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In Re Marriage of Savas

OPINION FILED DECEMBER 6, 1985.

IN RE MARRIAGE OF SHARON SAVAS, PETITIONER-APPELLEE, AND DEAN SAVAS, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Michael S. Jordan, Judge, presiding.

PRESIDING JUSTICE MEJDA*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS AUTHORED AND CONCURRED IN PRIOR TO THE RETIREMENT OF PRESIDING JUSTICE MEJDA FROM THE COURT.

This case, which arose from a dissolution proceeding, involves four consolidated appeals. Following the dissolution of the marriage of petitioner Sharon Savas (petitioner) and respondent Dean Savas (respondent), respondent appeals both the dissolution order and two judgments concerning attorney fees in appeal No. 83-1245. Subsequently the trial court entered both an order of protection (protection order) and an order to pay prospective attorney fees (fee order). Respondent appeals these orders in a combined appeal, appeal No. 83-2859 and appeal No. 83-2928, respectively. Finally, in appeal No. 84-2501, respondent appeals the trial court's order granting petitioner prospective attorney fees for the defense of appeal No. 83-2859. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On September 11, 1981, petitioner filed a petition for dissolution of marriage in which she alleged that respondent was guilty of extreme and repeated mental cruelty. On October 13, 1981, respondent filed his response generally denying the allegations of the petition. The case was dismissed for failure to prosecute on March 2, 1982. On March 23, 1982, however, the trial judge ordered that "* * * the order entered on March 4, 1982, [sic] dismissing this for want of prosecution be vacated."

Nevertheless, the cause was again dismissed for want of prosecution on November 1, 1982. The second dismissal was never vacated, and the cause was never formally reinstated. Nonetheless, the case was assigned for trial on November 10, 1982, without objection from either party.

On February 25, 1983, the trial court found respondent guilty of extreme and repeated mental cruelty. Consequently, the court ruled that petitioner was entitled to a dissolution of the marriage. In addition, the court granted custody of the couple's minor child to petitioner, with visitation rights for respondent. Further, the court ordered respondent to make semimonthly payments of $250 for child support and maintenance for three years and semimonthly payments of $150 for child support thereafter. Finally, the court reviewed the division of the couple's marital property previously acknowledged by both parties.

On March 8, 1983, the trial court granted respondent's present counsel, Benjamin P. Hyink & Associates, leave to substitute for respondent's previous counsel, Timpone and Rickelman. Timpone and Rickelman subsequently filed a petition requesting the court to order respondent to pay attorney fees in the amount of $4,237. On May 17, 1983, respondent filed a response, together with a counterclaim, wherein he alleged two counts of attorney malpractice against Timpone and Rickelman.

On May 20, 1983, the trial judge entered a judgment for dissolution. Further, the court ruled respondent was required to pay legal fees to petitioner's counsel, Rinella & Rinella, Ltd., in the amount of $4,725. Respondent was also required to pay the fees demanded by Timpone and Rickelman. In addition, the court dismissed respondent's malpractice counterclaim, ruling that it was not only premature, but also failed to state a cause of action.

On May 25, 1983, respondent filed a notice of appeal for cause No. 83-1245, wherein he raised the following contentions: (1) the trial court lacked jurisdiction to proceed with the cause of action following the dismissals for want of prosecution; (2) the trial court's findings concerning the existence of the marital property settlement was against the manifest weight of the evidence; (3) the trial court abused its discretion in awarding $4,237 to Timpone and Rickelman; and (4) the trial court erred in dismissing respondent's counterclaim against Timpone and Rickelman.

On October 11, 1983, petitioner appeared before the trial court and filed a petition for an order of protection against respondent. Petitioner testified that, during August and September of 1983, respondent verbally threatened her, removed a garden hose nozzle, damaged a dryer vent on the house, and ripped up flowers on the property on three occasions. Respondent denied destroying the dryer vent and ripping out the flowers. The trial judge found petitioner to be an abused person as defined by the Illinois Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301-3). Consequently, the court entered an order of protection enjoining respondent from striking, threatening or harassing petitioner, or interfering with petitioner's personal liberty. The court additionally granted petitioner exclusive possession of the marital residence, allowing respondent to enter the premises only when exercising his visitation rights. On November 30, 1983, respondent appealed the protection order in appeal No. 83-2854 contending that (1) the trial court lacked jurisdiction to adjudicate petitioner's request for the protection order and (2) the protection order was an abuse of discretion and against the manifest weight of the evidence.

