Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

08/31/89 In Re Marriage of Bobette Tzoumas

August 31, 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

543 N.E.2d 1093, 187 Ill. App. 3d 723, 135 Ill. Dec. 525 1989.IL.1355

Appeal from the Circuit Court of Du Page County; the Hon. Michael R. Galasso and the Hon. Robert A. Cox, Judges, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Respondent, Harry Tzoumas, appeals from numerous orders of the circuit court of Du Page County denying his petition 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. Petitioner, Bobette Tzoumas, n/k/a Bobette Psarro, has not filed a brief on appeal. We proceed to address the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493 (judgment of trial court should not be reversed pro forma for appellee's failure to file brief).

We issued an opinion in this case on March 20, 1989. Respondent filed a petition for rehearing and a motion to supplement the record on appeal (107 Ill. 2d R. 329). We granted respondent leave to obtain trial court certification of the supplemental record on appeal. Respondent has obtained the trial court's certification of the supplemental record. We deny the petition for rehearing and withdraw the opinion filed in this case on March 20, 1989, and order the instant opinion to be filed.

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 --

Bobette did not respond to Harry's petition. On September 10, 1987, the trial court entered an order denying Harry's request for blood tests which Harry sought to enable him to establish his right to relief under his section 2-1401 petition. The order of September 10, 1987, did not dismiss Harry's petition to vacate the judgment. On March 16, 1988, Harry again filed a motion seeking a trial court order for blood tests to enable Harry to establish whether or not he was the father of Nick. Harry relied upon Supreme Court Rule 215(a) (107 Ill. 2d R. 215(a)), authorizing certain medical exams as part of discovery, as well as section 11 of the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2511), concerning blood tests in actions involving questions of paternity. Bobette failed to respond. Again, the trial court denied Harry's motion. On April 15, 1988, Harry filed a motion to reconsider the March 16, 1988, order of the court. 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, respondent 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 respondent 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.

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. 110, 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, 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).) In the instant case, Harry's section 2-1401 petition was dismissed on March 16, 1988. A timely motion to reconsider was filed within 30 days, on April 15, 1988. This motion was denied on May 18, 1988, and reiterated the dismissal of Harry's petition with prejudice. Within 30 days of denial of Harry's motion to reconsider dismissal, a timely notice of appeal was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.