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March 18, 1994


Appeal from Circuit Court of Menard County. No. 91D68. Honorable M. Carol Pope, Judge Presiding.

As Corrected March 22, 1994. Petition for Rehearing Denied and Released for Publication April 20, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable Robert J. Cook, J., Concurring, Honorable Robert J. Steigmann, J., Dissenting

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

This is an appeal from a dismissal for untimeliness of respondent's post-trial motion for reconsideration filed pursuant to a judgment of dissolution of marriage. Necessarily, the question of the timeliness of the post-trial motion affects the jurisdiction of this court to entertain this appeal pursuant to Supreme Court Rule 303 (134 Ill. 2d R. 303). If the post-trial motion was untimely, the appeal taken from the court's order of dismissal was also untimely.

On December 8, 1992, the circuit court of Menard County entered a memorandum order respecting custody, child support, and property division in the proceeding for dissolution of the marriage of the parties. The memorandum awarded custody of the minor children to petitioner and set visitation for the husband, stating, "A specific schedule of holiday visitation." The order directed that petitioner's counsel prepare a formal judgment of dissolution, including a specific schedule of holiday visitation.

On February 8, 1993, in conformance with a draft order prepared by petitioner's counsel, the court entered a judgment of dissolution awarding petitioner custody of the minor children and providing, inter alia, for respondent to have holiday visitation on Easter, Independence Day, and Thanksgiving Day in odd-numbered years and on Memorial Day, Labor Day, and Christmas Day in even-numbered years, as well as alternate weekend visitation and two weeks' visitation during the summer. The judgment also provided for the division of marital property and debts, child support, and payment of past and future medical expenses of the children.

Respondent contends he did not receive a copy of the proposed judgment until February 8, 1993, the date it was entered, although he agrees petitioner's counsel mailed the judgment to him under a cover letter dated February 4, 1993. This letter is not filed of record. According to respondent, this letter advised that any problems with the language of the judgment should be called to the trial Judge's attention. On February 8, 1993, respondent's counsel asserts he mailed a letter to the court requesting inclusion of a provision in the judgment for visitation with the children on Christmas Eve in odd-numbered years. Again, this letter is not filed of record, although the court acknowledged receipt of correspondence from respondent's counsel concerning Christmas Eve visitation.

On March 3, 1993, at a hearing in a different case when both counsel were present, the court raised the matter of the correspondence from respondent's counsel. Petitioner's counsel indicated he had no objection to including visitation on Christmas Eve in odd-numbered years. That same day, an amended order was entered. This order did not restate the content of the February 8 judgment, but provided only:

"During odd numbered years, the [respondent] shall be allowed to visit with the minor children on Christmas Eve from 9:00 a.m. to 7:00 p.m.; during even numbered years, the [petitioner] shall retain custody of the minor children on Christmas Eve."

This inclusion was not inconsistent with any provision of the judgment.

On March 29, 1993, respondent filed a motion for reconsideration of the judgment of dissolution entered February 8, 1993, and the amended order of March 3, 1993. The petition sought reconsideration of custody, valuation and distribution of the Divernon residence, allocation of respondent's workers' compensation benefits and distribution of the major assets of the parties. The motion did not request any relief respecting the amended order. Following a hearing, the court dismissed the motion, finding it was not timely filed within 30 days of the judgment pursuant to section 2-1203 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2-1203). The court found that the judgment of February 8, 1993, was a final order which disposed of all the issues before the court and the amended order of March 3, 1993, was an agreed-upon accommodation to respondent and not the result of an inadvertent omission or oversight in the February 8, 1993, judgment. The court also noted the amended order did not result from any post-trial motion filed by respondent and did not affect the finality of the February 8, 1993, judgment.

When the judgment was entered February 8, 1993, there was a final appealable order. ( In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, 70 Ill. Dec. 263.) The judgment disposed of all issues as directed by the trial court in its memorandum order of December 8, 1992. Either party to the proceeding could attack the February 8 judgment by appealing or filing a post-trial motion. The record is silent as to any pleading being filed until respondent filed a motion for reconsideration March 29, 1993.

Section 2-1203 of the Code provides for motions after judgment in nonjury cases. The trial court determined section 2-1203 was not complied with. That issue is before this court. This court, however, also considers the provisions of Supreme Court Rule 303 in determining the timeliness of the appeal. Supreme Court Rule 303(a)(1) (134 Ill. 2d R. 303(a)(1)) requires in part that "a timely post-trial motion directed against the judgment" be filed in order to extend the 30-day period for filing an appeal. No pleading of any ...

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