Appeal No. 83-2854 was consolidated with appeal No. 83-2928 wherein respondent appealed a court order for payment of prospective attorney fees. At a hearing on December 1, 1983, both parties testified as to their respective incomes. Thereafter, the trial court found that petitioner's income was insufficient to meet her ordinary living expenses while respondent's income was equal to his present expenses. Consequently, the court ordered respondent to pay $2,800 to petitioner's counsel for the prospective defense of appeal No. 83-1245. Respondent appealed the fee order, contending that (1) the trial court lacked jurisdiction because of the unvacated orders dismissing the original cause for failure to prosecute, (2) the trial court lacked jurisdiction because it was stripped of jurisdiction when respondent filed appeal No. 83-1245 and (3) the fee order was an abuse of discretion.

Finally, respondent appeals from an order allowing prospective attorney fees for the defense of appeal No. 83-2928. On September 20, 1984, the trial judge found that the parties' circumstances and expenses had not changed since the previous fee hearing. The court, therefore, ordered respondent to pay $776 to petitioner's counsel for the prospective defense of appeal No. 83-2928. On October 15, 1984, respondent appealed this order in appeal No. 84-2501, wherein he contended that (1) the trial court lacked jurisdiction because the original appeal was not properly reinstated following the dismissal for failure to prosecute, (2) the trial court was without jurisdiction since it was stripped of jurisdiction when respondent filed the notice of appeal for appeal No. 83-1245 and (3) the order itself was an abuse of discretion.

Petitioner filed a motion to strike certain portions of respondent's initial brief in appeal No. 83-1245 for certain deficiencies. The motion was taken with the case for ruling. The motion to strike is denied.

I

OPINION

Respondent contends in all four appeals that the trial court lacked jurisdiction to adjudicate the dissolution and the subsequent orders from which he has appealed. Initially, he argues that the dismissal of March 2, 1982, was not vacated. The record discloses petitioner's notice of motion to vacate an order dismissing the cause for want of prosecution filed March 11, 1982, and stamped "$20 - Additional Fee Paid," and also an order entered March 23, 1982, that "the order entered on March 4, 1982, dismissing this cause for want of prosecution be vacated." There was no previous order of dismissal to be vacated other than the order of March 2, 1982. It is obvious that the order was to vacate any order of dismissal theretofore entered and to reinstate the cause. We find the contention technical and without merit. Pursuant to our power under Supreme Court Rule 366(a)(3) (87 Ill.2d R. 366(a)(3)) the order vacating dismissal is amended to read "March 2, 1982."

Respondent, however, further contends that even if the March 23 order was a valid reinstatement, the trial court lost jurisdiction upon the entry of the November 1, 1982, order of dismissal for failure to prosecute. The case was assigned for trial on November 10, 1982, to Judge Jordan before whom the parties thereafter participated in numerous proceedings and trial without objection. Respondent on May 17, 1983, prior to entry of the judgment of dissolution, paid a $50 fee to file his counterclaim against attorneys, Tempone and Rickelman. On May 18, 1983, in reviewing the costs expended by petitioner, it was noted that none were expended to vacate the November dismissal. The trial judge concluded that the assignment judge had vacated dismissal or had entered the dismissal in error. The trial judge stated, "So an order can be prepared to vacate that one." However, no such order appears in the record.

It is a well-established rule that when a court loses jurisdiction following an order of dismissal, the parties may, by appearing voluntarily and participating in further proceedings, revest the court with jurisdiction over their persons and the subject matter of the action. (People v. Kaeding (1983), 98 Ill.2d 237, 456 N.E.2d 11; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49, 97 N.E.2d 817. See also Brown v. Miner (1951), 408 Ill. 123, 96 N.E.2d 530; Craven v. Craven (1950), 407 Ill. 252, 95 N.E.2d 489.) The rule of revestment, or reinstatement, is a principle of law adopted by the courts. It allows the parties, by tacit consent, to regard as undone that which ought not have been done without fear that ...


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