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06/16/97 MARRIAGE JOHN P. FIELDS

June 16, 1997

IN RE: THE MARRIAGE OF JOHN P. FIELDS, PETITIONER-APPELLANT, AND DORIS E. FIELDS, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Livingston County. No. 94D130. Harold J. Frobish, Judge Presiding.

Honorable James A. Knecht, J., Honorable John T. McCullough, J. - Concur: Honorable Rita B. Garman, J. - Concur. Justice Knecht delivered the opinion of the court. McCULLOUGH and Garman, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

In July 1994, petitioner John Fields filed a petition for dissolution of his marriage to respondent Doris Fields. In May 1995, the trial court granted the dissolution and entered the final judgment on remaining issues on August 5, 1996. John appeals, arguing (1) the dissolution and supplementary orders of the trial court are void because no written stipulation waiving the two-year waiting period (750 ILCS 5/401(a)(2) (West Supp. 1995)) was filed and (2) the trial court abused its discretion in ordering him to pay $1,200 per month in maintenance. We affirm.

The parties were married in 1973. Two children were born during the marriage, Carmen in 1974 and Aaron in 1976. At the time of the July 1996 hearing on all ancillary matters, Doris was 45 years old and John was 48. Both parties were in good health.

The hearing on grounds for dissolution was held in May 1995. The testimony at the hearing indicated the parties had lived apart for approximately 11 months. The trial court, after finding irreconcilable differences existed between the parties, dissolved the marriage, stating "the parties have lived separate and apart for a period of time in excess of six months."

On appeal, John now argues, for the first time, this court should strike down the dissolution and supplementary orders of the trial court as being void, since no written stipulation waiving the two-year waiting period was ever filed pursuant to the Illinois Marriage and Dissolution of Marriage Act (Act). See 750 ILCS 5/401(a)(2) (West Supp. 1995) ("If the spouses have lived separate and apart for a continuous period of not less than 6 months ***, the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses filed with the court " (emphasis added)). Relying on In re Marriage of Robinson, 225 Ill. App. 3d 1037, 588 N.E.2d 1243, 167 Ill. Dec. 1113 (1992), John argues the written waiver of section 401(a)(2) of the Act is a statutory condition precedent to the trial court's obtaining of subject-matter jurisdiction in cases brought under the Act.

In Robinson, the husband sought dissolution of his marriage, and the wife appealed the granting of dissolution. Although she did not object to the husband's oral waiver of the two-year waiting period at trial, she argued on appeal the trial court was without jurisdiction to enter the dissolution order due to the lack of a written waiver. Agreeing with the wife, the Robinson court held:

"Where a trial court is hearing matters relating to the dissolution of a marriage, it is not acting within the unlimited jurisdiction conferred on it by the constitution but, rather, is limited to that granted in the [Act]. [Citation.] In addition, case law clearly states that the [Act] is to be strictly construed. [Citation.]

*** We find that the legislature intended that a written waiver be filed before the court could obtain jurisdiction over the matter. Accordingly, since a written waiver was not filed with the court, we find that the court was without subject[-]matter jurisdiction to enter an order of dissolution." Robinson, 225 Ill. App. 3d at 1038, 588 N.E.2d at 1244.

However, both the first and fifth districts have refused to follow the third district's decision in Robinson. See In re Marriage of Yelton, 286 Ill. App. 3d 436, 442, 676 N.E.2d 993, 997, 222 Ill. Dec. 29 (1997) (refusing to find trial court lacked subject-matter jurisdiction due to allegedly insufficient evidence satisfying two-year waiting period, noting the reasoning of Robinson "has been soundly rejected"); In re Marriage of Monken, 255 Ill. App. 3d 1044, 1046, 627 N.E.2d 759, 760, 194 Ill. Dec. 422 (1994) (failure to file written stipulation waiving two-year waiting period does not render subsequent dissolution order void for want of subject-matter jurisdiction, refusing to follow Robinson); In re Marriage of Jerome, 255 Ill. App. 3d 374, 388, 625 N.E.2d 1195, 1206, 193 Ill. Dec. 74 (1994) (failure to bifurcate dissolution proceedings and hear issue of grounds first does not deprive court of subject-matter jurisdiction, refusing to follow Robinson). We agree with the Yelton, Monken, and Jerome courts and refuse to follow Robinson.

