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07/13/88 In Re Marriage of Michael D. Plymale

July 13, 1988

IN RE MARRIAGE OF MICHAEL D. PLYMALE, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and KARIN M. PLYMALE, Respondent-Appellee

526 N.E.2d 882, 172 Ill. App. 3d 455, 122 Ill. Dec. 489 1988.IL.1083

Appeal from the Circuit Court of McHenry County; the Hon. Conrad F. Floeter, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Petitioner, Michael D. Plymale, appeals from the October 8, 1987, order of the circuit court of McHenry County granting respondent Karin M. Plymale's motion to vacate, in part, a previous judgment, entered on April 27, 1984, which invalidated the parties' marriage ab initio, awarded custody of the two minor children to petitioner, and awarded the marital residence to petitioner. The circuit court determined that, the retroactive judgment of invalidity having been previously entered, the court, in that original proceeding, lacked the subject matter jurisdiction to award custody of the children or to distribute property.

The issue raised on appeal is whether the trial court properly interpreted section 304 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 304) in finding that it had lacked the subject matter jurisdiction to award custody or distribute property when it declared the marriage invalid ab initio.

On March 14, 1984, petitioner filed a petition to declare the March 20, 1981, marriage of the parties invalid alleging that respondent was still married to another person at the time of the marriage and was not divorced until May 28, 1981. Additionally, petitioner sought division of the property of the parties and custody of the two children who were born during the marriage. Respondent was personally served in the State of Kentucky and did not appear in the proceedings below. At the April 26, 1984, hearing on the petition, petitioner testified that he did not discover that respondent had not been divorced prior to their marriage until respondent informed him just prior to the petition being filed. Petitioner further testified, in relevant part, that he sought the marital residence because he and his parents made the down payment and all the subsequent payments for the home, and that he sought custody of the children subject to reasonable visitation rights. No mention was made at the hearing of whether the invalidity of the marriage would be retroactive.

On April 27, 1984, a written judgment of invalidity of the marriage was entered by Judge William F. Homer which provided that the marriage was declared void ab initio, that custody of the children be awarded to petitioner, that each party be awarded the personal property which was in his or her own name, that petitioner be awarded the marital residence, and that neither party is entitled to maintenance.

On September 18, 1987, respondent filed a motion to vacate the custody and property provisions of the judgment of invalidity of the marriage contending that, as the judgment was specifically made void a initio, the court had no subject matter jurisdiction to adjudicate custody and property rights under section 304 of the Act. Other petitions for temporary custody and for a rule to show cause were filed by the parties. On October 8, 1987, Judge Conrad F. Floeter entered an order vacating the custody and property provisions of the April 27, 1984, judgment of invalidity of the marriage. In his oral comments on his ruling, Judge Floeter indicated that, in describing the marriage as "void ab initio " in the April 27, 1984, judgment, the circuit court, Judge Homer, thereafter was deprived of subject matter jurisdiction pursuant to section 304 of the Act to adjudicate property and custody matters. Petitioner appeals from the order partially vacating the previous judgment.

On appeal, petitioner contends that the circuit court, once it acquired subject matter jurisdiction, did not lose jurisdiction by an erroneous application of the law to the facts. Petitioner also presents further arguments which would construe the language in section 304 as directory, rather than mandatory or, alternatively, if mandatory, as not depriving the circuit court of jurisdiction. Respondent essentially argues that because the circuit court recited in the judgment that the marriage was "void ab initio," there is no subject matter jurisdiction to further adjudicate property and custody rights under section 304.

Section 304 of the Act provides:

"Sec. 304. Retroactivity. Unless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive judgment on third parties, that the interests of Justice would be served by making the judgment not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of this Act relating to property rights of the spouses, maintenance, support and custody of children on dissolution of ...


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