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March 28, 1995


Appeal from the Circuit Court of De Kalb County. No. 90-DK-262. Honorable Douglas R. Engel, Judge, Presiding.

The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Petitioner, Lawrence Schlam, appeals from the trial court's order of November 23, 1993, striking as void ab initio portions of the dissolution order and the "Joint Parenting Agreement" (agreement) entered into by petitioner and respondent, Carmen Donaldson, formerly known as Carmen Schlam. The present case originated when petitioner brought a petition for a rule to show cause based on respondent's alleged refusal to allow petitioner to exercise custody rights pursuant to the agreement. In response to petitioner's petition, respondent filed a "Petition to Declare as Void Ab Initio Joint Parenting Agreement and Related Documents" (petition to declare void). Petitioner perfected his appeal on June 13, 1994.

Petitioner contends the trial court erred (1) because respondent's petition to declare void was estopped as a collateral attack upon the trial court's judgment dissolving the marriage; (2) in reversing portions of the original judgment which recognized that petitioner had standing and that the trial court had jurisdiction over respondent's minor child Lisa Marie Schlam (Lisa) under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 1992)); (3) in granting respondent's petition to declare void where respondentfailed to meet the requirements of a motion to modify custody (750 ILCS 5/610(b) (West 1992)); and (4) because granting the petition to declare void was contrary to the purposes of the Act and contrary to public policy. We reverse and remand.

On August 12, 1978, respondent gave birth to Lisa. Petitioner and respondent were married in 1984. Petitioner is not the biological father of Lisa. In a report filed on July 12, 1993, the guardian ad litem stated Lisa "expressed pleasure at knowing her biological father was Puerto Rican." We make note of this passage only because it is the sole direct reference to the biological father contained in the record. The biological father was not a party to the underlying action or the dissolution proceeding and there is no evidence of his presence in Lisa's life to date.

Throughout the course of their marriage, petitioner and respondent represented petitioner was Lisa's biological father. Petitioner alleges respondent asked petitioner not to adopt Lisa. Petitioner further alleges, however, respondent asked petitioner to present himself as Lisa's biological father. Toward this end, Lisa assumed petitioner's last name, Schlam. Petitioner told Lisa and members of his community that Lisa was his biological daughter. The trial court found that petitioner had both "acknowledged" and assumed financial responsibility for Lisa. Petitioner alleges that he maintained a "close relationship" with Lisa. Lisa believed petitioner to be her "father" from the time she first understood that concept until January 1993.

Petitioner and respondent assumed joint custody of Lisa under the agreement. Petitioner filed a "Petition for Dissolution of Marriage" (petition for dissolution) on July 20, 1990. The petition for dissolution did not cite to any section of the Act or other statute. Appearing before the trial court, respondent waived her right to obtain counsel and proceeded pro se; petitioner was represented by counsel. In paragraph six of the petition for dissolution, petitioner admitted that Lisa was not his biological child and asserted that "it is in the best interests of the parties' child that joint legal custody be awarded to the parties." (Emphasis added.) The trial court expressly found that it had jurisdiction over "the parties hereto and the subject matter hereof." Additionally, the trial court found, and both parties agreed, that it was in Lisa's best interest that joint custody be awarded. On September 15, 1990, the parties executed the agreement. The agreement was incorporated as part of the trial court's "Judgment for Dissolution of Marriage" (judgment). The parties' marriage was dissolved on October 19, 1990.

The parties abided by the agreement for approximately 27 months. According to the guardian ad litem's report, Lisa's time was divided equally between petitioner and respondent. While Lisa resided with petitioner he was responsible for all her financial needs. The judgment provided petitioner would carry Lisa on his health and hospitalization insurance. The judgment also provided petitioner was to pay $1,200 in monthly maintenance to respondent for the first 18 months following the dissolution of marriage; thereafter, petitioner was required to pay $400 in maintenance each month. Although neither the agreement nor the judgment made any provision for the payment of child support, the record establishes the parties agreed the amount of maintenance was selected to provide for Lisa's needs as well as respondent's needs.

