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In re Marriage of Jones

August 1, 1989


The opinion of the court was delivered by: Justice Manning.

This is the second appeal brought by respondent, Corinne Jones ("Corinne"), concerning the disposition of the marital property and the award of maintenance and attorney fees between the petitioner, William C. Jones ("William"), and Corinne, and it is yet another example of endless litigation, spanning an entire decade.

In In re Marriage of Jones (1982), 104 Ill.App.3d 490, 60 Ill.Dec. 214, 432 N.E.2d 1113, ("Jones I "), this court affirmed in part and reversed in part the trial court's judgment and remanded for further fact finding on certain issues. This court affirmed that portion of the judgment which found that the stock trust was non-marital property, that the home was marital property, and that the pension and profit sharing plan was marital property. The Jones I court reversed part of the judgment and held that Jones Medical Instrument Company Inc. ("Jones Medical") was entirely marital property, and that it was error for the court to order immediate sale of the marital home and payment of attorney fees from the proceeds of the sale. The Jones I court remanded to the circuit court for reclassification and reallocation of the parties' property and for reconsideration on the issue of maintenance for the wife.

Corinne now appeals from the supplemental judgment entered on remand contending the trial court: (1) erred in limiting the scope of discovery and admissibility of evidence to the date of the judgment of dissolution; (2) abused its discretion in its division of the marital property and its award of rehabilitative maintenance; and (3) abused its discretion by not substituting other collateral for her property award. Corinne also asserts that the provisions in the supplemental judgment were against the manifest weight of the evidence. William cross-appeals, contending that the court erred in making any award of maintenance to the wife and in disallowing evidence of Corinne's dissipation of the marital residence.

In addition to filing a cross-appeal, William has also filed a motion to dismiss Corinne's appeal, contending that her notice of appeal was not timely filed.

The parties were married in May 1955. Four children were born of this marriage. In May 1979 William filed a petition for dissolution of marriage. After an extended trial, the details of which are reported in Jones I and do not require complete reproduction here, a judgment of dissolution was entered on January 19, 1981. On February 16, 1982, this court reversed and remanded.

Thereafter, both parties began discovery proceedings of the remanded issues. Since part of the procedural history of this case is relevant to our determination, following is a chronological synopsis. Immediately after Jones I, Corinne filed a petition for temporary maintenance. On June 18, 1982, the court entered an order directing William to pay temporary maintenance to Corinne in the amount of $2,000 per month, payable in two installments on the 1st and 15th day of the month. Further, in June 1982, the trial court entered an order granting Corinne's attorneys $30,625 in fees for prosecuting the appeal in Jones I. Subsequently, by Illinois Supreme Court Rule 23 order, dated August 8, 1983, this court affirmed that decision.

On July 6, 1982, William filed a petition to close discovery which was granted by the trial court on July 21, 1982, setting the close of discovery as of October 22, 1982. On October 21, 1982, Corinne filed a motion to extend discovery at which time the trial court granted the motion and extended discovery, with no further extensions, until February 22, 1983.

In May and June of 1983, William filed his third and fourth motions for protective orders seeking to limit the scope of discovery. On June 16, 1983, the court entered another order granting William's motion and limiting discovery to those matters relevant to the valuation of property and economic circumstances as they existed on or before January 19, 1981.

On September 14, 1983, a hearing on the remand issues was held before Judge Olson. However, this matter was taken over by Presiding Judge Jorzak and then assigned to Judge Kaufman. On January 31, 1984, Presiding Judge Jorzak entered an order permitting additional discovery but limited said discovery to the issue of maintenance. This ruling was in response to Corinne's petition for rule to show cause against William for past-due maintenance and William's motion to modify the temporary maintenance order which alleged a substantial change in his circumstances.

On October 15, 1984, Judge Kaufman entered another protective order. Following these proceedings and other lengthy and protracted hearings involving over 150 motions and pleadings, i.e., Corinne filed numerous petitions for rule to show cause and for advancement of funds, which produced a voluminous record in excess of 3,000 pages, the court entered a supplemental judgment for dissolution on March 17, 1986, which is the subject of this appeal.

