Gray v. Starkey

• Decision Date: 27 August 1976
• Docket Number: No. 75--434,75--434
• Citation: 41 Ill.App.3d 555,353 N.E.2d 703
• Parties: Edward Charles GRAY and Leslie Dell Gray, Plaintiffs-Appellees, v. Charlia Rene STARKEY, a minor by and through her guardian ad litem, Joseph Kelleher, Jr., et al., Defendants. Fred CLYMER and Sharen Clymer, Counter-Plaintiffs-Appellants, v. Charlia Rene STARKEY, a minor by and through her guardian ad litem, et al., Counter-Defendants.
• Court: United States Appellate Court of Illinois

Page 703

353 N.E.2d 703

41 Ill.App.3d 555

Edward Charles GRAY and Leslie Dell Gray, Plaintiffs-Appellees, v. Charlia Rene STARKEY, a minor by and through her guardian ad

litem, Joseph Kelleher, Jr., et al., Defendants.

Fred CLYMER and Sharen Clymer, Counter-Plaintiffs-Appellants, v. Charlia Rene STARKEY, a minor by and through her guardian ad

litem, et al., Counter-Defendants.

No. 75--434.

Appellate Court of Illinois, Fifth District.

Aug. 27, 1976.

Gerald B. Cohn, Bethalto, for appellants.

R. Michael Fischer, Alton, for appellees.

JONES, Justice:

This appeal has been brought by Fred Clymer, the natural father of Charlia Rene Starkey, a minor, because of certain rulings made by the trial court adverse to Clymer in a proceeding brought by Edward and Leslie Gray to adopt Charlia Starkey.

Janice Lee Starkey, the natural mother of Charlia Starkey died in January of 1972. In February of 1972 Phillip and Linda Taylor filed a petition to adopt Charlia Starkey. Fred Clymer, the child's natural father, was named a defendant and contested the petition. After a hearing in the matter, the trial court entered an interim order which determined Clymer to be an unfit person to have Charlia Starkey, terminated the parental rights of Clymer, and awarded interim custody of the child to the Taylors. Clymer took an appeal to this court from the order terminating his parental rights, but the judgment of the trial court was affirmed. (See Taylor v. Starkey, 20 Ill.App.3d 630, 314 N.E.2d 620.)

Subsequently, the Taylors abandoned their adoption petition and the adoption was never finalized. The Taylors apparently (although it is not clear from the record) also relinquished actual custody of the child to Edward and Leslie Gray. On December 13, 1974, the Grays (hereinafter 'plaintiffs') filed a petition to adopt Charlia Starkey. The petition named the child, Fred Clymer, and the Taylors as defendants and alleged, Inter alia, that Clymer had been adjudicated unfit to be the parent of the child.

On January 24, 1975, Clymer filed a motion to dismiss the petition because of several named deficiencies. On February 28, 1975, the court entered an order granting the motion to dismiss the petition because of the failure of the plaintiffs to include the allegations required by section 5B(c) and (k) of the Adoption Act (Ill.Rev.Stat., ch. 4, par. 9.1--5B(c) and (k).) The order granted plaintiffs 21 days to amend the petition.

Plaintiffs filed an amended petition on June 10, 1975, 81 days after the expiration of the time granted plaintiffs to file the amended petition. The amended petition named only the child and the Taylors as defendants. It alleged, Inter alia, that the Taylors had legal custody of the child; that plaintiffs acquired actual physical custody of the child from the Taylors on August 4, 1973; and that 'the rights of the father of Charlia Rene Starkey' had been terminated in a prior, named court action. On June 26, 1975, Clymer filed a motion to dismiss the amended petition on the basis that it had been filed beyond the time previously granted by the court for the filing of the amended petition. That same day, the court allowed Clymer's motion to dismiss the amended petition and dismissed the case. Thereafter, however, plaintiffs filed a motion to reconsider and for leave to file the amended petition for adoption; and, on August 26, 1975, the court granted the motion to reconsider, denied the motion to dismiss the amended petition, and granted plaintiffs leave to file the amended petition.

On August 18, 1975, Fred Clymer and his wife, Sharon Clymer, filed a petition to intervene and a 'countercomplaint for adoption.' Plaintiffs thereafter filed a motion to strike the petition to intervene and a motion to dismiss the countercomplaint. On August 27, 1975, the court entered an order which denied the Clymers' petition to intervene and dismissed with prejudice the Clymers' countercomplaint for adoption.

Two issues are raised in this appeal: (1) whether the trial court erred in allowing plaintiffs to file an amended complaint; and (2) whether the trial court erred in denying the Clymers' petition to intervene and in dismissing their countercomplaint for adoption. As will be discussed hereinafter, we find no error with respect to either issue and, accordingly, affirm.

