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In re Marriage of Jeffrey Breslow

Illinois Appellate Court


June 15, 1999

IN RE THE MARRIAGE OF JEFFREY BRESLOW, PETITIONER-APPELLEE,
v.
MARLENE BRESLOW, RESPONDENT-APPELLANT

Appeal from the Circuit Court of Cook County No. 95D00070 Honorable Daniel J. Sullivan, Judge Presiding

The opinion of the court was delivered by: Justice Gordon

Marlene Breslow appeals from a final order of dissolution of marriage entered by the Circuit Court of Cook County and from the court's subsequent nunc pro tunc amendment of that order. We find we are without jurisdiction to hear the appeal, and accordingly dismiss it.

FACTS

Jeffrey and Marlene Breslow married in February 1965. Jeffrey filed a petition for dissolution of marriage in the Circuit Court of Cook County in January 1995, and amended his petition in March 1995. In part relevant to our Disposition of this appeal, Jeffrey requested that he "be awarded and assigned his non-marital property and a just proportion of all marital property." Marlene answered the amended petition in April 1996, requesting in pertinent part that she "be awarded an equitable portion of the marital property." Among the marital property Marlene listed in her answer was "[a] business known as Breslow, Morrison and Terzian, Inc., of which Jeffrey's pro rata share of the fair market value of same is more than $6,500,000."

After a lengthy trial, the circuit court entered a written judgment of dissolution of marriage on August 6, 1996. In addition to dissolving the parties' marriage, this order resolved all issues pertaining to the dissolution, including maintenance, division of property, and attorney's fees.*fn1 In its order the court found that the following assets were part of the marital estate:

"MARITAL PROPERTY/ASSETSVALUE "BRESLOW, MORRISON, TERZIAN & ASSOCIATES (2,400,000)Brigg's Stock 1,895,500897 Dryden Lane Residence, Highland Park 525,000 540 Lake Shore Drive Residence, Chicago: 350,000 (Including art, furniture and furnishings) "181 East Lake Shore Drive Condominium, Chicago 228,000 (Contract interest) "JEFFREY's Cash 1,105,680 "MARLENE's Cash 140,000 "Life Insurance Policies 100,000 "JEFFREY's 401(k) Retirement Plan 46,100 "Park City, Utah Condominium (1/3 Interest) 15,000 "MARLENE's Investment Account 15,000" MARITAL PROPERTY AND STIPULATIONS OF THE PARTIES "Krugerrands "1995 BMW "1993 Jeep "Artwork identified in Petitioner's Exhibit #27 "Remaining art, furniture and furnishings at 897 Dryden Lane, Highland Park "Remaining art, furniture and furnishings at 540 Lake Shore Drive, Chicago "MARVIN GLASS AND ASSOCIATES LIQUIDATING TRUST" In its order the court divided the marital assets as follows: "DISTRIBUTION OF THE MARITAL ASSETS "DISTRIBUTION OF MARITAL ASSETS TO THE PETITIONER, JEFFREY: Fifty Percent (50%) of BRESLOW, MORRISON, TERZIAN & ASSOC. (1,200,000) "540 Lake Shore Drive Residence, Chicago 350,000 "181 East Lake Shore Drive Condominium "(Contract Interest)228,000 "JEFFREY's Cash 1,105,680 "Park City, Utah Condominium (1/3 Interest) 15,000 "Fifty Percent (50%) of the Krugerrands "1993 Jeep "Artwork in Petitioner's Exhibit #27, "Standing Girl with Hat" "Fifty Percent (50%) of the Remaining Artwork Documented "In Petitioner's Exhibit #27 "All remaining art, furniture and furnishings at "540 Lake Shore Drive "* Fifty Percent (50%) of MARVIN GLASS AND ASSOCIATES "LIQUIDATING TRUST "(* See Item 4, under MAINTENANCE)"

DISTRIBUTION OF THE MARITAL ASSETS TO THE RESPONDENT,MARLENE: "Fifty Percent (50%) of BRESLOW, MORRISON, "TERZIAN & ASSOC.(1,200,000) "Brigg's Stock 1,895,500 "897 Dryden Lane Residence, Highland Park 525,000 "MARLENE's Cash 140,000 "Life Insurance Policies (or cash equivalent) 100,000 "JEFFREY's 401(k) Retirement Plan 46,100 "MARLENE's Investment 15,000 "Fifty Percent (50%) of the Krugerrands "1995 BMW "Artwork in Petitioner's Exhibit #27, "Precious Moments" "Fifty Percent (50%) of the Remaining Artwork Documented "In Petitioner's Exhibit #27 "All remaining art, furniture and furnishings at "897 Dryden Lane "* Fifty Percent (50%) of MARVIN GLASS AND ASSOCIATES "LIQUIDATING TRUST "(* See Item 4, under MAINTENANCE)"

FURTHERMORE, after the division of the above articulated MARITAL ASSETS to MARLENE, pursuant to this JUDGMENT, MARLENE is due and owing the sum of Six Hundred Eighty-eight Thousand Five Hundred Forty ($688,540) Dollars, to be paid by JEFFREY to MARLENE in monthly installments of Eleven Thousand Four Hundred Seventy-Five ($11,475) Dollars per month with Nine (9%) Percent statutory interest for sixty (60) months, (five [5] years), from the entry of this JUDGMENT, such payments to commence, nunc pro tunc, from August 1, 1996. All payments are due and payable on the first of each month.

MAINTENANCE

4. Upon completion of maintenance payments, but no later than sixty (60) months (five [5] years) from August 1, 1996, JEFFREY shall immediately assign his Fifty (50%) Percent interest in MARVIN GLASS AND ASSOCIATES LIQUIDATING TRUST to MARLENE."