In January 1993, petitioner was no longer allowed to exercise the custody rights granted him in the agreement. In his brief, petitioner states that in January 1993 he set off against maintenance a debt respondent owed him. Petitioner alleges the day after this setoff respondent began refusing to allow Lisa to visit him. Conversely, the guardian ad litem's report states Lisa has refused to visit petitioner following an alleged "physical confrontation" or "fight" between Lisa and petitioner in January 1993. In either case, Lisa became aware petitioner was not her biological father during this time.

The reason petitioner is no longer able to exercise custody rights pursuant to the agreement is irrelevant to whether the trial court erred in finding the agreement and portions of the judgment void ab initio. Actions allegedly occurring in 1993, whether financial dealings between petitioner and respondent or an altercation between petitioner and Lisa, could not retroactively strip the trial court of jurisdiction over the initial proceeding. At the same time, we acknowledge that financial dealings and alleged altercations involving petitioner may be relevant to what type of custody arrangement is in Lisa's best interest. The issue presented by the parties, however, is not whether changed circumstances have made modification of custody "necessary to serve the best interest of the child." (750 ILCS 5/610(b) (West 1992).) The issues are jurisdiction and standing.

Petitioner first contends the trial court erred because respondent's petition to declare void was estopped as a collateral attack upon the trial court's judgment. We disagree. In his brief, petitioner argues the doctrine of "collateral estoppel provides that [the trial court's jurisdiction], having already been addressed by a court of competent Jurisdiction, may not be relitigated in a later action between the same parties." (Emphasis added.) The operation of collateral estoppel necessarily presupposes the challenged order was entered by a court of competent jurisdiction. (See Simcox v. Simcox (1989), 131 Ill. 2d 491, 496-97, 137 Ill. Dec. 664, 546 N.E.2d 609 (stating collateral estoppel only barsthe relitigation of an issue between the same parties or their privies if the challenged order was entered by a court of competent jurisdiction).) Respondent's petition to declare void questions whether the trial court has jurisdiction to award joint custody of Lisa. Petitioner's argument, therefore, assumes the answer to respondent's petition to declare void, then uses that answer to argue respondent should not be allowed to ask the question in the first place. This is a tautology. Collateral estoppel does not prohibit a subsequent motion attacking a trial court's jurisdiction.

A court without jurisdiction has no authority to act. Subject-matter jurisdiction refers to whether a court has the power to hear the type of case before the court. ( Lemons v. Lemons (1978), 57 Ill. App. 3d 473, 476, 15 Ill. Dec. 198, 373 N.E.2d 544.) Personal jurisdiction refers to whether a court has acquired the ability to apply its subject-matter jurisdiction to an individual. ( In re Shawn B. (1991), 218 Ill. App. 3d 374, 378, 161 Ill. Dec. 142, 578 N.E.2d 269.) Orders entered by a court lacking jurisdiction are void ab initio. ( In re M.M. (1993), 156 Ill. 2d 53, 64, 189 Ill. Dec. 1, 619 N.E.2d 702.) The general rule, therefore, is questions concerning a trial court's jurisdiction may be raised collaterally or directly at any time. Robinson v. Human Rights Comm'n (1990), 201 Ill. App. 3d 722, 726, 147 Ill. Dec. 229, 559 N.E.2d 229.

Parties to a dissolution proceeding may, however, under certain circumstances, be estopped from asserting the trial court lacked either personal or subject-matter jurisdiction. It has long been held in Illinois that accepting benefits of a dissolution judgment may "estop" a party from subsequently challenging the validity of that judgment. ( Grimm v. Grimm (1922), 302 Ill. 511, 513, 135 N.E. 19; In re Marriage of Paulius (1985), 131 Ill. App. 3d 343, 347, 86 Ill. Dec. 627, 475 N.E.2d 1006 (and case cited therein); In re Marriage of Gryka (1980), 90 Ill. App. 3d 443, 446, 45 Ill. Dec. 820, 413 N.E.2d 153.) Estoppel by remarriage is distinct from traditional notions of equitable estoppel. ( In re Marriage of Paulius, 131 Ill. App. ...

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