Marriage of Cohn, In re
| Decision Date | 22 October 1982 |
| Docket Number | No. 54978,54978 |
| Citation | 93 Ill.2d 190,66 Ill.Dec. 615,443 N.E.2d 541 |
| Parties | , 66 Ill.Dec. 615 In re MARRIAGE OF Ruth M. COHN, Appellee, and Stuart A. Cohn, Appellant. |
| Court | Illinois Supreme Court |
Stephen H. Katz, Ltd., Stephen H. Katz and Gregg I. Minkow, Peter F. LoMonaco, Rawles, Katz & McKeown, Ltd., Waukegan, for appellant.
Gomberg, Schaps & Goldberg, Ltd., Chicago, for appellee; Vincent F. Vitullo, Chicago, of counsel.
The circuit court of Lake County denied a motion by petitioner, Ruth Cohn, to vacate a judgment of dissolution of her marriage to respondent, Stuart Cohn. The appellate court reversed, vacating the judgment and remanding the cause for further proceedings. (94 Ill.App.3d 732, 50 Ill.Dec. 621, 419 N.E.2d 729.) We granted respondent's petition for leave to appeal.
The issues raised by respondent on appeal can be condensed to two essential questions: (1) Did the trial court err in this case by entering a dissolution order while reserving property disposition, child custody, and maintenance issues for future consideration? (2) If so, did a legislative amendment, effective August 14, 1981, retroactively validate the trial court's action?
The following is a summary of facts. On May 1, 1979, Ruth Cohn filed a petition to dissolve her marriage to respondent. On May 14, after an uncontested hearing on grounds for dissolution, the trial judge made the following oral pronouncement, as indicated by the report of proceedings:
On the same day, the judge signed an order, which appears to be a standard form that included blank spaces for filling in specifics. The order (with the italicized words indicating the written-in portions) stated:
The docket sheet entry for May 14 provides:
"Hearing on Petition and Response--Court finds sufficient evidence to establish extreme and repeated mental cruelty without provocation of Petitioner--Cause continued to property disposition, child custody & support, maintenance etc. upon hearing or agreement to be brought up on notice for entry of Judgment (See Order)."
On December 12, 1979, respondent filed a motion requesting the court "to enter the attached Judgment for Dissolution of Marriage in accordance with the proceedings which were held on May 14, 1979." The proposed judgment included the notation "ENTERED Nunc Pro Tunc May 14, 1979." On the same date, petitioner filed a response to the motion, alleging that following the May 14 hearing she and respondent resumed cohabitation as husband and wife, that as a result she became pregnant, and that she was then six months pregnant. She also alleged that she resumed cohabitation with respondent in reliance upon his representations. She moved the court to vacate, hold for naught, and expunge the proceedings and testimony held on May 14, 1979.
After the hearing on the motion, the trial court entered the following order:
"ON MOTION * * * for respondent to enter judgment herein and the Court having considered the transcript of proceedings of May 14, 1979 and having heard the arguments of counsel and being fully advised in the premises,
It is hereby ordered that the Motion to enter the Judgment of Dissolution of Marriage is allowed.
Petitioner is allowed thirty (30) days from this date to file Petition to Vacate and supporting Memorandum of Law."
The court also signed the judgment of dissolution which had been submitted by respondent which provided "ENTERED NUNC PRO TUNC May 14, 1979."
On January 4, 1980, within the 30-day period, petitioner filed a motion to vacate the judgment, alleging that the court had no authority to enter a judgment of dissolution before the maintenance, child support, and other property rights were determined; that the court had no authority to enter the judgment nunc pro tunc May 14, 1979; and that the court erred in not making an express written finding that there was no just reason for delaying enforcement or appeal. A hearing on the motion was held on January 25, and on January 31, 1980, the trial court denied the motion and expressly found there was no just reason for delaying enforcement or appeal.
The appellate court first determined that denial of the motion to vacate the judgment dissolving the marriage, but reserving property disposition, maintenance and child custody issues for future consideration, was appealable under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)). It then held that section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1977, ch. 40, par. 401(3)) allows reservation of child custody, support, maintenance or property disposition only under "appropriate circumstances." (94 Ill.App.3d 732, 739, 50 Ill.Dec. 621, 419 N.E.2d 729.) The court opined that appropriate circumstances included, but were not limited to, where the court does not have in personam jurisdiction over the respondent, where a party is unable to pay child support or maintenance if so ordered, where the court has set aside an adequate fund for child support pursuant to section 503(d) of the Act (Ill.Rev.Stat.1977, ch. 40, par. 503(d)), or where the children do not reside with either parent. The court concluded that because the circumstances of this case do not provide "appropriate circumstances" for dissolving the marriage before adjudication of the other issues, the court was without authority to enter the dissolution judgment. The court also stated that the statutory prerequisites set forth in section 401(3) are not jurisdictional in the sense they cannot be waived. Finding that, in this case, petitioner had not waived the mandatory requirements of section 401(3), it granted her motion to vacate the judgment. (94 Ill.App.3d 732, 740, 50 Ill.Dec. 621, 419 N.E.2d 729.) Following a legislative amendment to section 401(3), respondent filed a motion to discharge the appeal to this court and return the mandate to the appellate court. The motion was taken with the case.
Respondent argues that the original 1977 act places no "appropriate circumstances" limitation on the circuit court's power to enter bifurcated judgments for dissolution of marriage, a limitation imposed by the appellate court. We disagree. At the time of the proceedings herein, section 401(3) of the Act provided:
"Such judgment [of dissolution] shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property." (Ill.Rev.Stat.1977, ch. 40, par. 401(3).)
Section 401(3) is based upon section 302(a)(4) of the Uniform Marriage and Divorce Act (Uniform Act), which provides that a court shall enter a decree of dissolution of marriage if, "to the extent it has jurisdiction to do so, the court has considered, approved, or provided for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property; or has provided for a separate, later hearing to complete these matters." 9A Unif. Laws Ann. sec. 302(a)(4) (1979).
As pointed out in the historical and practice notes to section 401(3) of the Act, use of the word "reserved" is consistent with the language in the Uniform Act that permits a judgment for dissolution if the court "has provided for a separate, later hearing to complete these matters." (Ill.Ann.Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).) (This language was added to the 1970 draft of the Uniform Act.) In this respect, the intent of the Uniform Act was not to give the trial court unlimited discretion to enter a judgment and hold a later hearing for disposition of the other named factors. The commissioner's comment to section 302(a)(4) of the Uniform Act states:
(Emphasis added.) (9A Unif.Laws Ann. sec. 302(a)(4), Commissioners' Comment, at 123 (1979).)
Thus, the provision providing for a later hearing is inserted to make clear that the court has authority to resolve matters relating to child custody, support, maintenance, and disposition of property, and, if necessary, a hearing after a dissolution order may be held to complete action on these matters. The historical and practice notes to section 401(3) of the Illinois act comport with this interpretation of the Uniform Act by providing that the court may reserve determination of these issues "in appropriate circumstances." Ill.Ann.Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).
The historical and practice notes also provide that ...
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