The court also found Jeffrey owed Marlene $61,669 for marital funds he had dissipated.

On August 15, Marlene filed a motion for rule to show cause why Jeffrey should not be held in contempt for his failure to comply with certain of the provisions of the August 6 order of the circuit court. Specifically, she requested in part that Jeffrey be held in contempt for his failure to transfer to her fifty percent of his shares of Breslow, Morrison, Terzian & Associates ("BMT"), as she alleged the August 6 order required. She also alleged Jeffrey had failed to comply with numerous other provisions of the August 6 order. On August 30, without having yet responded to Marlene's motion for rule to show cause, Jeffrey filed a motion to clarify or modify the August 6 order, alleging that certain of the circuit court's findings of fact and Conclusions of law were erroneous. The motion did not seek to modify or clarify any portion of the August 6 order regarding BMT. On September 9, the circuit court filed an order amending the August 6 order in certain respects. The September 9 order did not amend any portion of the August 6 order dealing with the BMT stock, and it denied a portion of Jeffrey's motion alleging that the requirement that he assign his interest in the Marvin Glass liquidating trust to Marlene after five years was erroneous because the parties had stipulated that they would equally divide the interest in Marvin Glass. At a hearing on the motion the court stated with respect to this latter point "I believe I have the authority to do that."

Approximately three months later, on December 2, Jeffrey filed a "Motion to Strike and Response [(to Marlene's August 15 motion for rule to show cause)]." In this motion Jeffrey alleged for the first time that the portion of Marlene's motion for rule to show cause which was based on his purported failure to transfer her the shares of BMT was groundless, because

"[n]either the Judgment nor the reconsidered Order award any 'shares' of the business, BMT, to Marlene. Neither order, therefore, directs the 'transfer' of any 'shares' by Jeffrey to Marlene. Marlene never argued for or sought, in closing argument, the award of shares. Marlene was awarded, as and for her interest in the corporation, other property of the estate, including, without limitation, a cash to balance distribution of $688,540, payable over five years."

Jeffrey noted that if he had been awarded the entire $2,400,000, the $688,540 payment he was ordered to make to Marlene would give each party exactly the same dollar amount of marital assets. He argued, therefore, that the court had awarded all of the BMT stock to him and "satisfied Marlene's interest in the business by the award of other property"-- specifically, the $688,540 cash payment. Marlene responded that (1) the language of the order was contrary to Jeffrey's interpretation, (2) it was too late to modify the order, as the "Motion to Strike and Response" had been filed more than 30 days after the final order was entered, and (3) Jeffrey should be estopped from arguing that he was not required to transfer the shares to her, as she had relied on Jeffrey's failure to contest that provision of the order in her decision not to appeal the circuit court's valuation of BMT.

In the record before us the trial court never entered a ruling on Marlene's motion for a rule to show cause. However, on January 15, 1997, the circuit court entered an order purporting to modify the August 6 order nunc pro tunc. That order, which reveals on its face that it was prepared by counsel for Jeffrey, reads in full as follows: "THIS CAUSE coming on before Judge Daniel Sullivan, Calendar 13, pursuant to order of December 19, 1996, for the expressly limited purpose of interpretation of certain language in the Judgment for Dissolution of Marriage, entered by him in this cause August 6, 1996; the Court having entered a subsequent order September 9, 1996 on Petitioner's Motion pursuant to 735 ILCS 5/2-1203; the parties being present by counsel; the court having jurisdiction over the parties and the subject matter; the Court being duly and fully advised in the premises; and the Court, having consulted the record of this cause, including without limitation its notes, memoranda and other records, does hereby find and order:

"The Court HEREBY FINDS that there is no ambiguity in the Judgment for Dissolution entered in this cause August 6, 1996 and in the September 9, 1996 order; and that, specifically, Respondent MARLENE BRESLOW was not awarded shares or an interest of any kind in Breslow, Morrison, Terzian and Associates, but offsetting property in the nature of other assets, including a cash payout, over five years."

The Court further finds that this finding is expressly a nunc pro tunc amendment of the record and so orders:

"IT IS HEREBY ORDERED that this order is entered nunc pro tunc August 6, 1996. "IT IS FURTHER ORDERED that this cause be and is herewith transferred to the post-decree calendar, Calendar 11, in its entirety, instanter."

At the January 15 hearing which occurred prior to the court entering the above order, counsel for Jeffrey quoted from an order from Judge Santiago assigning the matter to Judge Sullivan "to consider pending matters of interpretation of the judgment and supplement to the judgment."*fn2 The court in this case (Judge Sullivan) stated

"Right. We came back here last week*fn3 for me to tell you exactly what I felt that this Court should do in this particular case, albeit [sic] interpreting or enforcing or whatever on all those other court orders. "I stated that I believed it was sent to me for the limited purpose of giving my interpretation of my judgment[.] *** That's what I see us here for today. "I guess the only way to do this is obviously look back on my judgment[.] "*** "*** "*** Page 3 of the judgment, I listed at the top here, it says, 'Court finds that the marital estate consists of the following:' Now, items that I was either able to put a number on or were stipulated to I listed the best I could. I wanted to put everything under this first category, but some of them I was unable to. "*** "I gave a money value. I assigned basically a money value to Jeffrey Breslow's interest in [BMT] of 2.4 million. Now, obviously, that means I gave their expert weight--his testimony more weight, credibility than yours. That's just the way I saw it. So I value that at $2.4 million. Nothing to do with stocks or shares. I don't think the word stocks or shares are ever even mentioned in my judgment. I put it in parentheses because that's basically a value I am assigning that's really not money that's there right now. I put that in parentheses because it was going to be part of the overall division that I came up with."

