Brickey v. Brickey, 76--271

Citation44 Ill.App.3d 563,358 N.E.2d 406,3 Ill.Dec. 239
Decision Date23 December 1976
Docket NumberNo. 76--271,76--271
Parties, 3 Ill.Dec. 239 Doris M. BRICKEY, Plaintiff-Appellee, v. Clarence BRICKEY, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Dowell & Dowell, N.Y. Dowell, Mount Vernon, for defendant-appellant.

Morris W. Kegley, A. Ben Mitchell, Craig & Craig, Mount Vernon, for plaintiff-appellee.

JONES, Justice.

Plaintiff, Doris M. Brickey, was granted a divorce from defendant, Clarence Brickey, in a decree filed February 21, 1975. On May 28, 1975, three months and some days later, the plaintiff filed a petition requesting the court to award to her the federal and state income taxes withheld from her salary in 1974 which had been included in the joint income tax return filed by her and defendant for 1974. This return was signed by the plaintiff at the request of the defendant's bookkeeper on April 15, 1975, two months after the entry of the decree of divorce. The return indicated an overpayment of taxes which was to be credited to the 1975 estimated tax. Plaintiff's petition requested that the defendant be ordered to return to her that portion of the overpayment which could be attributed to taxes paid by her in 1974. A hearing on the petition was held March 9, 1976, and the defendant was ordered to pay to plaintiff $1,432.80. Defendant appeals from that order.

The decree expressly dealt with the following matters: granting of a divorce to plaintiff; dismissal of defendant's counterclaim; granting custody of minor child to plaintiff; child support; granting of title to the family car to plaintiff; granting of title to the marital home valued at $30,000 to plaintiff and assumption of the approximately $5,000 balance of an existing mortgage by plaintiff; granting of all interest in his business to defendant; and extinguishing of all other claims one party might have against the other growing out of the marital relationship.

The defendant contends that the decree was final, that all property rights were adjudicated and all subsequent claims of either party against the other were specifically extinguished by the decree and the plaintiff's petition should have been dismissed since it dealt with substantive matters no longer within the court's jurisdiction. The plaintiff, on the other hand, alleges that the instant petition and subsequent order thereon were concerned simply with enforcement of the decree and the order should therefore be affirmed.

Courts of equity have no inherent powers in divorce cases. The jurisdiction of courts of equity to hear and determine divorce cases, and all matters relating thereto, is conferred only by statute. While such courts may exercise their powers within the limits of the jurisdiction conferred by the statute, the jurisdiction depends upon the grant of the statute and not upon general equity powers. (Smith v. Smith, 334 Ill. 370, 166 N.E.2d 85; Recklein v. Recklein, 327 Ill.App. 641, 64 N.E.2d 787.) The property rights created in a divorce decree become vested and after 30 days the court is without jurisdiction to modify them. (Ill.Rev.Stat.1973, ch. 110, par. 50(5); Jamal v. Jamal, 98 Ill.App.2d 180, 240 N.E.2d 246; Bratkovich v. Bratkovich, 34 Ill.App.2d 122, 180 N.E.2d 716.) Section 18 of the Divorce Act (Ill.Rev.Stat.1973, ch. 40, par. 19) does not enlarge the general equity powers of the court in divorce cases but it does confer a limited power to make orders touching alimony and maintenance of the parties and the custody, care and support of children. Being a power specially conferred by statute, it cannot be extended beyond its terms to permit an alteration of the provisions of the decree relating to property rights, (Recklein v. Recklein.) However, a court does...

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12 cases
  • Lamp v. Lamp
    • United States
    • United States Appellate Court of Illinois
    • 9 Julio 1979
    ... ... (Walters v. Walters, 409 Ill. 298, 99 N.E.2d 342 (1951); Jamal v. Jamal, 98 Ill.App.2d 180, 240 N.E.2d 246 (1st Dist. 1968); Brickey v. Brickey, 44 Ill.App.3d 563, 3 Ill.Dec. 239, 358 N.E.2d 406 (5th Dist. 1976).) This principle was incorporated in section 18 of the former Divorce ... ...
  • Ransom v. Ransom
    • United States
    • United States Appellate Court of Illinois
    • 7 Diciembre 1981
    ...Pettit (1978), 60 Ill.App.3d 375, 378, 17 Ill.Dec. 636, 639, 376 N.E.2d 782, 785, rev'd on other grounds; Brickey v. Brickey (1976), 44 Ill.App.3d 563, 3 Ill.Dec. 239, 358 N.E.2d 406. Petitioner next contends that the trial court was required to consider the financial resources of the parti......
  • In re Benson
    • United States
    • United States Appellate Court of Illinois
    • 26 Mayo 2015
    ...a final and appealable order. Hubbard, 215 Ill.App.3d at 116, 158 Ill.Dec. 747, 574 N.E.2d at 862 ; Brickey v. Brickey, 44 Ill.App.3d 563, 564, 3 Ill.Dec. 239, 358 N.E.2d 406, 408 (1976). However, a court always maintains jurisdiction to enforce its judgments. Brickey, 44 Ill.App.3d at 565,......
  • Marriage of Kekstadt, In re
    • United States
    • United States Appellate Court of Illinois
    • 17 Junio 1980
    ...(1929), 334 Ill. 370, 166 N.E. 85) and thus the equity courts have no inherent power in these cases. (Brickey v. Brickey (5th Dist. 1976), 44 Ill.App.3d 563, 3 Ill.Dec. 239, 358 N.E.2d 406.) Illinois statutory law requires that the final decree in a civil case is a "conclusive adjudication ......
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