On April 16, 1986, Corinne filed a timely written motion to reconsider the supplemental judgment, and on May 21, 1986, William filed his response. During the hearing on the motion to reconsider on June 11, counsel for Corinne moved orally to supplement the motion with respect to that portion of paragraph A of the judgment which provided Corinne with a lien against William's stock in Jones Medical as security for her property award. This hearing was continued until June 13, 1986. The order of June 13, 1986, denied instanter Corinne's written motion to reconsider but granted William 14 days to file a written response to the oral motion. This order also granted Corinne's attorneys 20 days to file any additional fee petitions but denied them leave to file any "fee petition against William for fees incurred after the remand in 1982." On September 9, 1986, William filed his written response. On September 12, 1986, Judge Kaufman modified paragraph A of the supplemental judgment by adding one sentence: "William Jones shall give Corinne written notice of any contract for the sale of the property located at 200 Windsor Drive, Oak Brook, Illinois, during the period in which William Jones' stock is being used as security pursuant to this paragraph." Corinne filed her notice of appeal on September 26, 1986, and William filed his notice of cross-appeal on October 14, 1986.

On October 14, 1986, William simultaneously filed a motion to dismiss Corinne's notice of appeal on the ground that the notice was not timely filed in compliance with Illinois Supreme Court Rule 303. This court ordered that consideration of the motion to dismiss be taken with the case.

Since our jurisdiction generally depends upon timely filing of the notice of appeal, we first address William's contention that Corinne's notice of appeal failed to comply with the applicable statutory requirements.

William contends that this appeal should be dismissed because Corinne did not file her notice of appeal within 30 days of the June 13, 1986, court order denying instanter her motion to reconsider. He argues that each party is allowed to file only one post-trial motion, and thus the trial court lacked authority to allow Corinne to file the oral motion on June 11, 1986, almost three months after the entry of the supplemental judgment. William cites Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900 in support of his arguments.

Corinne contends that under City of Chicago v. Greene (1970), 47 Ill.2d 30, 264 N.E.2d 163, a trial court has discretionary power to allow a party to file a supplementary motion to his or her post-trial motion, and as such, the supplementary motion, if allowed by the trial court, tolls the time for filing an appeal until the court has ruled on the motion. Corinne also cites to Sears v. Sears (1981), 85 Ill.2d 253, 52 Ill.Dec. 608, 422 N.E.2d 610 in her reply brief. We agree with Corinne.

Initially, we point out that portions of the record are not crystal clear concerning the trial court's intentions regarding disposition of Corinne's post-trial motion to reconsider. However, we do believe that the court clearly expressed itself during the colloquy that took place on June 13, 1986. There, thecourt, as noted by Corinne, stated:

"THE COURT: Okay. Both firms and both people fully understand the Order is not entered and there will be no appeal filed.

MS. GORDON [William's Attorney]: That's correct.

THE COURT: Until the matter [security issue] is determined.

MS. GORDON: There is no reason not to enter the Order as to setting forth all of this.

THE COURT: You set the Order out in the manner I indicated. Where it talks of fees, he objected to that. You set the Order out so it states what I said and I'll enter it.

MS. GORDON: Fine. Thank you.

THE COURT: I do want you to understand there can be then no appealable Order until I return."

We believe it is evident from this discussion with counsel for William that the court did not and was not going to finally determine the post-trial motion on June 13, 1986, but that certain matters were to be determined later, i.e., the issue involving additional security for Corinne's property award and the question of her attorneys' request for fees. The order of June 13, 1986, itself reflects the fact that additional matters were yet to be decided, as the order provided in paragraph 2:

"The law firm of Feiwell, Galper, Lasky & Berger, Ltd. is granted twenty (20) days leave to file any additional fee petitions which they so desire pursuant to paragraph E, page 8 of the Supplemental Judgment for Dissolution of Marriage. The law firm * * * is denied leave to file a fee petition against William Jones for fees incurred after the remand in 1982 from the Appellate Court."

And in paragraph 3, the order provided:

"Counsel for William C. Jones is granted fourteen (14) days leave to file a written response to the oral motion of Corinne Jones to modify paragraph A on page 5 of the Supplemental Judgment of Dissolution so as to substitute other collateral for the payment of ONE HUNDRED SEVENTY-FOUR THOUSAND DOLLARS ($174,000.00) to Corinne Jones."