The court stated that it divided the assets to which it was able to assign a value "50/50. And again, it is a little tricky because the 2.4 million isn't exactly--it's not cash on hand, it's the money value of Jeffrey's interest in [BMT]. I assigned these assets to Marlene on Page 4." The court stated that it did not assign any shares of stock to Marlene and it "wouldn't have the power to assign 50 percent of [BMT], so that was certainly out the window."

Counsel for Marlene argued that this interpretation of the August 6 order was contrary to the clear language of that order and that the reason Marlene had not appealed the court's valuation of BMT was that she believed she had been assigned fifty percent of the stock itself, which made valuation irrelevant. The court stated that "[w]e're here for the limited purpose of me interpreting the judgment. I've done that. That's it." Shortly thereafter, the following colloquy ensued:

THE COURT: "You know, the judgment was entered back in August, is that correct?" MR. MANTYNBAND: "That's correct. August 6th. And Your Honor has said the judgment is clear. Your Honor has referred to no notes--" THE COURT: "I thought it was clear on that date, Mr. Mantynband. You had within 30 days of that date to come in and--" MR. MANTYNBAND: "I thought it was clear too, Judge. 50 percent means 50 percent." THE COURT: "I am signing this order. You take the next step, sir. That's all." "***" MR. MANTYNBAND: "Your Honor, as I understand it, there was no notes, no memorandum of the clerk's register on this--" THE COURT: "That's it. Case closed. Good-bye."

Marlene filed the instant appeal on February 8, 1997, within 30 days after the court entered the purported nunc pro tunc order. She argues that the circuit court erred in its valuation of BMT and in its finding that Jeffrey had only dissipated $61,669 of marital assets. Jeffrey urges us to affirm the circuit court but argues as a threshold matter that the appeal should be dismissed for lack of jurisdiction. We find we lack jurisdiction in this case, although not solely for the reasons that Jeffrey suggests.*fn4 As shall be explained below, we find that the circuit court's order of January 15 was not a valid nunc pro tunc order, and accordingly it was void ab initio because the court was without jurisdiction to enter it. The appeal must thus be dismissed for lack of jurisdiction because the issues Marlene raises deal only with the final order, from which she did not file a timely notice of appeal.

ANALYSIS

[The following material is nonpublishable under Supreme Court Rule 23]

Initially, we note that there is a question whether the apparent continuing pendency of Marlene's motion for rule to show cause should defeat our jurisdiction in this case. The difficulty is not that the motion is a "post-trial" motion, the pendency of which would preclude the filing of an efficacious notice of appeal under Supreme Court Rule 303(a)(2) (155 Ill. 2d R. 303(a)(2)) ("a notice of appeal filed before the entry of the order disposing of the last pending post-trial motion shall have no effect"). The motion is not a post-trial motion because it does not seek one of the types of relief specified in section 2-1203 of the Code of Civil Procedure (rehearing, retrial, modification or vacation of the judgment or other similar relief) (735 ILCS 5/2-1203 (West 1994)) nor is it "directed against the judgment." See Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 461-62, 563 N.E.2d 459, 461-62 (1990) (for a motion to constitute a "post-trial motion" for purposes of Rule 303(a), it must request one or more of the types of relief specified in section 2-1203 of the Code and must be "directed against the judgment," i.e., attack the judgment originally entered).

Rather, our jurisdiction is potentially impeded if the motion for rule to show cause could be considered a claim in the dissolution action itself. If the motion for rule to show cause is a claim in the dissolution action, the trial court's August and September orders would not have disposed of all pending claims. Supreme Court Rule 304(a) provides that a final judgment as to "one or more but fewer than all" claims involved in an action may be appealed "only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 155 Ill. 2d R. 304(a). Thus since neither the August nor the September order included a written finding of no just reason for delaying enforcement or appeal,*fn5 nor did the trial court ever enter such a finding or rule on the motion for rule to show cause prior to Marlene filing her notice of appeal, the notice could be premature. See 155 Ill. 2d R. 303(a) ("the notice of appeal must be filed with the clerk of the circuit court with 30 days after the entry of the final judgment appealed from" (emphasis added)).

However, we conclude that our jurisdiction is not defeated on this basis. First, it is not clear that the motion for rule to show cause for violation of an order of the court (which is the type of contumacious conduct alleged in Marlene's motion) should be treated as a claim in the proceeding in which the order was entered. A number of cases have held with respect to contempt proceedings that "although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises." People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 172, 429 N.E.2d 483, 486 (1981); accord, Almgren v. Rush-Presbyterian-St Luke's Medical Center, 162 Ill. 2d 205, 216, 642 N.E.2d 1264, 1269 (1994); People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180, 191, 226 N.E.2d 6, 13 (1967). Under the above rule, an order finding an entity in contempt and imposing a fine or imprisonment as a sanction therefor is final and appealable because it is a final order in a separate proceeding. If this remains an accurate characterization of contempt proceedings, then the fact that the motion for rule to show cause had not been ruled on when Marlene filed her notice of appeal in this case would not impact the appealability of the August and September orders.

There are several facts which militate in favor of the opposite Conclusion. One is the language of Supreme Court Rule 304, which governs "Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding." 155 Ill. 2d R. 304. As previously noted, subsection (a) of Rule 304 provides that an appeal may be taken from a final judgment as to one or more but fewer than all parties or claims "involved in an action" only if the court makes an express written finding that there is no just reason for delaying enforcement or appeal. 155 Ill. 2d R. 304(a). Subsection (b) of the Rule lists specific "judgments and orders which are appealable without the finding required for appeals under paragraph (a)" of the Rule. 155 Ill. 2d R. 304(b).

