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In re Marriage of Adamson

November 22, 1999

IN RE MARRIAGE OF JAMES H. ADAMSON,
PETITIONER-APPELLANT,
AND
PHYLLIS M. COSNER, F/K/A PHYLLIS M. ADAMSON,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 92--D--0066 Honorable Robert J. Anderson, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

22 November 1999

Following the dissolution of their marriage, respondent, Phyllis Cosner, f/k/a Phyllis Adamson, petitioned the trial court to enter a rule to show cause against petitioner, James Adamson, for his failure to make maintenance payments to respondent. The trial court issued the rule and subsequently found petitioner in contempt. Petitioner moved to vacate the contempt orders, and the trial court denied his motion. Petitioner appeals, contending that the trial court lacked jurisdiction to enter the amended judgment of dissolution that created the maintenance obligation and that the trial court erred when it held that the obligation was not discharged by petitioner's subsequent bankruptcy.

We affirm.

On December 22, 1992, the trial court entered a judgment dissolving the parties' marriage and incorporating a marital settlement agreement. In the provisions relevant to this appeal, the parties agreed that the marital residence had a value of $820,000 and was subject to a first mortgage of $189,400 and a home equity loan of $72,200. Petitioner agreed to release his interest in the residence to respondent, and she agreed to assume the first mortgage. Petitioner agreed to assume the home equity loan and refinance the loan in his own name. The parties also agreed to divide equally a money market account valued at approximately $25,000. Finally, each party agreed to a permanent and irrevocable waiver of maintenance.

On August 1, 1996, respondent petitioned the trial court for a temporary restraining order and preliminary injunction. In the petition, respondent alleged, inter alia, that after the parties signed the marital settlement agreement but before judgment was entered, petitioner increased the home equity loan on the marital residence to $125,000 and borrowed an additional $34,000 that he secured with a second mortgage on the marital residence. The petition further alleged that petitioner had defaulted on both loans and that the creditors had initiated foreclosure proceedings. Respondent moved the trial court to order petitioner to disclose his interest in various accounts, to freeze some of petitioner's assets, and to order petitioner to satisfy the encumbrances he had placed on the marital residence including the $125,000 home equity loan and the $34,000 second mortgage.

On December 12, 1996, the parties agreed to modify the judgment of dissolution. The modified agreement granted respondent possession of the marital residence subject to a $385,000 mortgage for which the parties were jointly liable. Respondent was responsible for a monthly mortgage payment of $2,785.19. Petitioner waived any interest he may have had in the money market account. Finally, petitioner agreed to pay respondent monthly maintenance of $1,379.10 for 139 months with a final payment of $635.10. The parties agreed that petitioner's obligation to pay maintenance would survive his death and would be binding on his estate unless he purchased life insurance sufficient to satisfy the maintenance obligation.

On February 13, 1997, at respondent's request, the trial court entered an order requiring petitioner to show cause why he should not be held in contempt for failure to pay maintenance and provide respondent with proof of insurance as required by the modified agreement. The matter was continued several times, and on April 30, 1998, the trial court found petitioner in indirect civil contempt and ordered him incarcerated in a work release program until he paid a purge amount of approximately $9,000. Petitioner subsequently filed an emergency motion to vacate the April 30 order. The trial court continued the matter for hearing and stayed the portion of its order that incarcerated petitioner.

Petitioner subsequently filed a motion to vacate pursuant to section 2--1301 of the Code of Civil Procedure (the Code) (735 ILCS 5/2- -1301 (West 1998)). Petitioner asked the trial court to vacate all orders entered after July 7, 1997, and alleged that he had filed a petition for bankruptcy on that date and had received a discharge of all debts on November 11, 1997. Petitioner argued that the orders were void because they had been entered in violation of the automatic stay provisions of the Bankruptcy Code (see 11 U.S.C. §362 (1994)) and because the obligation was a property settlement that had been discharged. At the hearing, petitioner also argued that the modified agreement was void ab initio because the trial court lost jurisdiction to modify the judgment of dissolution. The trial court denied petitioner's motion, finding that it had continuing jurisdiction of the case or, alternatively, that the parties had revested the trial court with jurisdiction. The trial court further found that the obligation was intended as maintenance and was therefore not discharged by petitioner's bankruptcy. Petitioner appeals.

As an initial matter, after this appeal was fully briefed, respondent's attorneys filed a motion for leave to withdraw as attorneys of record. We grant that motion.

Next, we must address respondent's motion, which we have taken with case, to dismiss the appeal. Respondent argues that, because petitioner's motion to vacate was brought pursuant to section 2--1301 of the Code (735 ILCS 5/2--1301 (West 1998)), he could not challenge any order entered more than 30 days prior to his motion to vacate. However, a void judgment may be attacked at any time " 'without any showing of diligence or meritorious defense.' " Bank of Matteson v. Brown, 283 Ill. App. 3d 599, 606 (1996), quoting Dec v. Manning, 248 Ill. App. 3d 341, 347 (1993). Moreover, the courts should be liberal in recognizing a motion to vacate as a collateral attack on a judgment even if mislabeled. Bank of Matteson, 283 Ill. App. 3d at 606. In this case, although petitioner labeled his motion to vacate as a section 2--1301 motion, the substance of the motion and the arguments made at the hearing clearly indicate that petitioner was attacking the modified judgment as void. Therefore, respondent's motion to dismiss is denied and we will address the merits of petitioner's appeal.

Petitioner first contends that the amended judgment and the subsequent enforcement orders were void because the trial court lacked jurisdiction. Generally, the lack of subject matter jurisdiction can be raised at any time and may be raised for the first time on appeal. In re Marriage of Jerome, 255 Ill. App. 3d 374, 388 (1994); see also City of Marseilles v. Radke, 287 Ill. App. 3d 757, 761 (1997). A judgment entered by a court lacking subject matter jurisdiction is a nullity and may be attacked at any time in any proceeding. Jerome, 255 Ill. App. 3d at 388. When a court lacks subject matter jurisdiction, it cannot be conferred by stipulation, consent, or waiver. Marseilles, 287 Ill. App. 3d at 761. Our review of a trial court's determination of subject matter jurisdiction is de novo. Marseilles, 287 Ill. App. 3d at 761.

Petitioner acknowledges that the trial court had jurisdiction to enter the original judgment of dissolution but argues that the court lost the jurisdiction to modify that judgment after 30 days. Respondent argues that the trial court retained jurisdiction to modify the judgment incident to its power to enforce the judgment, and alternatively argues that the parties revested the trial court with jurisdiction when they agreed to modify the judgment. Our analysis of these competing arguments centers on a single undisputed fact--petitioner and respondent agreed to modify the judgment.

Generally, a trial court loses jurisdiction in a dissolution action 30 days after it enters a final order. In re Marriage of Schauberger, 253 Ill. App. 3d 595, 599 (1993). However, a trial court retains jurisdiction to enforce its order past 30 days when the judgment orders or contemplates further performance by the parties. Anest v. Bailey, 265 Ill. App. 3d 58, 66 (1994). In a dissolution action the trial court retains extraordinary continuing jurisdiction not applicable to civil cases generally. See In re Marriage of Wonderlick, 259 Ill. App. 3d 692, 694 (1994). However, a trial court's jurisdiction to enforce a dissolution judgment does not include the jurisdiction "to engraft new obligations onto the judgment." In re Marriage of Hubbard, 215 Ill. App. 3d 113, 117 (1991); see also In re Marriage of Himmel, 285 Ill. App. 3d 145, ...


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