Smolinski v. Vojta

• Decision Date: 21 February 2006
• Docket Number: No. 1-04-3851.,1-04-3851.
• Citation: 844 N.E.2d 989
• Parties: Thomas S. SMOLINSKI, Plaintiff-Appellant, v. John C. VOJTA and DeLea Harris, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

844 N.E.2d 989

Thomas S. SMOLINSKI, Plaintiff-Appellant, v. John C. VOJTA and DeLea Harris, Defendants-Appellees.

No. 1-04-3851.

Appellate Court of Illinois, First District, First Division.

February 21, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas S. Smolinski, pro se.

Justice GORDON delivered the opinion of the court:

Plaintiff, Thomas Smolinski, appeals from the denial of his "Motion for Judgment" in post-divorce-decree proceedings, which allegedly challenged an award of interim attorney fees in the preceding divorce action. We dismiss the appeal for lack of jurisdiction.

FACTUAL BACKGROUND

DeLea Harris, formerly DeLea Smolinski, filed a petition for dissolution of marriage from her husband, plaintiff, on the grounds of irreconcilable differences, on June 12, 2000. This pleading commenced over three years of contentious litigation. As shall be seen, the substantive details of this litigation do not impact the review of the dispositive issue at hand.

On March 26, 2001, the circuit court entered an order for interim attorney fees for DeLea's counsel, to be paid by plaintiff, in the amount of $5,000. Plaintiff moved the court to reconsider its order, contending that he could only comply with the order through selling his assets and arguing that DeLea had misstated both her available resources and necessary expenditures to the court. The court denied the motion to reconsider and ultimately held plaintiff in contempt, ordering him jailed for his failure to pay the interim attorney fees. Plaintiff went on to post bail in the amount of $5,000, which was subsequently released to DeLea's counsel, Vojta, on November 26, 2001.

The circuit court entered a final judgment for dissolution of marriage on December 18, 2003. The order observed "[t]hat the parties have consented to the entry of the Judgment for Dissolution of Marriage after the pre-trial conference held with this Court and following the recommendations of this Court." The order further provided that "each party shall keep all property currently in each others possession" and that "each party shall be responsible for their own attorney's fees."

Postdecree litigation, generally pertaining to the custody of the former couple's two children, began less than one month later. However, on November 22, 2004, over 11 months after the entry of the judgment of dissolution, plaintiff filed a "Petition for Judgment," unrelated to the custody litigation and allegedly attacking the prior award of interim attorney fees. The circuit court set the petition "for presentation" on December 6, 2004. On December 6, 2004, the court "being fully advised," per its order, denied the petition. Plaintiff filed his notice of appeal from this order on January 18, 2005.

ANALYSIS

On appeal, plaintiff contends that the circuit court erred in its determination that DeLea could not pay her own attorney fees. He further argues that interim attorney fees are statutorily contemplated as a loan to be repaid to the paying party at the conclusion of the divorce proceedings. We conclude that we are not able to proceed to the merits of these contentions because we lack jurisdiction over this appeal by reason of the fact that plaintiff's postjudgment pleading is an impermissible collateral attack on an issue that should have been appealed directly, and because we possess an inadequate record on appeal.

Even where jurisdiction is not raised by the parties, we "have an independent duty to ensure our jurisdiction is proper." Department of Public Aid ex rel. K.W. v. Lekberg, 295 Ill.App.3d 1067, 1069, 230 Ill.Dec. 416, 693 N.E.2d 894 (1998); see also O'Donnell v. Sears, Roebuck & Co., 71 Ill.App.3d 1, 5-6, 27 Ill.Dec. 110, 388 N.E.2d 1073 (1979) ("None of the parties have raised the jurisdiction of this court as an issue. However, the parties cannot confer jurisdiction where none exists"). Plaintiff's notice of appeal, dated January 18, 2005, requests review of the December 6, 2004, order denying his petition. The notice is therefore filed well beyond 30 days after the denial of his petition and is untimely under Supreme Court Rule 303(a)(1). 107 Ill.2d R. 303(a)(1) ("the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from"). "Compliance with the deadlines for appeals set forth in Supreme Court Rule 303 is mandatory and jurisdictional" (Berg v. White, 357 Ill. App.3d 496, 499, 293 Ill.Dec. 579, 828 N.E.2d 889, 892 (2005)), so that we have no choice but to dismiss this tardy appeal.

