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04/13/88 In Re Marriage of Dorothy Gluszek

April 13, 1988

IN RE MARRIAGE OF DOROTHY GLUSZEK, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

ANDREW GLUSZEK, Respondent-Appellant

523 N.E.2d 126, 168 Ill. App. 3d 987, 119 Ill. Dec. 658 1988.IL.519

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

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Respondent, Andrew Gluszek, appeals from those portions of a judgment for dissolution of marriage relating to the division of marital property. Andrew also appeals from an order awarding petitioner, Dorothy Gluszek, temporary maintenance and attorney fees and an order striking certain pleadings filed by Andrew and barring him from testifying at trial. On appeal, Andrew claims that (1) the trial court erred by ordering that the provision in the divorce decree for permanent maintenance be nonmodifiable; (2) the award of temporary maintenance is void for lack of personal jurisdiction; (3) the trial court abused its discretion in imposing discovery sanctions against him; (4) the trial court erred in overvaluing his business by $27,000; and (5) the trial court abused its discretion in awarding attorney fees to Dorothy's former attorney. We affirm.

The Gluszeks were married for approximately 29 years and have two children, both emancipated. At the time of the dissolution of their marriage, Andrew was 53 years old and in good general health. Andrew is employed by Chicago Rotoprint Company. Dorothy was 60 years old and had been unemployed since 1975. Dorothy is in poor health and suffers from arthritis, migraine headaches, allergies and an ulcer. Dorothy receives medical treatment for these ailments. The severity of these ailments, particularly the arthritis, prevents Dorothy from working in a factory, the only employment she is trained to do.

We initially note that the issue of whether the trial court erred by ordering that the provision for permanent maintenance be nonmodifiable has been conceded in favor of Andrew. As a result we need not address the merits of this argument.

We first examine Andrew's contention that the trial court lacked personal jurisdiction to enter an award of temporary maintenance and attorney fees in Dorothy's favor.

Our review of the record reveals that Dorothy filed an emergency petition for temporary relief on September 6, 1983. Andrew was served with notice of this motion. On the same date, the trial court entered an order granting Dorothy $150 a week in temporary maintenance and $300 in temporary attorney fees. Thereafter, Dorothy filed a petition for rule to show cause against Andrew for his failure to comply with the court order. On September 23, after Andrew was served with process, the court conducted a hearing on Dorothy's motion. Both Dorothy and Andrew appeared at the hearing and testified. At the Conclusion of the hearing, the court entered an order which required, among other things, that Andrew pay $150 per week to Dorothy as temporary maintenance.

Andrew initially argues that the court's order of September 6, 1983, was void for lack of personal jurisdiction over Andrew. Andrew further argues that the orders entered by the trial court subsequent to the September 6, 1983, order dealing with maintenance and attorney fees are likewise void for lack of personal jurisdiction.

Essential to the validity of any judgment by the trial court is the court's jurisdiction over the subject matter of the litigation and the parties to the proceeding. In the absence of a personal appearance by a named party, personal jurisdiction may only be acquired by service of process in the manner directed by statute. (Kappel v. Errera (1987), 164 Ill. App. 3d 673, 677.) Service of process may be obtained by either summons (Ill. Rev. Stat. 1985, ch. 110, pars. 2-203, 2-204, 2-205) or by publication and mailing (Ill. Rev. Stat. 1985, ch. 110, par. 2-206). Any "'judgment rendered without service of process, either by summons or by publication and mailing, where there has been neither a waiver of process nor a general appearance by the defendant, is void regardless of whether the defendant had actual knowledge of the proceedings.'" Kappel, 164 Ill. App. 3d at 677, quoting State Bank v. Thill (1986), 113 Ill. 2d 294, 308, 497 N.E.2d 1156, 1161.

In the instant case, Andrew was not served with process until after September 9, 1983. As such, Andrew is correct in his assertion that the trial court lacked jurisdiction over his person at the time the September 6, 1983, order was entered. However, on September 23, the court conducted a hearing on Andrew's refusal to comply with the court's September 9 order. At that hearing, Dorothy and Andrew appeared in court and testified concerning the issues of temporary maintenance and attorney fees. The trial court then entered an order which required Andrew to pay temporary maintenance and temporary attorney fees. As Andrew was subject to the court's jurisdiction when this order was entered, the order was not void merely because the hearing originated as a means of enforcing the September 9 order. To the contrary, once Andrew was properly before the court, the court possessed the authority to fashion any relief for Dorothy that it deemed appropriate. We, therefore, find ...


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