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In Re Marriage of Cohn

OPINION FILED OCTOBER 22, 1982.

IN RE MARRIAGE OF RUTH M. COHN, APPELLEE, AND STUART A. COHN, APPELLANT.


Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. John J. Kaufman, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

The circuit court of Lake County denied a motion by petitioner, Ruth Cohn, to vacate a judgment of dissolution of her marriage to respondent, Stuart Cohn. The appellate court reversed, vacating the judgment and remanding the cause for further proceedings. (94 Ill. App.3d 732.) We granted respondent's petition for leave to appeal.

The issues raised by respondent on appeal can be condensed to two essential questions: (1) Did the trial court err in this case by entering a dissolution order while reserving property disposition, child custody, and maintenance issues for future consideration? (2) If so, did a legislative amendment, effective August 14, 1981, retroactively validate the trial court's action?

The following is a summary of facts. On May 1, 1979, Ruth Cohn filed a petition to dissolve her marriage to respondent. On May 14, after an uncontested hearing on grounds for dissolution, the trial judge made the following oral pronouncement, as indicated by the report of proceedings:

"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."

On the same day, the judge signed an order, which appears to be a standard form that included blank spaces for filling in specifics. The order (with the italicized words indicating the written-in portions) stated:

"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 in behalf of the Petitioner.

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

The docket sheet entry for May 14 provides:

"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 & support, maintenance etc. upon hearing or agreement to be brought up on notice for entry of Judgment (See Order)."

On December 12, 1979, respondent 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 date, petitioner filed a response to the motion, alleging that following the May 14 hearing she and respondent resumed cohabitation as husband and wife, that as a result she became pregnant, and that she was then six months pregnant. She also alleged that she resumed cohabitation with respondent in reliance upon his representations. She moved the court to vacate, hold for naught, and expunge the proceedings and testimony held on May 14, 1979.

After the hearing on the motion, the trial court entered the following order:

"ON MOTION * * * for respondent to enter judgment herein and the Court having considered the transcript of proceedings of May 14, 1979 and having heard the arguments of counsel and being fully advised in the premises,

It is hereby ordered that the Motion to enter the Judgment of Dissolution of Marriage is allowed.

Petitioner is allowed thirty (30) days from this date to file Petition to Vacate and supporting Memorandum of Law."

The court also signed the judgment of dissolution which had been submitted by respondent which provided ...


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