Rule 304 was amended in December 1993, effective February 1, 1994. Until February 1994, contempt orders were not included in subsection (b). The Committee Comments to the Rule explicitly stated that

"Judgments imposing sanctions for contempt of court are not included in the listing in paragraph (b), because a contempt proceeding is 'an original special proceeding, collateral to, and independent of, the case in which the contempt arises,' and a judgment imposing a fine or sentence of imprisonment for contempt is therefore final and appealable. People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 191, 226 N.E.2d 6, 13. The judgment thus disposes of the entire independent contempt proceeding." 134 Ill. 2d R. 304, Committee Comments.

However, effective February 1, 1994, Rule 304 was amended to add a new category to subparagraph (b): "[a]n order finding a person or entity in contempt of court which imposes a monetary or other penalty." 155 Ill. 2d R. 304(b)(5). This amendment could be interpreted as a retreat from the position espoused by the previous Committee Comments. For such orders to constitute judgments or orders appealable without a special finding under Rule 304(b), it would appear logical that they also would be "final judgments that do not dispose of an entire proceeding" in accordance with the title of Rule 304. If contempt proceedings were still "original" proceedings "collateral to, and independent of" the proceeding in which the purportedly contumacious conduct occurred, there would appear to be no reason for them now to be included as orders appealable pursuant to Rule 304(b) because they would be appealable as final orders, as the original Committee Comments to Rule 304 noted.

In addition to the amendment to Rule 304(b), an inference that a motion for a rule to show cause is part of the proceeding in which the contumacious conduct occurred may be drawn by analogy to motions for sanctions pursuant to Supreme Court Rule 137. Absent a Rule 304(a) finding, no appeal may be brought from an otherwise final order while a Rule 137 motion is pending, even if that motion is made after the entry of an otherwise final order. Niccum, 182 Ill. 2d at 8, 694 N.E.2d at 564 ("There is no dispute that *** a motion for sanctions filed in the circuit court typically renders a notice of appeal from an otherwise appealable order premature"). One might contend that a motion for a rule to show cause should be treated analogously to a motion for Rule 137 sanctions because both types of motion request the court to impose a punishment for an action committed in another action.

However, notwithstanding the above, we decline to hold that the filing of a motion for a rule to show cause for failure to obey an otherwise final order in an action will render premature a notice of appeal filed before Disposition of the motion. We are aware of no cases which have made the inference we have discussed above with respect to the amendment of Supreme Court Rule 304(b), and the supreme court has never explicitly repudiated the doctrine that contempt proceedings are independent of the proceeding in which the contumacious conduct occurred.*fn6 In fact, Almgren, which reaffirmed the doctrine, was decided in May 1994 (as modified on denial of rehearing in November 1994), well after the amendment to Rule 304(b) took effect. Also, the Committee Comments to the amendment state that the change "reflects current practice," citing Scott. 155 Ill. 2d R. 304, Committee Comments. The inference is also weakened by the fact that other sections of Rule 304(b), e.g., Rule 304(b)(3), deal with orders entered in separate causes of action. See Elg v. Whittington, 119 Ill. 2d 344, 355, 518 N.E.2d 1232, 1237 (1987) ("section 2-1401 actions are not simply continuations of previous actions but new causes of action").

Also, the cases which have held that a post-judgment motion for sanctions is a claim in the case in which the conduct occurred based that result on explicit statutory language that any such motion was to be treated as "'part of the civil action in which the [sanctionable conduct occurred], and no violation or alleged violation of this Section shall give rise to a separate cause of action.'" See Marsh, 138 Ill. 2d at 467-68, 563 N.E.2d at 464 (quoting section 2-611 of the Civil Practice Law (Ill.Rev.Stat. 1987, ch. 110, par. 2-611), which was subsequently superseded by Supreme Court Rule 137). Marsh noted with apparent approval cases which predated the addition of the statutory language in question which had held that a motion for sanctions filed after a final order would not preclude appealability of the final order. See Marsh, 138 Ill. 2d at 465-67, 563 N.E.2d at 463-64, citing Withall v. Capitol Federal Savings of America, 164 Ill. App. 3d 851, 518 N.E.2d 328 (1987), and Hise v. Hull, 116 Ill. App. 3d 681, 452 N.E.2d 372 (1983). Because there is no explicit statutory language of which we are aware to the effect that a contempt proceeding is part of the action in which the purportedly contumacious conduct occurred, the cases holding that motions for sanctions are part of the underlying case are distinguishable from cases involving motions for rules to show cause.

In addition, even assuming arguendo that the amendment to Rule 304(b) has made contempt proceedings a part of the proceedings in which the contumacious conduct occurred, the very fact that contempt orders imposing sanctions of fines or imprisonment are appealable pursuant to Rule 304(b) suggests that the pendency of a contempt proceeding should not preclude the appealability of an otherwise final order in the case. Orders which are appealable pursuant to Rule 304(b) must be appealed within 30 days of their entry. Liquidation of MedCare HMO, Inc., 294 Ill. App. 3d 42, 46, 689 N.E.2d 374, 377 (1997); In re Estate of Thorp, 282 Ill. App. 3d 612, 616, 669 N.E.2d 359, 362 (1996); In re Estate of Devey, 239 Ill. App. 3d 630, 634, 607 N.E.2d 685, 687 (1993); In re Estate of Kime, 95 Ill. App. 3d 262, 267, 419 N.E.2d 1246, 1249 (1981). When Rule 304(b) orders are entered before a final order is entered in the underlying litigation and no appeal is taken from the Rule 304(b) order within 30 days, the order cannot be challenged in an appeal from the final order in the case. See Estate of Thorp, 282 Ill. App. 3d at 616-17, 669 N.E.2d at 362-63; McCaffrey v. Nauman, 204 Ill. App. 3d 761, 765, 562 N.E.2d 628, 630 (1990). If such issues cannot be challenged in an appeal from the final judgment, it would appear illogical to hold that the pendency of such issues would preclude an appeal from the final judgment. Accordingly, even assuming that Marlene's motion for rule to show cause against Jeffrey was part of the dissolution action, there would be no reason to find that its continuing pendency precluded appealability of the otherwise final orders of August and September. See In re Marriage of Ryan, 188 Ill. App. 3d 679, 544 N.E.2d 454, 456 (1989) (in the context of a motion for a rule to show cause to enforce a final judgment of dissolution "all ancillary issues have already been determined and are ripe for review"); In re Marriage of Miller, 112 Ill. App. 3d 203, 445 N.E.2d 811 (1983) (reaching merits of appellate challenge to dissolution judgment even though rule to show cause for failure to comply with final judgment was pending at the time that the notice of appeal was filed).

