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In Re Marriage of Parks



Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.


Respondent, Edward Parks, appeals from an order of the circuit court of McHenry County denying his motion to vacate a judgment for dissolution of marriage. On appeal, he asserts that the judgment was void because neither party was domiciled in Illinois for the 90 days next preceding the court's findings, that the validity of the judgment was subject to attack by motion and that dismissal of the petition for dissolution of marriage was required due to the petitioner's failure to qualify as a current resident of Illinois.

The parties were married in 1969, and on February 8, 1982, the petitioner filed for dissolution of marriage in the circuit court of McHenry County. The petition gave the address of each party as 3512 First Avenue, McHenry, McHenry County, Illinois, and alleged that each had resided in Illinois more than 90 days prior to the filing of the petition. Attempts to serve respondent in both McHenry and Cook counties were unsuccessful, as the sheriff in each county was unable to locate him. Subsequently, respondent was given notice by publication of the pending proceeding. After he failed to appear, he was defaulted and on June 8, 1982, a judgment for dissolution of marriage was entered. That judgment dissolved the marriage and awarded petitioner custody of the three children.

The court deferred the issues of maintenance and child support "until personal jurisdiction of EDWARD PARKS has been obtained." No disposition was made of the parties' marital property and debts.

On May 27, 1983, respondent filed a special and limited appearance and a motion to vacate judgment and dismiss petition. The latter pleadings challenged the prior judgment as void, alleging three grounds in support: that the respondent had never been served, that the judgment failed to make the requisite finding of domicile required by law and that the petitioner was not then a resident of Illinois, therefore failing to meet "the present jurisdictional requirements." The motion was accompanied by an affidavit in which it was stated that the petitioner had left Illinois on February 20, 1982, with no intention to return, enrolling her children in school in Florida. The affidavit further stated that the petitioner had licensed her car in Florida, acquired a Florida teaching certificate, divested herself of all personal property in Illinois and informed the respondent on numerous occasions that she would not return to Illinois. As of April 1983, the petitioner's address was in Ruskin, Florida.

After a hearing, the court decided that its prior judgment was not void for want of jurisdiction and that it was not open to attack on a motion. The respondent's motion to vacate was accordingly denied.

Two issues are presented for review: (1) whether the judgment of dissolution of marriage was subject to attack by motion, and (2) whether the trial court's failure to make specific findings on the question of the parties' domicile rendered its judgment void for want of subject-matter jurisdiction.

Initially, we note that this court has jurisdiction. See Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App.3d 780; Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App.3d 581.

The respondent maintains that the court's jurisdiction to enter the judgment dissolving his marriage was a matter properly raised by motion in the trial court, even after almost a year had elapsed following its rendition. He claims that the court had authority to entertain motions in the cause since the judgment was not final and, in any event, since motions are permissible methods of attacking a judgment collaterally for lack of jurisdiction.

As to the question of finality, the supreme court has recently observed that a petition for dissolution of marriage advances only a single claim and that the various issues typically presented in such a case are merely questions ancillary to the cause of action. "Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated." (In re Marriage of Leopando (1983), 96 Ill.2d 114, 119.) Respondent claims that the judgment of June 8, 1982, was not final in view of its failure to dispose of all issues presented by the dissolution petition. He contends that it was therefore proper for him to proceed in the cause by way of motion.

• 1 In the case at bar, the trial court's reservation of questions involving the distribution of marital property, maintenance and child support resulted from its lack of personal jurisdiction over respondent and was consistent with section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 401(3)): "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." (A further portion of this section was found unconstitutional in In re Marriage of Cohn (1982), 93 Ill.2d 190, but that ruling did not affect the quoted language from section 401(3) which is here at issue.) As the supreme court pointed out in Cohn, it is appropriate for a court to enter a judgment for dissolution while reserving other issues where the court lacks in personam jurisdiction over the respondent. (93 Ill.2d 190, 199.) The trial court was thus justified in entering judgment of dissolution while reserving other questions until personal jurisdiction over the respondent had been obtained.

• 2 It has been held that judgments for dissolution reserving questions for later determination are not final appealable orders. (In re Marriage of Lentz (1980), 79 Ill.2d 400; In re Marriage of Peterson (1980), 85 Ill. App.3d 520; In re Marriage of Nilsson (1980), 81 Ill. App.3d 580.) None of those cases, unlike the one at bar, involved a situation where in personam jurisdiction over the respondent was lacking and the court had adjudicated all matters presented by the petition to the extent of its jurisdiction. In the latter situation, where all issues within the court's in rem jurisdiction have been resolved, where the law authorizes the court to reserve the remaining issues and where it is uncertain the court will ever acquire the requisite in personam jurisdiction to proceed further, we conclude that the judgment was final and appealable when rendered. Notwithstanding the teaching of Leopando, the trial court in such circumstances will have acted insofar as it legally may. The public policy against fragmentation of litigation and the fostering of piecemeal appeals will not be significantly served by denying such judgments finality. We therefore conclude that the judgment of June 8, 1982, was a final order.

• 3 Although the judgment of dissolution was final when rendered, respondent was entitled to challenge the court's jurisdiction by way of motion. A pleading attacking a judgment for lack of personal jurisdiction due to defective service is not restricted to the requirements of the provisions of the Code of Civil Procedure relating to relief from judgments (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401). (Augsburg v. Frank's Car Wash, Inc. (1982), 103 Ill. App.3d 329; LaMotte v. Constantine (1980), 92 Ill. App.3d 216.) It is immaterial whether the moving party deems himself to be proceeding under section 2-1401, for a default judgment against a party who has not been properly served and has not entered an appearance is void for want of jurisdiction. (First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App.3d 901.) Appellate authorities in Illinois have recognized that void judgments may be set aside upon motion, even if more than 30 days have expired since their rendition. (Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App.3d 581; Alexander v. Burke (1972), 6 Ill. App.3d 919.) It was therefore appropriate for the respondent to raise the question of the judgment's asserted invalidity by way of motion.

Having determined that the respondent employed a permissible procedural vehicle to attack the judgment, it must next be ascertained whether his motion to vacate was properly denied. He contends in this regard that the trial court lacked the jurisdiction originally to enter a judgment for dissolution of marriage when neither party was domiciled in Illinois for 90 days next preceding the making of findings. He further claims that since the ...

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