Brody v. Hess

• Decision Date: 16 August 1979
• Docket Number: No. 79-52,79-52
• Citation: 75 Ill.App.3d 402,394 N.E.2d 570,31 Ill.Dec. 368
• Parties: , 31 Ill.Dec. 368 Eric E. BRODY, M. D., Petitioner-Appellee, v. Susan HESS f/k/a Susan Brody, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 570

394 N.E.2d 570

75 Ill.App.3d 402, 31 Ill.Dec. 368

Eric E. BRODY, M. D., Petitioner-Appellee, v. Susan HESS f/k/a Susan Brody, Respondent-Appellant.

No. 79-52.

Appellate Court of Illinois, First District, Fourth Division.

Aug. 16, 1979.

Rehearing Denied Sept. 24, 1979.

Howard Joeseph, Chicago, for respondent-appellant.

Lord, Bissell & Brook, Chicago, for petitioner-appellee.

JIGANTI, Presiding Justice:

On July 16, 1974, a judgment of divorce was entered after a prove up at which the petitioner, Eric E. Brody, testified. No appearance was filed for the respondent, Susan Hess, formerly known as Susan Brody. On March 1, 1978, Brody filed a petition to reform the judgment of divorce to provide that all claims for alimony by both parties were barred. On November 2, 1978, the judgment was amended in accordance with the petition. Hess appeals from that ruling.

The transcript of the prove up on June 11, 1974, shows that the parties were married in March, 1969, and separated in October, 1972. Brody testified that there was an oral agreement settling all property rights. The terms of the agreement were stated and the court asked questions about the division of the property. There was very little property. In response to a question from the court the attorney for Brody stated that neither party desired alimony. The court asked if there should be a joint waiver of alimony and counsel responded affirmatively. At the conclusion of the prove up the court stated that there would be a judgment of divorce and that there had been a division of property and that the parties had agreed to a joint waiver of alimony.

The judgment of divorce entered on July 16, 1974, reflected the fact that the parties had agreed between themselves to settle all questions of property and that the agreement was fair and equitable. However, it contained no statement with reference to alimony.

On September 25, 1978, the court conducted a hearing on the petition to modify the judgment. Hess testified that she consulted an attorney who had told her that he would represent her. She was under the impression that if she did not sign an alimony waiver she would be able to return at a future time to obtain alimony. She never told her attorney that she would waive alimony. She saw the judgment of divorce but did not see the transcript of the hearing. Brody testified that he told Hess that he had strong feelings against paying alimony and would give anything that was reasonable outside of alimony. He stated that Hess agreed and that there would be no further pursuit of alimony at anytime. The attorney for Brody testified that the attorney for Hess stated that Hess was not seeking alimony. Hess' attorney stated that although he did not file an appearance for her in the divorce proceeding, he did advise her. He stated he had no recollection of a conversation regarding alimony.

The court has the inherent power to enter an order Nunc pro tunc at anytime to correct a clerical error or a matter of form. This may be done even after the expiration of the term in which the judgment was entered. (In re: Estate of Young (1953), 414 Ill. 525, 112 N.E.2d 113; Knefel v. The People (1900), 187 Ill. 212, 58 N.E. 388.) "The law is well settled that a court is powerless to amend its final judgment and thereby correct judicial errors after the term at which it was rendered. It may, however, thereafter, upon notice to parties in interest, by order entered Nunc pro tunc, amend or correct such judgment, when, by reason of a clerical misprision, it does not speak the truth." (Knefel v. The People.) The...