[The preceding material is nonpublishable under Supreme Court Rule 23]

While we have found that our jurisdiction was not defeated by the continued pendency of Marlene's motion for a rule to show cause,*fn7 we are nevertheless without jurisdiction because the appeal is untimely. We find we are without jurisdiction to entertain the instant appeal because Marlene did not file a timely notice of appeal from the September order which disposed of the last pending post-trial motion and because the January nunc pro tunc order was void and thus the notice of appeal from that order cannot support our jurisdiction over an appeal from the merits of the original final order.

We begin here with the general proposition that orders entered by a court without jurisdiction both of the parties and of the subject matter are void ab initio, and are subject to attack at any time. In re Marriage of Mitchell, 181 Ill. 2d 169, 174, 692 N.E.2d 281, 284 (1998). Even though a court has jurisdiction of both subject matter and parties, it loses jurisdiction once 30 days have elapsed after entry of a final judgment in the case or, if timely post-trial motions are filed, once 30 days have elapsed after Disposition of the last timely-filed post-trial motion. Beck v. Stepp, 144 Ill. 2d 232, 238, 579 N.E.2d 824, 827 (1991); Gegenhuber v. Hystopolis Production, Inc., 277 Ill. App. 3d 429, 431, 660 N.E.2d 107, 109 (1995).

In this case there is no question that the circuit court had jurisdiction over both Jeffrey and Marlene and the subject matter of the lawsuit--their marriage--until August 6. However, on that date the court entered a final order in the case. Although Jeffrey filed a post-trial motion to clarify or modify the August 6 order, the court made a final and complete Disposition of that motion on September 9. Marlene did not file any post-trial motion with respect to the August 6 order, and neither party filed a post-trial motion after the September 9 order.*fn8 Accordingly, the court lost jurisdiction of the case on October 9, 30 days after September 9. Application of County Collector for Judgment and Order of Sale against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for Year 1990 and Prior Years, 281 Ill. App. 3d 467, 478, 667 N.E.2d 109, 116 (1996) (although normally court loses jurisdiction over a matter once 30 days have passed, the filing of a post-judgment motion delays the running of the 30-day period); In re Marriage of Agustsson, 223 Ill. App. 3d 510, 515, 585 N.E.2d 207, 211 (1992) (same).

As previously noted, orders entered by a court without jurisdiction over the subject matter of the litigation or a party thereto are ordinarily void ab initio. However, notwithstanding the general rule that the circuit court retains jurisdiction only for 30 days after entry of a final order, a court may modify its judgment nunc pro tunc at any time. Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827. Nunc pro tunc orders are employed by courts to correct clerical errors in written orders and thereby make final orders entered in a case conform to the actual judgment of the court. Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827 (a court may enter a nunc pro tunc order "to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court"; the purpose of such an order "is to correct the record of judgment, not to alter the actual judgment of the court"); Gegenhuber, 277 Ill. App. 3d at 432, 660 N.E.2d at 110. The order the court entered on January 15 purported to be a nunc pro tunc order; if this is a correct characterization of the order, the court could properly have entered it notwithstanding that it had lost jurisdiction of the case due to the passage of more than 30 days after Disposition of the last timely post-trial motion. Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827.

The first difficulty with our jurisdiction in this case is that the arguments Marlene raises on appeal only relate to the original August 6 order from which she never directly appealed.*fn9 Marlene admits that she did not appeal within 30 days after September 9, but she explains this by stating that under her interpretation of the August 6 and September 9 orders, she was to receive 50 percent of Jeffrey's stock in BMT, which made the valuation irrelevant. She also states that the nunc pro tunc order in January changed the result in the case, and accordingly "the amended final judgment in this action was not entered until January 15, 1997."

First, we reject Marlene's contention that there was no final order before January 15, 1997. This argument is belied by Marlene's own contention in reply to Jeffrey's response to her motion for a rule to show cause that the circuit court had lost jurisdiction to modify the judgment because more than 30 days had elapsed since the entry of the August 6 and September 9 orders. Moreover, the argument misperceives the nature of nunc pro tunc orders.

