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In Re Marriage of Popovich

OPINION FILED NOVEMBER 20, 1986.

IN RE MARRIAGE OF BERNICE L. POPOVICH, PETITIONER-APPELLEE, AND CHARLES F. POPOVICH, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Respondent appeals from the post-judgment order of the circuit court of Macoupin County which awarded maintenance to petitioner. The appeal presents what appears to be a question of first impression in this State. The judgment of dissolution contained neither a reservation of maintenance nor did it contain an express waiver of the same. The issue then becomes whether there exists in the trial court any authority to award maintenance in a post-judgment proceeding.

The facts of the case are not in dispute. Petitioner obtained a judgment of dissolution of marriage in August 1982. It was not a default case, and both parties were represented by counsel. There had apparently been extended negotiations over property settlement, visitation, child support, and other derivative matters. The parties then arrived at an agreement.

No written agreement as such appears in the record. Rather, at the hearing on property settlement, child support, and custody, petitioner's counsel stated to the court:

"Yes, your honor, basically the basics for the agreement is a property settlement, separation [sic] of property settlement agreement which I prepared some time ago which the parties were never able to completely come to accord about and it forms a nucleus agreement which they were able to reach while waiting for this case to be called."

Counsel then recited orally to the court the various provisions of the agreement. The only reference in his recital to the question of maintenance was a single sentence as follows:

"There was a question about maintenance but my client is now employed and so that is not an issue at this particular time."

The court then asked both petitioner and respondent if counsel's recital was in accordance with their respective understandings of the agreement, and both answered in the affirmative.

The written judgment order which followed incorporated counsel's recitation, but it contains no provision concerning maintenance — neither allowed, nor denied, nor waived, nor reserved. It was approved by both counsel.

About three years later in August 1985, petitioner filed a petition for modification in three counts. Two of the counts are not at issue in the instant appeal, having been settled below. The third count sought permanent periodic maintenance, alleging in pertinent part that respondent's income, assets, and earning potential greatly exceeded those of petitioner.

Respondent moved to dismiss count III at the conclusion of the hearing on the petition to modify. The argument was twofold: (1) that the court lacked jurisdiction to enter an award of maintenance, and, alternatively, (2) that petitioner failed to establish by the manifest weight of the evidence that she was entitled to maintenance. The court took the matter under advisement and requested memoranda of authority from counsel on the subject of jurisdiction. Thereafter, extensive memoranda were submitted; the court found that it did have jurisdiction, and the court entered an order for periodic permanent maintenance in favor of petitioner of $300 per month. A post-trial motion was filed by respondent and again extensive memoranda were submitted by counsel. The court denied the motion, and this appeal followed.

Respondent raises three issues on appeal: (1) the jurisdiction of the trial court; (2) failure of the petition to modify to state a cause of action under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)); and (3) manifest weight of the evidence.

The general rule is that when a judgment of dissolution has been entered and becomes final and such a judgment does not award maintenance to a wife, she may not at a subsequent time seek maintenance. An exception exists where the right to do so is afforded by statute. (See generally 27A C.J.S. Divorce sec. 231 (1959).) A specific exception exists in the Act in the case of judgments where the court lacks personal jurisdiction. (Ill. Rev. Stat. 1985, ch. 40, par. 504(a); see Larson v. Larson (1954), 2 Ill.2d 451, 118 N.E.2d 433 (interpreting a similar provision in the prior Divorce Act (Ill. Rev. Stat. 1953, ch. 40, par. 19)).) Since the instant case is not of such a nature, this provision is inapplicable but serves to indicate that maintenance is not absolutely barred under the Act in all instances.

More apropos to the disposition in the instant case is section 502 of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 502) since we are dealing with an ...


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