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04/14/94 MARRIAGE CINDY L. FLORENCE

April 14, 1994

IN RE: THE MARRIAGE OF CINDY L. FLORENCE, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND DOUGLAS L. FLORENCE, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


Appeal from Circuit Court of Menard County. No. 86D49. Honorable M. Carol Pope, Judge Presiding.

Petition for Rehearing Denied May 16, 1994. As Corrected May 9, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable Robert W. Cook, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

This appeal and cross-appeal involve post-dissolution of marriage proceedings between petitioner Cindy L. Florence and respondent Douglas L. Florence. On appeal, respondent raises seven issues, to wit: (1) whether the support payment provision in the judgment of dissolution was void; (2) whether the order to pay $250 toward the purchase of a clarinet for the parties' minor child was an abuse of discretion; (3) whether the trial court erred in ordering the payment of supplemental child support back to March 13, 1992, when petitioner had not filed a petition for modification of child support until January 15, 1993; (4) whether the trial court erred by failing to consider the amount of dependent and individual health and hospitalization insurance premiums paid by respondent in finding respondent's net income for child support purposes; (5) whether the trial court erred by not awarding respondent sanctions for discovery abuses; (6) whether the award of attorney fees was erroneous; and (7) whether a notice of appeal filed by respondent on November 16, 1992, was premature. In her cross-appeal, petitioner argues respondent should have been ordered to pay all of her attorney fees. We affirm. Only those facts necessary to an understanding of this court's decision will be summarized in this Disposition.

The circuit court of Menard County dissolved the marriage of the parties in a judgment filed December 18, 1986. Respondent did not appear in court at that time and was defaulted. The judgment incorporated by reference an agreement between the parties. The relevant portion of the agreement related to the child support respondent was to pay on behalf of the parties' minor child Wendy. At the time of the dissolution of marriage, Wendy was four years old. As to child support, the agreement provided as follows:

"That [respondent] will pay through the Clerk of the Circuit Court of Menard County, Illinois, the sum of $50.00 per week per child as and for child support and will provide medical insurance on behalf of said minor child. That any medical, dental, optical, pharmaceutical, doctor, hospital or other related medical or orthodontist expenses incurred on behalf of said minor child which are not paid by medical insurance is to be paid one-half (1/2) by [Petitioner] and one-half (1/2) by [Respondent]. That [Respondent] further agrees to pay to [Petitioner] as, and for child support, twenty per cent (20%) of any increase which he has in his wages, salary or earnings that occurs after November 1, 1986."

No appeal was taken from the judgment of dissolution.

The proceedings which led to this appeal began on March 30, 1992, when petitioner filed a petition for an order declaring respondent to be in indirect, civil contempt by having unilaterally reduced the amount of child support to $50 on or about March 16, 1992, after having complied with the original judgment until that time. The parties filed several additional pleadings which will be discussed later, as necessary. Eventually, on July 29 and 30, 1993, the trial court entered two orders. Because the trial court was uncertain as to whether the child support provision in the judgment of dissolution was void or merely erroneous, the trial court vacated an earlier order finding respondent in contempt. Petitioner was ordered to pay (1) $1,012 for past-due child support for the period from March 13, 1992, through January 14, 1993 ($23 per week for 44 weeks); (2) $812 for past-due child support for the period from January 14, 1993, through July 30, 1993 ($29 per week for 28 weeks); and (3) $79 per week after July 30, 1993. Respondent was denied a Federal income-tax exemption for the payment of support on behalf of Wendy and was ordered to pay $1,000 of petitioner's attorney fees. Respondent was also ordered to pay $250 toward the purchase of Wendy's clarinet, less any payments he had specifically made for that purpose.

Respondent first argues this court erred in dismissing an earlier appeal as premature. The notice of appeal was filed November 16, 1992. This court dismissed the appeal as premature. If respondent thought the order dismissing the appeal was erroneous, he should have appealed that order. The issue is not properly before this court in this appeal.

Respondent next contends the child support provision of the original judgment was void. Referring to section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(5)), the trial court's order found that the amendment of section 505, effective in September 1985, invalidated the percentage provision relating to child support in the judgment. Effective September 23, 1985, Public Act 84-888 amended the Act by adding the requirement that a final order providing for the payment of child support must state the support level in a dollar amount and incorporated that provision into section 505(a)(5) of the Act. (Pub. Act 84-888, § 2, eff. Sept. 23, 1985 (1985 Ill. Laws 5641, 5649).) Even before the amendment, this court questioned the appropriateness of a child support order which did not set the dollar amount level of support. ( In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 1082, 519 N.E.2d 1147, 1151, 116 Ill. Dec. 932, citing In re Marriage of Uphoff (1982), 110 Ill. App. 3d 608, 612, 442 N.E.2d 965, 967, 66 Ill. Dec. 404.) At the time the trial court entered the judgment of dissolution in this case, the statute did not authorize the entry of such an order. In In re Marriage of Fahy (1991), 208 Ill. App. 3d 677, 696-98, 567 N.E.2d 552, 563-65, 153 Ill. Dec. 594, the court suggested that the portion of the child support provision stated in a percentage of income may be deemed void, but concluded that the entire child support award was erroneous for other reasons.

Ordinarily, in determining whether a judgment is void, the analysis focuses on the court's subject-matter jurisdiction and the jurisdiction over the parties, and even if the trial court misconstrues or misapplies a statute which may be said to affect its jurisdiction, if the court had subject-matter jurisdiction and jurisdiction over the parties, the trial court's judgment was not void. ( Chicago Title & Trust Co. v. Mack (1932), 347 Ill. 480, 484-85, 180 N.E. 412, 414.) A judgment is void not only when the court was without jurisdiction over the parties or the subject matter, but also when the court lacked the inherent power to make or enter the order, and such an order may be collaterally attacked. ( People v. Wade (1987), 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955, 107 Ill. Dec. 63; People ex rel. Village of Winnetka v. Dorner (1989), 181 Ill. App. 3d 25, 27, 536 N.E.2d 856, 857-58, 129 Ill. Dec. 806.) It has been stated that the circuit court has no inherent power in dissolution of marriage cases and the court's jurisdiction is conferred by statute. ( Smith v. Smith (1929), 334 Ill. 370, 379-80, 166 N.E. 85, 88; In re Marriage of Milliken (1990), 199 Ill. App. 3d 813, 817, 557 N.E.2d 591, 594, 145 Ill. Dec. 821.) However, those cases considered property distribution. No case is cited to this court which held that the circuit courts have no inherent power in the area of child custody or support.

In In re Marriage of Sheetz (1993), 254 Ill. App. 3d 695, 627 N.E.2d 154, 194 Ill. Dec. 38, the court followed the reasoning that circuit courts have no inherent powers in any area related to dissolution of marriage proceedings and concluded that a child support order based on the percentage of the noncustodial parent's income was void. The court further concluded that an express waiver of error in the dissolution proceedings included in the parties' settlement agreement did not preclude such a result since the parties cannot contract away the court's responsibility to set child support in the child's best interests. Nor could such a waiver preclude modification of the child support. Ill. Rev. Stat. 1991, ch. 40, par. 502(f).

However, in Sheetz, the court did say it was an appropriate case for the circuit court to exercise its discretion to order retroactive child support in light of the parties' acts over several years in reliance on the void order. We decline to follow Sheetz. In In re Marriage of Vernon (1993), 253 Ill. ...


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