A nunc pro tunc order may itself properly be treated as an appealable order, because it would be manifestly unfair to allow a party no avenue in which to seek appellate review of the propriety of such an order. Accordingly, although a nunc pro tunc order for some purposes "relates back" to the time of the order it corrects, it does not relate back "in such a manner as to make it impossible to file a notice of appeal within the time required" by the supreme court rules. People v. Jones, 104 Ill. 2d 268, 278, 472 N.E.2d 455, 459 (1984) ("[t]he effective date of the order by virtue of the nunc pro tunc provisions may have been July 24, 1981, but the date of its entry for purposes of appeal was November 6, 1981"). Cf. People ex rel. Byrnes v. Stanard, 9 Ill. 2d 372, 374-75, 137 N.E.2d 829, 830-31 (1956) (stating that for a court to be able to preclude appellate review by entering a void order then amending that order nunc pro tunc after the time for appeal from the first order had expired "would clearly be violative of the statutory provisions pertaining to this aspect of our appellate practice and procedure"; accordingly, the time for appeal ran from the time of entry of the nunc pro tunc order). See also Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1059, 399 N.E.2d 216, 222 (1979) ("a judgment is not effective as of the date to which it expressly relates back if such effectiveness would deny to any proper party the right to review by a higher court (citations); the test being whether the party could have obtained the desired review before the nunc pro tunc order was made"); Barnett v. Werner, 13 Ill. App. 2d 494, 497, 142 N.E.2d 830, 832 (1957) (treating nunc pro tunc order as a final, appealable order). Moreover, the end result of a successful challenge to a nunc pro tunc order is that the order will be found void. See Beck, 144 Ill. 2d at 242, 579 N.E.2d at 829 ("the trial court's nunc pro tunc modification of its earlier order was improper and therefore void"). Thus it would appear that a nunc pro tunc order could also be challenged under the general rule that a void order may be attacked at any time. See Marriage of Mitchell, 181 Ill. 2d at 174, 692 N.E.2d at 284.

However, we are aware of no authority for the proposition that the entry of a nunc pro tunc order somehow has the effect of "unfinalizing" a prior final judgment. This is contrary to the very nature of a nunc pro tunc order, that it is an exception to the general rule that a court may not enter an order in a case once it has lost jurisdiction due to the passage of time after the entry of a final order. See Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827. The fact that a nunc pro tunc order is itself appealable does not connote that once a nunc pro tunc order has been entered a party may, in an appeal from the nunc pro tunc order, challenge provisions of the underlying order which was corrected nunc pro tunc. In fact, the only authority of which we are aware holds directly to the contrary, that a party may not use an appeal from a nunc pro tunc order as a vehicle for attacking portions of a final judgment from which the time to appeal has elapsed. See Pagano v. Rand Materials Handling Equipment Co., Inc., 249 Ill. App. 3d 995, 1000-1001, 621 N.E.2d 26, 30 (1993) ("Having failed to file a timely appeal, plaintiff cannot now [challenge the propriety of earlier final orders] under the guise of a challenge to the nunc pro tunc amendment to" one of those orders); In re Marriage of Hillinger, 146 Ill. App. 3d 549, 555, 497 N.E.2d 112, 116 (1986) (holding that a party's motion to reconsider final judgment and notice of appeal were untimely even though filed within 30 days after nunc pro tunc order attaching exhibits to final judgment); Kooyenga, 79 Ill. App. 3d at 1059, 399 N.E.2d at 222 (a party may not "take advantage of a clerical error as a means for perfecting an appeal from a judgment it had previously made a conscious determination not to appeal"). Barnett, upon which Marlene relies, is not to the contrary, because none of the issues on appeal in that case involved the order which had been modified nunc pro tunc. See Barnett, 13 Ill. App. 2d at 497-99, 142 N.E.2d at 832-33.*fn10

We recognize the potential equitable concerns raised by the above rule. If, as Marlene claims, she honestly interpreted the trial court's original order as awarding her 50% of Jeffrey's stock in BMT, she would have had no reason to appeal the trial court's valuation of the stock. If she were entitled to half of the stock itself, the value the trial court placed on the stock would have been irrelevant to her. Once the court entered its nunc pro tunc order, however, the accuracy of the court's valuation of the stock became critical, because contrary to her previous understanding, Marlene was not entitled to the stock itself, she was entitled only to a cash payment equivalent to half of the court's valuation of the stock in the August 6 judgment. Notions of fair play would seem to militate in favor of allowing Marlene to question the trial court's valuation of the stock in that circumstance.*fn11 On the other hand, there exist competing concerns in favor of finality of judgments and an end to litigation. But more overridingly, we simply cannot review the merits of a final order from which no timely notice of appeal was filed, notwithstanding the fact that there was no motivation for such an appeal until after the entry of the nunc pro tunc order. "The timely filing of a notice of appeal is both jurisdictional and mandatory." E.g., R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159, 692 N.E.2d 306, 310 (1998). As an appellate court, we are without authority to "'excuse compliance with the filing requirements of the supreme court rules governing appeals.'" Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150, 632 N.E.2d 1010, 1012 (1994), quoting In re Smith, 80 Ill. App. 3d 380, 399 N.E.2d 701 (1980).

However, in the final event, we need not determine whether in a proper case there should or could be carved out an exception to the general rule enunciated in Pagano and Kooyenga, because in this case the January 15 order was not a proper nunc pro tunc order. Accordingly, there is no basis for excusing Marlene's failure to file a timely appeal of the original order.

As previously noted, the purpose of a nunc pro tunc order is to "correct the record of judgment," to "correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court." Beck, 144 Ill. 2d at 238, 579 N.E.2d at 827. The evidence supporting the nunc pro tunc order "must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court." (Emphasis added.) Beck, 144 Ill. 2d at 238-39, 579 N.E.2d at 827. "'The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made, but omitted from the record.'" People v. Rosenwald, 266 Ill. 548, 554, 107 N.E. 854, 856 (1915), quoting Lindauer v. Pease, 192 Ill. 456, 459, 61 N. E. 454, 455 (1901); accord, Gill v. Gill, 56 Ill. 2d 139, 142, 306 N.E.2d 281, 282 (1973); Maywood Proviso State Bank v. Village of Lisle, 234 Ill. App. 3d 206, 214, 599 N.E.2d 481, 487 (1992); Phil Dressler & Associates, Inc. v. Old Oak Brook Investment Corp., 192 Ill. App. 3d 577, 581, 548 N.E.2d 1343, (1989). "[A] nunc pro tunc order serves merely to correct a prior order which incorrectly reflects what the trial court actually ruled at that time." (Emphasis added.) People ex rel. Illinois Dept. of Human Rights v. Arlington Park Race Track Corp., 122 Ill. App. 3d 517, 524, 461 N.E.2d 505, 510 (1984), citing Bradley v. Burrell, 97 Ill. App. 3d 979, 981, 424 N.E.2d 15, 17 (1981). Upon a motion for a nunc pro tunc order "[t]he court is not called on to construe the judgment, but only to enter of record such judgment as was formerly rendered and not entered of record as rendered." (Emphasis added.) 49 C.J.S Judgments §128a at 201 (1997). See also 49 C.J.S Judgments §124 at 198 ("A purported nunc pro tunc entry of judgment is erroneous where it fails to disclose the ground on which the court acts or what the entry is intended to correct" (emphasis added)).

