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People Ex Rel. Valle v. Valle

OPINION FILED MARCH 29, 1983.

THE PEOPLE EX REL. CLARITA VALLE, PLAINTIFF-APPELLANT,

v.

MARIO VALLE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Marjan P. Staniec, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff Clarita Valle filed a complaint for support under the Revised Uniform Reciprocal Enforcement of Support Act (URESA). (Ill. Rev. Stat. 1979, ch. 40, par. 1201 et seq.) The complaint alleged that defendant Mario Valle was the father of plaintiff's two children and owed them a duty of support, and that defendant was in arrears in support payments. In his answer, defendant denied that he was the father of the children and that he owed them a duty of support. On January 13, 1981, an order was entered which purportedly dismissed plaintiff's complaint and which continued the matter for further proceedings. On June 2, 1981, an order was entered which again dismissed plaintiff's complaint with prejudice. Following this latter order, plaintiff filed a motion for rehearing which was denied on January 11, 1982. Plaintiff instituted this appeal on February 5, 1982.

Plaintiff and defendant were married in the Philippines on March 6, 1967. The record reveals that defendant had previously married Felisa Bactat on June 11, 1961. There is no evidence in the record that this earlier marriage was ever terminated. The record indicates that under Philippine law, bigamous marriages are void ab initio.

Two children were born into the marriage between plaintiff and defendant. They were born on April 9, 1967, and January 31, 1969.

On March 17, 1980, plaintiff instituted this action for support against defendant. On July 24, 1980, an order was entered in the circuit court of Cook County instructing the parties to submit to blood tests. Plaintiff was to bear the cost of the tests because of the court's finding that "no marriage existed between the parties." Apparently, the tests were never taken.

On January 13, 1981, an order was entered that purportedly dismissed plaintiff's cause with prejudice. That same order, however, scheduled further proceedings and granted plaintiff leave to produce evidence that defendant's first marriage had been terminated. On June 2, 1980, an order was entered which again dismissed plaintiff's complaint with prejudice due to plaintiff's failure to produce evidence that defendant's first marriage had been terminated. Plaintiff then filed a timely motion for rehearing. On January 11, 1982, plaintiff's motion was denied.

The motion for rehearing was denied because the court found that its order of January 13, 1981, was its final order and that therefore, plaintiff's motion for rehearing was untimely. The court also held that plaintiff's action should have been brought under the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351) and that under that Act, plaintiff's action was now time-barred. Following denial of her motion for rehearing on January 11, 1982, plaintiff instituted this appeal.

Plaintiff first contends that the trial court erred in ruling that its order of January 13, 1981, rather than its order of June 2, was its final order. The order of January 13 stated that:

"Now therefore, it is hereby ordered as follows:

1. That this matter and proceeding be and it is hereby dismissed with prejudice.

2. That [plaintiff] is granted leave to secure proof of an annulment of dissolution of the marriage of [defendant] and Felisa I. Bactat, on or before June 2, 1981.

3. This matter is set for status to ascertain compliance with Paragraph 2 of this Order only at 9:30 a.m. on June 2, 1981, until further notice."

Although the order purported to dismiss plaintiff's cause with prejudice, a later hearing was scheduled to allow plaintiff the opportunity to produce evidence which the trial court believed would affect its order.

• 1 If the court retains jurisdiction for future determination of matters of substantial controversy, an order is not final. (Joliet Federal Savings & Loan Association v. O'Hare International Bank (1973), 12 Ill. App.3d 1012, 1013-14, 299 N.E.2d 350.) "An order is final if `it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by decree.'" (Kulins v. Malco, Inc. (1979), 79 Ill. App.3d 982, 985, 398 N.E.2d 1144, quoting Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378.) The trial court cannot make a non-final order appealable merely ...


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