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10/06/87 In Re Marriage of David Van Zuidam

October 6, 1987

IN RE MARRIAGE OF DAVID VAN ZUIDAM, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

and PAMELA VAN ZUIDAM, Respondent-Appellant

516 N.E.2d 331, 162 Ill. App. 3d 942, 114 Ill. Dec. 176 1987.IL.1505

Appeal from the Circuit Court of Cook County; the Hon. Herman Knell, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

The wife appeals from an order denying her emergency motion to stay entry of the judgment of dissolution and the entry of that judgment for dissolution of marriage.

On February 5, 1986, approximately 4 1/2 years after the parties were married, the petitioner (hereinafter husband) filed a petition for dissolution of marriage. At that time, the husband was 32 years old and the respondent (hereinafter wife) was 30 years old. The wife earned $33,000 per year and her husband earned $30,000 per year. They had no children. Both parties were represented by counsel. A negotiated property settlement agreement (hereinafter agreement) was executed in separate counterparts on June 12, 1986. Mental cruelty was alleged in the petition as the ground for dissolution. However, the parties agreed that the husband should proceed on the basis of irreconcilable differences under the "no fault" amendment to the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1985, ch. 40, par. 401(a)(2).) A condition for "no fault" dissolution is that the parties lived separate and apart for a continuous period in excess of two years. This requirement may be waived upon the written stipulation of both spouses provided they lived separate and apart for a continuous period of not less than six months prior to the entry of the judgment of dissolution.

The matter was set for prove up before the Honorable Herman Knell on June 12, 1986. At that time, the parties lived separate and apart for more than six months, but less than two years. The husband appeared with counsel. The wife was not present in open court but was represented by counsel. Counsel for the parties stipulated in open court that the petition be amended on its face to withdraw mental cruelty and substitute irreconcilable differences as the basis for the dissolution. Since the parties lived separate and apart for only six months, the trial court relied on the representation of counsel that the parties waived the statutory two-year period for "no fault." However, the trial court instructed counsel to present a written stipulation signed by the parties and counsel when the judgment of dissolution was presented. After hearing the testimony of the husband and reviewing the property settlement agreement dated June 12, 1986, executed in separate counterparts by the parties, the court found that grounds for dissolution of the marriage were proved; that the property settlement agreement shall be made a part of the judgment; and requested that the parties sign the judgment and stipulation, which would be presented to the court with a transcript of the proceedings. The record also reveals that the parties had already partially performed their agreement when the husband testified: "Q. You and your wife have already divided up the bank accounts, is that correct? A. Yes."

On or about August 1, 1986, in compliance with the trial court's direction, the parties and their attorneys signed and delivered the judgment of dissolution incorporating the signed agreement, the stipulation waiving the statutory period for "no fault," and a certified copy of the transcript of proceedings at the prove up. However, Judge Knell was on vacation so he was not able to enter the judgment on that date.

The husband purchased an Illinois lottery ticket with his funds on August 12, 1986. On the following day, his numbers were picked. He won $2.1 million. The wife was not aware of the lottery winnings until she read a news account on August 26, 1986. On August 27, 1986, she filed an emergency motion to stay the entry of judgment, to which the husband responded. After considering the legal memoranda filed by the parties and holding a hearing on September 29, 1986, the trial court denied the wife's motion and entered the judgment of dissolution incorporating the property settlement agreement dated June 12, 1986.

On appeal, the wife contends that the trial court committed reversible error by: (1) denying her emergency motion to stay the entry of the judgment of dissolution; and (2) entering the judgment of dissolution of the marriage incorporating the agreement. I

There is no material dispute of the essential facts. In order to place the issues in proper perspective, it is necessary to trace the evolution of the applicable legal principles.

With the repeal of the Divorce Act and enactment of the Illinois Marriage and Dissolution of Marriage Act (hereinafter IMDMA) in 1977 (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.), Illinois joined the national trend toward adoption of the Uniform Marriage and Divorce Act (9A U.L.A. sec. 101 et seq. (1987)), which was designed "to reduce the adversary trappings of marital dissolution" (9A U.L.A. sec. 306, Comment, at 217 (1987)). Some of the express purposes of the IMDMA are to "promote the amicable settlement of disputes that have arisen between parties to a marriage" (Ill. Rev. Stat. 1985, ch. 40, par. 102(3)) and to "eliminate the consideration of marital misconduct in the adjudication of rights and duties incident to the legal ...


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