after she moved back to the marital home in June 1980 respondent chased her out of the house and smashed her car with an ashtray. When petitioner's counsel asked whether petitioner paid any of respondent's debts, respondent's objection was sustained. The court stated that respondent had not made an issue of the fairness of the property settlement even though he alleged unfairness in the September 10, 1980 petition. The court concluded, "So apparently he has abandoned that [issue] for the purpose of this particular case." The trial court denied respondent's petition and entered judgment for dissolution of marriage on October 23, 1980.

On November 20, 1980, respondent filed a motion under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), asking the court to reconsider its judgment. On March 24, 1981, the trial court denied respondent's motion and respondent appealed.

Respondent contends his right to substantial justice and fundamental fairness was violated by the trial court's refusal to vacate the default judgment. The test for vacating a default judgment is whether substantial justice is being done between the litigants and whether, under the circumstances of the case, it is reasonable to compel the other party to go to trial on the merits. (Prenzler v. Prenzler (1977), 55 Ill. App.3d 244, 246, 370 N.E.2d 642, 644.) The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. Karaskiewicz v. Karaskiewicz (1976), 38 Ill. App.3d 509, 511, 348 N.E.2d 184, 186.

• 1 We note that respondent's first petition of September 10, 1980, did not seek to vacate a default judgment but an order of default. Judgment for dissolution of marriage was not entered until October 23, 1980. Respondent's second petition urged the trial court to reconsider its judgment. Barbara Kopec urges that the trial court had no jurisdiction to consider either of respondent's petitions because the first petition was filed over 30 days after the entry of the default order and the second merely repeated the points raised by the first. Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) provides as follows:

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable."

Petitioner's argument ignores the fact that the July 31, 1980, default order was not a final judgment. (Kazubowski v. Kazubowski (1971), 48 Ill.2d 401, 402, 270 N.E.2d 845, 846.) Therefore, we hold that the court had jurisdiction to consider respondent's first petition prior to the entry of judgment.

• 2 Respondent's second petition was filed under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. ...


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