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In Re Marriage of Rifkin

OPINION FILED MAY 2, 1983.

IN RE MARRIAGE OF MICHELE RIFKIN, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND BENNETT L. RIFKIN, RESPONDENT. — (GERARD A. FACCHINI ET AL., APPELLEES AND CROSS-APPELLANTS.)


Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 6, 1983.

The issue presented in this appeal is one of law revolving about the often difficult concept of subject matter jurisdiction. These are the pertinent facts.

The litigation commenced as a proceeding for dissolution of marriage brought by Michele Rifkin (petitioner) against Bennett L. Rifkin (respondent). Petitioner was represented by the law firm of Facchini and Minton (attorneys). A judgment for dissolution of the marriage was entered on February 20, 1981. The only provision of the judgment pertaining to the attorney fees is:

"Attorneys Fees

Husband shall pay to the wife's attorneys, the sum of Twenty-Five Hundred ($2,500.00) Dollars as and for her attorneys fees and costs incurred during the pendency of this cause."

On December 9, 1981, the attorneys filed a "petition for judgment." The petition alleged the execution of a written retainer agreement between the attorneys and petitioner. It prayed for entry of judgment in favor of the attorneys and against petitioner for the balance of fees allegedly due said attorneys in the amount of $2,981.65.

Petitioner filed a motion to strike and dismiss this petition. (Ill. Rev. Stat. 1981, ch. 110, par. 48.) This motion averred that substantially more than 30 days had elapsed between the entry of the judgment for dissolution and the filing of the petition. It averred that the petition was therefore "impermissible for jurisdictional reasons."

After a full hearing the trial court entered judgment in favor of the attorneys and against petitioner for $2,981.65, costs included. Petitioner appeals.

Petitioner's primary contention is that the trial court had no jurisdiction to hear the petition without the preservation of this issue by proper language in the judgment for dissolution. Petitioner also raises other matters such as denial of petitioner's motions for jury trial and for change of venue. The attorneys contend that the trial court had jurisdiction to hear and determine the fee issue. The attorneys also have cross-appealed on the theory that the trial court erred in denying their request for relief against petitioner under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41).

In our opinion, the dispositive issue here is jurisdiction of the trial court over the subject matter of the petition for fees. Generally stated, the attorneys contend that Article VI, section 9, of the Illinois Constitution of 1970, grants the circuit courts> of Illinois "original jurisdiction of all justiciable matters" excepting only the situations in which the Supreme Court of Illinois has "original and exclusive jurisdiction." (Ill. Const. 1970, art. VI, sec. 9.) Many cases bring out this basic definition of jurisdiction of the subject matter as vested in circuit courts>. See the cases cited in English v. English (1979), 72 Ill. App.3d 736, 741, 393 N.E.2d 18.

The attorneys cite Knudsen v. Arlington Heights Federal Savings & Loan Association (1981), 100 Ill. App.3d 1088, 427 N.E.2d 865. In Knudsen, this court held that the divorce division of the circuit court properly granted a petition to permit a withdrawal from a minor's account without the need of bringing the matter before the probate division of the circuit court. However, in In re Marriage of Kekstadt (1980), 85 Ill. App.3d 952, 955-56, 407 N.E.2d 746, this court expressly held:

"The jurisdiction of courts> of equity to hear divorce cases is conferred by statute [citation] and thus the equity courts> have no inherent power in these cases. [Citation.] Illinois statutory law requires that the final decree in a civil case is a `conclusive adjudication after the passage of 30 days from the date of its rendition.' [Citations.] Additionally, subject matter jurisdiction in divorce cases cannot be conferred even by stipulation or consent of the parties. [Citations.] Property rights created in a divorce decree become vested after 30 days, and the trial court lacks jurisdiction to modify an order affecting those rights. [Citations.]"

Following Kekstadt, in Kelly v. Kelly (1982), 105 Ill. App.3d 136, 139, 434 N.E.2d 55, appeal denied (1982), 91 Ill.2d 570, this court held that the jurisdiction of a court hearing matters concerning dissolution of a marriage is limited to that "conferred by statute." Thus, the court held that a final judgment for divorce is conclusive after the expiration of 30 days. ...


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