While these matters were not specifically raised in the written post-trial motion filed by Corinne, these matters were considered by the court while the original post-trial motion was pending, and the court did give Corinne leave to orally present these issues and directed William to respond to them. Thus, we believe that City of Chicago v. Greene is directly applicable to the situation presented here. As the Illinois Supreme Court stated there "[t]he issues not raised in the defendant's original post-trial motion but raised by the subsequent post-trial motions of the defendant could have been regarded as a supplement or amendment to his original post-trial motion and it was properly within the discretion of the trial court to have allowed such subsequent motions." (Greene, 47 Ill.2d at 33, 264 N.E.2d 163.) Further, in a hearing on reconsideration, the court may hear additional evidence which might be reason for change in the original order. (See In re Marriage of Stanley (1985), 133 Ill.App.3d 963, 89 Ill.Dec. 146, 479 N.E.2d 1152.) Here, the trial court, while the original post-trial motion was still pending, clearly allowed Corinne to supplement her previously filed motion by raising two additional matters. These matters were still pending following the court's June 13, 1986, order and the issue of additional security was not finally determined until the court's order of September 12, 1986, in which it modified a provision in the supplemental judgment pertaining to this issue. As to the matter regarding attorney fees, Corinne's attorneys filed their fee petition in July 1986. Moreover, we view the case relied upon by William to be readily distinguishable from the present case. In Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900, the operative orders appealed there had become final and appealable long before the appellant filed his motion to vacate, which he had claimed somehow rendered the original orders interlocutory. In this case, the original post-trial motion was still pending at the time the trial court allowed the appellant to supplement her original request. Therefore, the supplement was clearly not in the nature of a successive post-trial motion. Sears v. Sears (1981), 85 Ill.2d 253, 52 Ill.Dec. 608, 422 N.E.2d 610. In Sears, a second post-trial motion and not a supplementary or amendatory motion was filed, and it was filed only after the first post-trial motion had been denied and after the time for filing a post-trial motion had expired.

Consequently, we find that the trial court, in a proper exercise of its discretion, allowed Corinne to orally raise the issues on June 11 and 13, 1986. This is so even though the court simultaneously entered its order denying instanter the written motion on the theory that the oral motion became a part of the written motion and was either an amendment or supplement thereto, and that once filed continued to toll the time to file the notice of appeal until the court finally disposed of the entirety of the motion. Further, until the entire post-trial motion had been determined, any notice of appeal prior to its final disposition would have been premature, and subject to dismissal on appeal. (Davidson Masonry v. J.L. Wroan & Sons Inc. (1971), 2 Ill.App.3d 524, 527, 275 N.E.2d 654.) In Davidson Masonry, the appellate court found that the notice of appeal was untimely where it was filed prior to the entry of the written order. The court there relied upon its review of the record which showed that the parties and the judge unequivocally intended that the ruling was not final. (See also In re Marriage of Uphoff (1983), 99 Ill.2d 90, 75 Ill.Dec. 432, 457 N.E.2d 426; Van Fleet v. Van Fleet (1981), 99 Ill.App.3d 225, 54 Ill.Dec. 557, 425 N.E.2d 69.)

Accordingly, William's motion to dismiss is denied.

Having concluded that this case is properly before us on appeal, we now address the other issues raised by the parties.

I. Limitation of Discovery and Admissibility of Evidence

First, we are called upon to determine whether the trial court abused its discretion when it limited the scope and admissibility of evidence to the date the judgment of dissolution was entered.

Corinne argues that the trial court abused its discretion by entering protective orders limiting the scope of discovery and the admissibility of evidence to facts in existence on or before the date of the judgment of dissolution. In particular, Corinne maintains that these limitations were contrary to the specific directives set forth in Jones I and argues that where a reviewing court reverses a judgment with specific directives on remand, these directives must be followed exactly. (Zokoych v. Spalding (1980), 84 Ill.App.3d 661, 40 Ill.Dec. 128, 405 N.E.2d 1220.) Further, Corinne maintains that by limiting the scope of evidence, the trial court acted contrarily to the mandates of sections 503 and 504 of the Illinois Marriage and Dissolution of Marriage Act (hereafter "the Act"). Ill.Rev.Stat.1985, ch. 40, pars. 503, 504.

