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March 29, 1994


Appeal from Circuit Court of Champaign County. No. 90C341. Honorable John G. Townsend, Judge Presiding.

As Corrected April 29, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Concurring, Honorable Robert W. Cook, J., Specially Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1991, the trial court entered a default judgment dissolving the marriage of the parties, respondent, Terri Teressa Jackson, and petitioner, Ricky Wayne Jackson, Sr. In October 1991, respondent filed a motion to vacate the judgment of dissolution as to all issues except grounds. In April 1993, respondent asked that the motion be called for a June 1993 hearing. After that hearing, the trial court struck the motion under local circuit rules as untimely presented for hearing. Defendant appeals, and we affirm.


The parties married in March 1974. On March 16, 1990, petitioner filed a petition for dissolution of marriage seeking division of the marital property and joint custody of their three minor children born of the marriage. At the time he filed the petition, the marital home was located in Champaign, Illinois, but respondent also had a residence in Chicago where she was going to school. A few days after he filed the petition in Champaign County, Illinois, petitioner and the eldest child moved to Lake County, Illinois, and the two youngest children apparently joined respondent at her residence in Chicago.

Respondent was not served with summons until December 6, 1990, due in part to petitioner's pattern of ambivalence on whether to proceed with the dissolution, as well as an initial failure of service of process. Within 30 days of receipt of summons, petitioner visited respondent and suggested that they discuss reconciliation. Petitioner told respondent that if she would consider reconciliation, he would not proceed with the dissolution. Two months later, petitioner suggested that the marriage could not be reconciled with the parties living in separate residences, and they agreed that after respondent finished school in May 1991, they would move back together.

In May 1991, the parties and their three children moved to a new residence in Waukegan, Illinois. The parties' marital difficulties continued, and petitioner told respondent within a week after cohabitation resumed that he intended to proceed with the dissolution. However, they continued the marital relationship in all respects.

Around September 6, 1991, petitioner left the marital residence, stating that he was leaving town for a few days. He did not tell respondent that he planned to attend a hearing on the petition for dissolution of their marriage scheduled in Champaign County for that date. At that ex parte hearing, petitioner testified that the parties were still living together and, although respondent was unaware a hearing was scheduled, she had seen a copy of a proposed judgment of dissolution. According to petitioner, respondent expressed disagreement only with a later-deleted provision for child support, although he acknowledged that they did not specifically discuss debt and property allocation. He stated that respondent was employed at Wal-Mart earning $8 per hour, although respondent later claimed she was unemployed at the time, having worked at Wal-Mart only one day. Petitioner testified that he was earning $53,900 per year.

The court entered a judgment of dissolution and a joint-parenting order that granted petitioner residential custody of the children during the school year and granted respondent custody during summer vacation. Both parties received alternate weekend visitation when the other parent had residential custody. The court ordered the parties to consult and agree on decisions regarding the children's medical, religious, and educational needs. They were also ordered to meet, discuss, and resolve any problems involving the joint-parenting order.

The court divided the personal property and debts between the parties. The court awarded three vehicles to respondent, two of which the parties no longer owned. She also was allotted marital debts of approximately $14,000, including $7,000 owed on the 1988 Mercury Sable automobile she had been awarded, which was repossessed the following month for failure to make payments. The court awarded petitioner a 1985 Buick Century automobile and allocated debts to him of approximately $18,000. Each party was awarded any life insurance policies, bank or savings accounts, and pension benefits standing in their own name. The court denied maintenance to both parties and did not enter an order for child support.

When petitioner returned to Waukegan following the hearing, he handed respondent a copy of the judgment. According to petitioner, he told respondent that she did not have to leave the marital residence, but respondent told him that she would not live with a man to whom she was not married and moved out two weeks later. According to respondent, petitioner ordered her to leave.

In October 1991, respondent, now represented by counsel, filed a motion to vacate the default judgment and a response to the petition for dissolution. However, the motion was not set for hearing until April 1993, 18 months later. At that point, petitioner had remarried, and respondent was employed as a social worker with the Head Start program in Chicago. At the hearing held in June 1993, respondent argued that the court should grant her motion to vacate because she was denied substantial Justice as a result of the default judgment. Respondent offered no excuse for the 18-month delay in setting this motion for hearing. Petitioner argued that the circuit court rules allowed the trial court to consider any motion withdrawn if it had not been set for hearing within 90 days from the date of ...

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