Even if the notice of appeal from the order of December 6, 2004, denying his petition were timely, plaintiff could not prevail on that petition because, as shall be demonstrated, that petition could only be viewed as a collateral attack on the judgment of dissolution entered on December 18, 2003, and, as a collateral attack on such judgment, it could not raise matters that could have been raised in a direct appeal from that judgment.¹ Since it was filed 11 months after the final judgment in that proceeding was entered, it is clear that the petition for judgment urged by defendant would have no viability with respect to the original divorce proceedings except as a collateral attack upon it in the nature of a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)). The trial court would have been without jurisdiction to entertain any direct challenge since more than 30 days had passed from the time of the judgment of dissolution. See 735 ILCS 5/2-1203(a) (West 2004) ("In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief"); In re Marriage of Baltzer, 150 Ill.App.3d 890, 895, 104 Ill.Dec. 196, 502 N.E.2d 459 (1986) ("The court in which a dissolution proceeding is pending has jurisdiction over the matter of attorney fees and continues to do so for a period of 30 days after entry of its final judgment"). The intervening postdecretal proceedings do not extend the original divorce proceeding as to the interim attorney fees which were terminated by the final order of dissolution. See 2 H. Gitlin, Gitlin on Divorce § 17-1(a), at 17-4 (3d ed. 2005) ("In a judgment of dissolution of marriage * * * some provisions are nonmodifiable and others are modifiable and dynamic. Those provisions establishing the property rights of the parties are nonmodifiable, while those provisions relating to custody of children, child support, and maintenance are viable and dynamic and therefore can be modified by the court"); 750 ILCS 5/510(a) (West 2004) (providing for postdecree modification of maintenance); 750 ILCS 5/610(b) (West 2004) (providing for postdecree modification of maintenance); 750 ILCS 5/501(c-1)(2) (West 2004) (providing that "interim [attorney fee] awards * * * shall be deemed to have been advances from the parties' marital estate"). Therefore, the filing of this petition for judgment in post-decretal proceedings addressing child custody cannot revest the court with jurisdiction over the attorney fees resolved in the final order of dissolution. Consequently, although not so identified by the pro se plaintiff in his pleading or appeal, the only basis on which plaintiff's petition can be given any jurisdictional viability is to view it as a collateral attack in the nature of a section 2-1401 petition. See 735 ILCS 5/2-1401 (West 2004). Such a petition permits judgments to be collaterally attacked by reason of "facts not appearing in the record which, if known to the court at the time judgment was entered, would have prevented its entry" (Lacey v. Lacey, 24 Ill.App.3d 776, 778, 321 N.E.2d 524 (1974)) and which "`through no fault or negligence of [the petitioner], * * * [were] not made to appear to the trial court' [Citation.]" (Smith v. Airoom, Inc., 114 Ill.2d 209, 222, 102 Ill.Dec. 368, 499 N.E.2d 1381 (1986)), or to "prevent enforcement of a * * * judgment when it would be unfair, unjust, or unconscionable" (Smith, 114 Ill.2d at 225, 102 Ill.Dec. 368, 499 N.E.2d 1381; see also In re Marriage of Gurin, 212 Ill. App.3d 806, 156 Ill.Dec. 877, 571 N.E.2d 857 (1991) (holding that property settlement could be reopened when obtained by fraud)), for up to two years following the judgment (see 735 ILCS 5/2-1401(c) ("the petition must be filed not later than 2 years after the entry of the order or judgment"); 2 H. Gitlin, Gitlin on Divorce § 16B-1.5, at 16B-2.1 (3d ed. 2005) ("Section 2-1401 of the Code of Civil Procedure governs the vacatur of all judgments 30 days after entry")).

However, as a section 2-1401 petition, the plaintiff's petition must fail because its grounds, namely, his relative indigence compared to his wife and her alleged misrepresentations as to her income and obligations, were fully argued before the circuit court and, as such, could have been raised in a direct appeal which was not forthcoming. Accordingly, they cannot now be invoked through a collateral attack under section 2-1401. Universal Outdoor, Inc. v. City of Des Plaines, 236 Ill.App.3d 75, 80-81, 177 Ill.Dec. 515, 603 N.E.2d 585 (1992) ("A section 2-1401 petition is not intended to provide for review of an order from which a party could have taken a timely appeal, and such a petition is not to be invoked as a substitute for a party's right to appeal"); Stacke v. Bates, 225 Ill.App.3d 1050, 1053, 168 Ill.Dec. 81, 589 N.E.2d 195 (1992) (precluding challenge to attorney fees in a divorce proceeding under a section 2-1401 petition); accord Jones v. Jones, 32 Ill.App.2d 64, 176 N.E.2d 635 (1961) (abstract of op.).

Finally, were we not required to dismiss this appeal on jurisdictional grounds, we would still be compelled to affirm based on the state of the record. Here, we do not even have...