William, on the other hand, contends that the court in Jones I did not give a specific directive but only gave a generally-worded mandate on remand, directing the trial court to conduct "a new trial consistent with (its) opinion" (Jones I 104 Ill.App.3d at 501, 60 Ill.Dec. 214, 432 N.E.2d 1113), and thus the trial court properly limited the scope of discovery and admissibility of evidence to January 19, 1981. Additionally, William argued that the trial court's decision fully complied with sections 503(d), 504(b) and 401(b) of the Act. (Ill.Rev.Stat.1985, ch. 40. pars. 503(d), 504(b), 401(b).) William maintains that Corinne's proper recourse was to file a section 510(a) petition, to show a substantial change in her circumstances, since the entry of the original judgment. (Ill.Rev.Stat.1985, ch. 40, par. 510(a).) William further argues that during the original trial, the court found that Corinne was in good health, a finding which was neither challenged by Corinne nor disturbed by the appellate court, and therefore, this finding became the law of the case and was res judicata in the retrial. Paulus v. Smith (1968), 93 Ill.App.2d 84, 235 N.E.2d 292. See also Doyle v. Schlensky (1983), 120 Ill.App.3d 807, 76 Ill.Dec. 466, 458 N.E.2d 1120.

A trial court upon remand is obligated to proceed in accordance with the reviewing court's mandate. (David v. Russo (1983), 119 Ill.App.3d 290, 74 Ill.Dec. 840, 456 N.E.2d 342.) A specific mandate must be followed precisely. An example of a specific mandate includes an order directing the trial court to enter a permanent injunction. (Spring Lake Drainage & Levee Dist. v. Stead (1914), 263 Ill. 247, 104 N.E. 1014.) However, if specific directions are not given; but the remand instructions are general in nature the trial court must examine the opinion and determine what further proceedings would be consistent with the opinion (In re Marriage of Fuggiti (1985), 130 Ill.App.3d 190, 85 Ill.Dec. 658, 474 N.E.2d 386), "and, in this regard, it may allow the introduction of new evidence if consistent with the announced legal principles." Zokoych v. Spalding (1980), 84 Ill.App.3d 661, 666, 40 Ill.Dec. 128, 405 N.E.2d 1220.

In Jones I, this court directed that (1) "[o]n remand, the trial court should make a new determination as to the value of Jones Medical Instrument Company Inc., including new appraisals, if necessary, and this amount will be considered marital property"; (2) "the court, on remand, should clarify its findings (that the adjusted book value of Jones Medical was approximately $31,000 greater than the value of the company as noted in the company's books)"; (3) "[o]n remand, it will be necessary for the court to reallocate the property of the parties"; and (4) "it will be necessary to reconsider the issue of maintenance for the wife in light of the foregoing principles." Jones I, 104 Ill.App.3d at 499-500, 60 Ill.Dec. 214, 432 N.E.2d 1113.

The court also stated there that "if sufficient marital property is found, an award of maintenance may be unnecessary. If there is not sufficient marital property, however, maintenance should be considered." Jones I 104 Ill.App.3d at 500, 60 Ill.Dec. 214, 432 N.E.2d 1113, quoting In re Marriage of Aschwanden (1980), 82 Ill.2d 31, 38, 44 Ill.Dec. 269, 411 N.E.2d 238.

We believe that this court in Jones I gave instructions that were general in nature. The remand order used language, i.e., "clarify its findings" and "new appraisals, if necessary" which was directory, rather than mandatory. Jones I in reversing the trial court held that Jones Medical was entirely marital property. Therefore, the remand mandates directed the trial court "to reallocate the parties' property" and to reconsider the issue of maintenance.

Consequently, we find that the language used in the remand order was coupled with directives that were broad to allow the trial court to exercise its discretion to the fullest extent. Thus, the trial court on remand was authorized to analyze the opinion and determine what proceedings were necessary to conform to each of the reviewing court's findings and mandates. (Zokoych v. Spalding (1980), 84 Ill.App.3d 661, 40 Ill.Dec. 128, 405 N.E.2d 1220.) We believe that the trial ...

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