The above authorities may differ in nuance, but they are uniform as to the fundamental proposition that a nunc pro tunc order may only properly be entered to correct a clerical error, so that the record will accurately reflect the actual judgment of the court. The purported nunc pro tunc order entered by the court in the instant case did not perform this function. That order itself explicitly stated that (1) the court understood its role as "the expressly limited purpose of interpretation," not correction, of the August 6 order, and (2) "there is no ambiguity in the" August 6 and September 9 orders. (Emphasis added.) Looking to the substance of the order, it does not purport to change or amend the provisions of the previous order; rather, it merely interprets it. The comments of the court at the January 15 hearing are also replete with statements to the effect that the original orders were clear and unambiguous. In other words, the court found that the record already accurately reflected its judgment. Jeffrey affirmatively maintains this position on appeal, stating that the January 15 order "only confirmed that the Judgment was clear on its face." This being the case, the January 15 order did not correct a clerical error. Rather, the court entered the January 15 order to "explain" what it meant in the August 6 order. Clarification, however, is not a proper purpose for a nunc pro tunc order. 49 C.J.S. Judgments §128a at 201; see also generally authorities cited above.

We recognize that interpretation or clarification of an order (what the trial court did in this case) and correction of a clerical error in an order (which is according to the above authority the only proper purpose of a nunc pro tunc order) share some significant similarities. In both contexts the attention of the circuit court is directed to its original intent, i.e., the court is asked to remember its original judgment, not to revisit it. By contrast, a motion for modification or reconsideration of a judgment draws the attention of the court to the merits of the case and suggests that the court's original decision (assuming that the order implements it accurately) was at least partially wrong.

We are aware that there exist cases in which the terms clarification and interpretation have been used to describe nunc pro tunc orders entered by a trial court. E.g. Kellett v. Roberts, 276 Ill. App. 3d 164, 169, 658 N.E.2d 496, 501 (1995); Baley v. Tonti, 174 Ill. App. 3d 828, 831, 529 N.E.2d 35, 36 (1988); In re Marriage of Hirsch, 135 Ill. App. 3d 945, 482 N.E.2d 625 (1985). However, in none of those cases did the reviewing court directly approve or even address the propriety of the use of a nunc pro tunc order only to clarify or interpret an order (rather than to correct a clerical error) after jurisdiction had otherwise been lost. In Kellett the nunc pro tunc order was entered in response to a motion for reconsideration filed three days after the final order was entered. Kellett, 276 Ill. App. 3d at 168, 658 N.E.2d at 500. Accordingly, the court still had jurisdiction over the case at the time it entered the order. This would appear most likely also to be the case in Baley. See 174 Ill. App. 3d at 831, 529 N.E.2d at 36 (final judgment entered on August 11, nunc pro tunc order entered on September 22 in response to an intervening post-trial motion). And although Marriage of Hirsch does refer to the nunc pro tunc order entered therein as "clarifying" a previous order, it also refers to the nunc pro tunc order as "correcting" the prior order. See Marriage of Hirsch, 135 Ill. App. 3d at 950, 955, 482 N.E.2d at 629, 632 ("the court on May 21, 1982, ordered a correction nunc pro tunc"; "[t]he nunc pro tunc order in this case corrected the judgment of February 18, 1982"). Moreover, independent of the court's characterization of the nunc pro tunc order, a careful reading of Marriage of Hirsch reveals that the trial court did in fact amend the earlier order.

The January 15 order in this case is different. It does not amend the prior order nor does it even purport to do so. It merely interprets the prior order. However close the above cases might come to the line between proper and improper nunc pro tunc orders, this case crosses that line. See Beck, 144 Ill. 2d at 238-39, 579 N.E.2d at 827 (the order being modified must clearly "fail[] to conform to the decree actually rendered by the court"); Arlington Park, 122 Ill. App. 3d at 524, 461 N.E.2d at 510 ("a nunc pro tunc order serves merely to correct a prior order which incorrectly reflects what the trial court actually ruled at that time"); 49 C.J.S Judgments §128a at 201 (1997) (upon a motion for a nunc pro tunc order "[t]he court is not called on to construe the judgment, but only to enter of record such judgment as was formerly rendered and not entered of record as rendered").

Since the January 15 order was not a proper nunc pro tunc order, the trial court was without jurisdiction to enter that order, because more than 30 days had elapsed since the court entered its (September 9) order disposing of the last pending post-trial motion. See Application of County Collector, 281 Ill. App. 3d at 478, 667 N.E.2d at 116; Marriage of Agustsson, 223 Ill. App. 3d at 515, 585 N.E.2d at 211. Since the court exceeded its jurisdiction in entering the order, the order was void. Marriage of Mitchell, 181 Ill. 2d at 174, 692 N.E.2d at 284. Because the order was void, the ruling which that order purported to amend must be reinstated. Beck, 144 Ill. 2d at 242, 579 N.E.2d at 829. Accordingly, the judgment of the Circuit Court of Cook County must be modified to restore the original judgment order of August 6, as amended by the order of September 9. See 155 Ill. 2d R. 366(a)(1) (the appellate court may "exercise all or any of the powers of amendment of the trial court"); Gegenhuber, 277 Ill. App. 3d at 432-33, 660 N.E.2d at 109-10 (modifying judgment of the circuit court).

