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05/28/87 In Re Marriage of Ginger L. Mates

May 28, 1987

IN RE MARRIAGE OF GINGER L. MATES, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and DONALD E. MATES, Respondent-Appellee

508 N.E.2d 1181, 156 Ill. App. 3d 26, 108 Ill. Dec. 604 1987.IL.698

Appeal from the Circuit Court of Lake County; the Hon. Terrence J. Brady, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Petitioner, Ginger L. Mates, appeals from the dismissal of her petition for dissolution of marriage for lack of jurisdiction.

Petitioner's petition was filed on September 2, 1986, and alleged that she was a resident of Illinois at the commencement of the action and that she had resided in Illinois for one month. On September 15, 1986, she filed a motion for temporary relief, requesting temporary custody of minor children, temporary support for herself and the minor children, and attorney fees. Respondent, Donald E. Mates, filed a motion to dismiss the action on the basis that the court did not have jurisdiction because petitioner did not satisfy the residency requirement. The court dismissed the action and denied petitioner's motion to vacate the dismissal order.

Petitioner argues on appeal that the trial court erred in dismissing her petition because section 401 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 401) allows a court to enter a judgment of dissolution if one of the spouses was a resident at the time the action was commenced and for 90 days preceding the making of the final decision. Petitioner further argues that the 90-day requirement does not prevent a court from entering the temporary relief she sought.

Respondent has not filed an appellee's brief, but the record is simple, and we can easily decide the claimed error without an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

Section 401(a) of the Illinois Marriage and Dissolution of Marriage Act states:

"The court shall enter a judgment of dissolution of marriage if at the time the action was commenced, one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding; provided, however, that a finding of residence of a party in any judgment entered under this Act from January 1, 1982 through June 30, 1982 shall satisfy the former domicile requirements of this Act; and if one of the following grounds for dissolution has been proved: . . . ." (Ill. Rev. Stat. 1985, ch. 40, par. 401(a).)

Prior to amendments, section 401(a) had the same language as section 302(a)(1) of the Uniform Marriage ...


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