A judgment or order is void if the court that entered it lacked jurisdiction over the parties or the subject matter or if the court lacked the inherent power to make or enter the order involved. In re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806, 196 Ill. Dec. 636 (1994); People ex rel. Gibbs v. Ketchum, 284 Ill. App. 3d 70, 76, 671 N.E.2d 1149, 1152, 219 Ill. Dec. 696 (1996). Subject-matter jurisdiction "does not mean simply jurisdiction of the particular case before the court but jurisdiction of the class of cases to which the particular case before the court belongs." Jerome, 255 Ill. App. 3d at 388, 625 N.E.2d at 1206. While under earlier versions of our constitution subject-matter jurisdiction was conferred by the legislature through statutory enactments (see In re Estate of Mears, 110 Ill. App. 3d 1133, 1137, 443 N.E.2d 289, 293, 66 Ill. Dec. 606 (1982) (tracing the evolution of subject-matter jurisdiction and noting "a full progression has been made from the purely legislative concept of jurisdiction embodied in the 1818 Constitution to the plenary concept now in force under the 1970 Constitution")), circuit court jurisdiction is exclusively constitutional in origin, except in the limited area of administrative review ( In re Lawrence M., 172 Ill. 2d 523, 529, 670 N.E.2d 710, 714, 219 Ill. Dec. 32 (1996); In re M.M., 156 Ill. 2d 53, 65, 619 N.E.2d 702, 709, 189 Ill. Dec. 1 (1993)).

Yet the legislature still retains some control over the subject-matter jurisdiction of the circuit courts, albeit somewhat indirectly. Under the Illinois constitution, circuit courts have original jurisdiction in all "justiciable" matters, subject to limited exceptions not relevant here. See Ill. Const. 1970, art. VI, ยง 9; In re Marriage of Bussey, 108 Ill. 2d 286, 294, 483 N.E.2d 1229, 1233, 91 Ill. Dec. 594 (1985); In re Custody of Sexton, 84 Ill. 2d 312, 319-20, 418 N.E.2d 729, 733, 49 Ill. Dec. 709 (1981). Though the legislature has no power to limit a court's constitutional jurisdiction to hear a matter, it may, by way of statutory enactment, create a "justiciable matter." M.M., 156 Ill. 2d at 65, 619 N.E.2d at 710; Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504, 128 Ill. 2d 155, 165, 538 N.E.2d 524, 529, 131 Ill. Dec. 149 (1989). Where the legislature creates rights or duties having no counterpart in common law or equity, a justiciable matter is created. M.M., 156 Ill. 2d at 65, 619 N.E.2d at 710; Board of Education of Warren Township High School District 121, 128 Ill. 2d at 165, 538 N.E.2d at 529; Skilling v. Skilling, 104 Ill. App. 3d 213, 219, 432 N.E.2d 881, 886, 59 Ill. Dec. 937 (1982). Once a justiciable matter is created, the circuit courts obtain subject-matter jurisdiction over such matters by way of the constitution. M.M., 156 Ill. 2d at 65, 619 N.E.2d at 710. However, since the justiciable matter is statutory in origin, the legislature may impose nonwaivable conditions precedent to the courts' exercise of jurisdiction. M.M., 156 Ill. 2d at 65-66, 619 N.E.2d at 710; Mears, 110 Ill. App. 3d at 1138, 443 N.E.2d at 293 (stating "the inquiry must be whether there exists a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention"). As this court has explained, while the failure to comply with such conditions may result in what may be erroneously termed a "lack of jurisdiction," in reality the court suffers from "an inability to exercise jurisdiction because the court cannot waive the condition." Mears, 110 Ill. App. 3d at 1138, 443 N.E.2d at 293. See also People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420, 422, 644 N.E.2d 66, 68, 205 Ill. Dec. 850 (1994) ("In such a case, the legislature is not limiting or precluding the court's jurisdiction, but is merely defining the justiciable matter it has created so that certain facts must exist before a court can act in a particular case [citation], or grant the relief requested [citation]"); Skilling, 104 Ill. App. 3d at 219, 432 N.E.2d at 886.

Dissolution of marriage and collateral matters are entirely statutory in origin and nature. In re Marriage of Henry, 156 Ill. 2d 541, 544, 622 N.E.2d 803, 805, 190 Ill. Dec. 773 (1993); In re Marriage of Snyder, 269 Ill. App. 3d 848, 849, 646 N.E.2d 1263, 1264, 207 Ill. Dec. 176 (1995). When a court's power to act is set by statute, the court is governed by the rules of limited jurisdiction and must proceed within the strictures of the statute. M.M., 156 Ill. 2d at 66, 619 N.E.2d at 710. John contends (and the Robinson court found) the two-year waiting period (or the written waiver thereof) of section 401(a)(2) of the Act is a ...


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