The fact that the nunc pro tunc order was void requires us to dismiss the substantive portions of the appeal. As previously noted, Marlene had the opportunity to file an appeal within 30 days after September 9, and she failed to do so. Accordingly, if the nunc pro tunc order had never been entered, we would clearly be without jurisdiction to consider any appeal from the substantive portions of the final order. Mitchell, 158 Ill. 2d 143, 632 N.E.2d 1010 (appeal must be dismissed when appellant has failed to file notice of appeal within 30 days after entry of final judgment); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539, 470 N.E.2d 290, 292 (1984); In re Marriage of Wisniewski, 286 Ill. App. 3d 236, 242, 675 N.E.2d 1362, 1367 (1997); Clark v. Han, 272 Ill. App. 3d 981, 985, 651 N.E.2d 549, 551 (1995). The purported nunc pro tunc order does not alter the application of the above rule, since because that order is void it is as if it were never entered. National Bank v. Multi National Industries, Inc., 286 Ill. App. 3d 638, 640, 678 N.E.2d 7, 9 (1997) (void orders "are a complete nullity from their inception and have no legal effect"; such orders "may not change the status of a case"); Wilder v. Finnegan, 267 Ill. App. 3d 422, 425, 642 N.E.2d 496, 499 (1994) ("a void order can be attacked at any time and is from its inception a complete nullity and without legal effect"); Application of Cook County Collector, 228 Ill. App. 3d 719, 731, 593 N.E.2d 538, 547 (1991) (void orders are "a complete nullity and without legal effect"). Accordingly, there is no jurisdictional basis for Marlene to maintain any appellate challenge to the final judgment in the dissolution case.*fn12

Although we have found that the purported nunc pro tunc order was entered without jurisdiction, this does not leave the judgment without any further potential for explanation or clarification. We note that the general rule is that judgments may be construed like other written instruments. In re Marriage of Plymale, 172 Ill. App. 3d 455, 459, 526 N.E.2d 882, 884 (1988); 50 C.J.S. Judgment §534a at 91. For instance, although an unambiguous judgment must be enforced as drafted, an ambiguous judgment may be read in conjunction with the entire record and construed in accordance therewith. Marriage of Plymale, 172 Ill. App. 3d at 459, 526 N.E.2d at 884; 50 C.J.S. Judgment §534b at 93-4. Cf. 50 C.J.S. Judgment §534b at 94 ("the rule that a judgment which is ambiguous should be read in connection with the entire record and construed accordingly does not permit supplementation of the record by parol evidence"). The fact that a final order may require interpretation does not by virtue of its ambiguity permit a nunc pro tunc determination of its meaning in the proceeding in which it was entered; rather, an order will ordinarily be interpreted in the context of a subsequent enforcement proceeding. Although such an interpretation might be challenged in an appeal from the enforcement proceeding, it will not create a jurisdictional basis for an appeal in the original proceeding from the final order itself.

Finally, we are aware that on December 24, 1997, a panel of this Court denied Jeffrey's motion to dismiss the appeal on jurisdictional grounds. However, the denial of a motion to dismiss an appeal is not final, and the question of our jurisdiction to hear a case may be revisited at any time before final Disposition of the appeal. Hwang v. Tyler, 253 Ill. App. 3d 43, 45, 625 N.E.2d 243, 245 (1993); Phil Dressler & Associates, Inc. v. Old Oak Brook Investment Corp., 192 Ill. App. 3d 577, 580, 548 N.E.2d 1343, 1345 (1989); Carter v. Chicago & Illinois Midland Railway Co., 144 Ill. App. 3d 437, 439, 494 N.E.2d 892, 894 (1986), rev'd on other grounds, 119 Ill. 2d 296, 518 N.E.2d 1031 (1988); Mount Vernon Girl Scout Council v. Girl Scouts of U.S. of America, 55 Ill. App. 2d 443, 448, 205 N.E.2d 474, 477 (1965). See also generally Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill. App. 3d 790, 798, 629 N.E.2d 520, 525 (1993) ("[t]he denial of a motion to dismiss made in the reviewing court does not bind the court. Such rulings are not unassailable, but rather are open to reconsideration"); Smith v. Intergovernmental Solid Waste Disposal Ass'n, 239 Ill. App. 3d 123, 133, 605 N.E.2d 654, 660 (1992) (same). As a reviewing court we have the obligation to be certain of our jurisdiction before proceeding in a cause of action. R.W. Dunteman Co., 181 Ill. 2d at 159, 692 N.E.2d at 310. After our examination of the entire record and the briefs and arguments of the parties, we are of the opinion that the appeal must in fact be dismissed.

CONCLUSION

The January 15 order entered by the circuit court was not a proper nunc pro tunc order, because it merely interpreted the order the court had previously entered. Since the order was entered more than 30 days after the court disposed of the last post-trial motion, the entry of the order was an act beyond the jurisdiction of the circuit court and the order was therefore void. Since the January 15 order was void, the August 6 final order (as modified by the order of September 9) is reinstated. However, because there was no timely notice of appeal filed from the September order disposing of the last post-trial motion, we are without jurisdiction to entertain the merits of the instant appeal. It is therefore dismissed.

Order of January 15 stricken as void; orders of August 6 and September 9 reinstated; appeal dismissed.

GORDON, P.J., with McNULTY and COUSINS, JJ., Concurring.


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