As we have already stated, the trial court dismissed plaintiffs' original petition because the petition did not contain the allegations required by section 5B(c) and (k) of the Adoption Act. (Ill.Rev.Stat., ch. 4, par. 9.1--5B(c) and (k).) The court gave plaintiffs 21 days to file an amended petition; and 81 days after the expiration of this time granted plaintiffs, they filed their amended petition. Appellant Fred Clymer, who at that time was a named defendant argued before the trial court and again argues in this appeal, that the trial court had lost jurisdiction in the matter because the 21-day period had expired.

The deficiencies in plaintiffs' original petition were mere technical deficiencies easily correctable by the filing of an amended petition. Section 5B(c) of the Adoption Act merely requires the petition to state '(w)hen the petitioners acquired, or intend to acquire, custody of the child, and the name and address of the persons or agency from whom the child was or will be received.' (Ill.Rev.Stat., ch. 4, par. 9.1--5B(c).) Section 5B(k) of the Adoption Act merely requires the petition to state 'whatever orders, judgments or decrees have' previously 'been entered by any court affecting (1) adoption or custody of the child, or (2) the adoptive, custodial or parental rights of either petitioner, including the prior denial of any petition for adoption pertaining to such child, or to be petitioners, or either of them.' (Ill.Rev.Stat., ch. 4, par. 9.1--5(B)(k).)

Under section 46(1) of the Civil Practice Act (Ill.Rev.Stat., ch. 110, par. 46(1)), the trial court may allow amendments to the pleadings on just and reasonable terms at any time before Final judgment in any matter, either of form or substance, which may enable the plaintiff to sustain the claim for which the pleading was intended to be brought or the defendant to make a defense or assert a cross demand. A judgment or order is not final unless it terminates the litigation between the parties to the suit and finally determines, fixes and disposes of their rights as to the issues made by the suit. (Peach v. Peach, 73 Ill.App.2d 72, 218 N.E.2d 504.) Trial orders allowing (Curtis v. Albion-Brown's Post 590 American Legion, 65 Ill.App.2d 473, 213 N.E.2d 621) or denying (Seaman v. Lawn Savings and Loan Ass'n., 128 Ill.App.2d 181, 262 N.E.2d 823) leave to file an amended pleading are not final judgments. Moreover, trial orders which dismiss or strike a complaint, which if affirmed, might result in the filing by the plaintiff of a new suit or amended complaint from the same transaction are not final judgments, because they do not terminate the litigation between the parties. (Robinson v. City of Genesco, 77 Ill.App.2d 308, 222 N.E.2d 331; Schoen v. Caterpillar Tractor Co., 77 Ill.App.2d 315, 222 N.E.2d 332; Lakatos v. Prudence Mut. Cas. Co., 113 Ill.App.2d 310, 252 N.E.2d 123.) Whether a dismissal of a complaint bars a subsequent suit for the same cause of action depends upon whether the dismissal was based on a technical deficiency, easily correctable. Pratt v. Baker, 79 Ill.App.2d 479, 223 N.E.2d 865, cert. den. 389 U.S. 874, 88 S.Ct. 165, 19 L.Ed.2d 157; Martin v. Masini, 90 Ill.App.2d 348, 232 N.E.2d 770; Lakatos v. Prudence Mut. Cas. Co., supra. In King v. Donahue, 70 Ill.App.2d 481, 216 N.E.2d 824, and Shroat v. Robins, 7 Ill.App.3d 293, 287 N.E.2d 157, the appellate court held that the trial court had not abused its discretion when it refused to allow a party to file an amended complaint after the expiration of the time previously granted by the court for the filing of the amended complaint. These cases do not establish, however, that a trial court loses jurisdiction of a case after the expiration of the period granted for the filing of an amended complaint. When, as in this case, the trial court dismisses a complaint because of some technical deficiency and allows a certain number of days for filing an amended complaint, the trial court can allow the amended complaint to be filed after the expiration of that period, since the dismissal of the complaint with leave to correct the deficiency does not amount to a final judgment. The trial court in the instant case did not err in allowing plaintiffs to file an amended complaint 81 days after the expiration of the time previously granted plaintiffs to do so.

The second question we are concerned with is whether the trial court erred in denying the Clymers' petition to intervene. As will be discussed hereinafter, we find no error in the court's denial of the petition to intervene. As a consequence of that ruling, we find it unnecessary to discuss the question whether the court erred in dismissing the Clymers' countercomplaint, since the filing of the countercomplaint is necessarily dependent upon the court's allowing intervention. See Ill.Rev.Stat., ch. 110, par. 26.1(5).

As provided by section 20 of the Adoption Act ...