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03/20/89 In Re Marriage of Bobette Tzoumas N/K/A Bobette Psarro


March 20, 1989

IN RE MARRIAGE OF BOBETTE TZOUMAS N/K/A BOBETTE PSARRO,

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, and HARRY TZOUMAS,

Respondent-Appellant

540 N.E.2d 349, 132 Ill. Dec. 609

Appeal from the Circuit Court of Du Page County, Illinois. No. 84 D 72, The Honorable Michael R. Galasso and Robert A. Cox, Judges, Presiding. 1989.IL.356

APPELLATE Judges:

JUSTICE LINDBERG, REINHARD and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Appellant, Harry Tzoumas, appeals from numerous order of the circuit court of Du Page County denying his petitions pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110 par. 2-1401) to vacate a judgment for dissolution of marriage incorporating a marital settlement agreement and the child support provisions contained therein. Appellee Bobette Tzoumas, n/k/a Bobette Psarro, has not filed a brief on appeal.

The parties were married on October 17, 1971. On January 11, 1984, Bobette instituted dissolution proceedings against Harry. At this time, the parties had no children, nor was Bobette pregnant. The parties reconciled. On February 5, 1985, Bobette gave birth to a child, Nick Tzoumas. The parties' efforts at reconciliation failed, and on January 13, 1986, the proceeding for dissolution was reinstated. On August 25, 1986, in the circuit court of Du Page County a judgment for dissolution of marriage was entered incorporating a settlement agreement which included issues of child support for the one child born of the parties marriage Nick.

On June 10, 1987, Harry filed a motion entitled "Emergency Petition for Rule to Show Cause and Other Relief." Count I of this petition involved a dispute over visitation with Nick and is not an issue on appeal. Count II of Harry's petition entitled "Petition Pursuant to Section 2-1401 of

On March 16, 1988, Harry filed a motion to reconsider the September 10, 1987, order of the trial court denying Harry's requested relief pursuant to section 2-1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401). In this motion Harry, relying on the same facts used in his June 10, 1987, petition sought to have the trial court reconsider its September 10, 1987, order and require Bobette and Nick to submit to blood tests. The motion filed on March 16, 1988, also raised in the alternative for the first time Supreme Court Rule 215(a) (107 2d R. 215(a)) and section 1 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2511) as additional authority for a trial court order for blood tests to determine Nick's parentage. The motion was denied on March 16, 1988. On April 15, 1988, Harry filed a motion to reconsider the trial court's order of March 16, 1988. This motion was denied on May 18, 1988. A notice of appeal was filed June 16, 1988, and an amended notice of appeal was filed July 15, 1988, seeking review of all the trial court orders denying Harry's attempts to obtain blood tests and to vacate the August 25, 1986, judgment for dissolution which found Nick to be a child born of the parties' marriage.

On appeal, appellant argues the trial court abused its discretion in refusing to grant the relief requested pursuant to section 2-1401 of the Code (Ill. Rev. Stat. 1987 ch. 110, Par. 2-1401). Initially, we note that appellant has failed to comply with the recent amendment to Supreme Court Rule 341, effective August 1, 1988, which requires a brief statement or explanation of the jurisdictional basis for appellate review of the trial court's order. (122 Ill. 2d R. 341(e)(4)(ii).) Additionally, an appellate court has a duty to consider its own jurisdiction and to dismiss an appeal if it determines that appellate jurisdiction is lacking. Benet Realty Corp. v. Lisle Savings & Loan Association. (1988), 175 Ill. App. 3d 227, 529 N.E.2d 718; 107 Ill. 2d R. 303.

Supreme Court Rule 304(b)(3) (107 Ill. 2d R. 304(b)(3)) makes appealable an order granting or denying relief requested pursuant to section 2-1401 of the Code (Ill. Rev. Stat. 1987 ch. 40, par. 2-1401). Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) requires that a notice of appeal be filed within 30 days of an order granting or denying relief pursuant to section 2-1401 (Ill Rev. Stat. 1987, ch. 110, par. 2-1401), unless a motion to reconsider or vacate the grant or denial of section 2-1401 relief is filed within 30 days of the court's ruling on the section 2-1401 petition. (Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358.) Where such a motion is filed within 30 days of the trial court's judgment concerning relief requested pursuant to section 2-1401, such motion is a post trial motion directed against the judgment and will extend the time to file a notice of appeal until 30 days after the order disposing of the motion is entered. (Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358; Tucker v. McNulty (1988), 173 Ill. App. 3d 722, 527 N.E.2d 953; 107 Ill. 2d R. 303(a).) However, these holdings do not change the well-established rule that successive and/or repetitious post-judgment motions (motions which do not contain new matters, or matters which could not have been raised in the first post-judgment motion) do not extend the time for appeal. Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358; Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610; Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900; Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227, 529 N.E.2d 718; People ex rel. McGaw v. Mogilles (1985), 136 Ill. App. 3d 67, 482 N.E.2d 1114.

In the instant case, we find that appellate jurisdiction is lacking. The June 10, 1987, petition of appellant raised the issue of Nick's biological parentage. This petition made pursuant to section 2-1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) was based on Bobette's alleged fraudulent concealment of the alleged fact that Harry was not Nick's biological father. Based on these facts, Harry sought to have the prior judgment for dissolution entered August 25, 1986, dealing with the parentage of Nick and child support vacated. Harry's petition was denied on September 10, 1987. Harry did not file a notice of appeal within 30 days of the trial court's ruling as required by Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)). Nor did Harry file a motion to reconsider the September 10, 1987, order within 30 days (see Ill. Rev. Stat. 1987 ch. 110, Par. 2-1203) which would have extended the time to file a notice of appeal to within 30 days of the trial court's ruling on the motion to reconsider. (107 Ill 2d R. 303(a)(1); Tucker v. McNulty (1988), 173 Ill. App. 3d 722, 527 N.E.2d 953.) Under these facts, we do not have jurisdiction to review the trial court's September 10, 1987, order denying Harry's June 10, 1987, petition pursuant to section 2-1401 of the Code (Ill. Rev. Stat. 1987 ch. 110 par. 2-1401). Additionally, we find that the trial court lacked jurisdiction to hear Harry's untimely March 16, 1988, motion and that we lack jurisdiction to entertain an appeal from the March 16, 1988, denial of that motion, or the trial court's related May 18, 1988, order denying Harry's April 15, 1988, request to reconsider the March 16, 1988, denial of relief.

CASE RESOLUTION

Appeal dismissed.

19890320

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