IN RE MARRIAGE OF CHROBAK No. 2-03-0721.
811 N.E.2d 1248 (2004)
349 Ill.App.3d 894
285 Ill.Dec. 369
In re MARRIAGE OF Karel CHROBAK, a/k/a Charles Chrobak, Petitioner-Appellee, and Anezka Bouz, f/k/a Anezka Chrobak, a/k/a Agnes Chrobak, Respondent-Appellant.
Appellate Court of Illinois, Second District.
June 24, 2004.
Sarane C. Siewerth, Elizabeth A. Theyssen, Schiller, DuCanto & Fleck, Chicago, for Anezka Chrobak.
Phyllis J. Perko, Law Offices of Harlovic & Perko, West Dundee, for Karel Chrobak.
Justice GILLERAN JOHNSON delivered the opinion of the court:
On March 2, 1997, in British Columbia, Canada, the respondent, Anezka Bouz, f/k/a Anezka Chrobak, a/k/a Agnes Chrobak, obtained a divorce from the petitioner, Karel Chrobak, a/k/a Charles Chrobak. Subsequently, in Illinois, the petitioner petitioned for a legal separation (see 750 ILCS 5/402 (West 2002)). On November 5, 1997, the trial court granted the petitioner's petition for a legal separation and incorporated into that order the parties' settlement agreement. Five years later, the respondent petitioned to vacate the legal separation order and the incorporated settlement agreement (see 735 ILCS 5/2-1401(f) (West 2002)), arguing that the trial court lacked subject matter jurisdiction to enter the separation order because the parties were divorced. The petitioner moved to strike and dismiss the petition, claiming, among other things, that the respondent was estopped from challenging the order because she accepted the financial benefits that the settlement agreement gave her. The trial court granted the petitioner's motion to strike and dismiss, and this appeal followed. On appeal, the respondent contends that the trial court lacked subject matter jurisdiction over the proceeding for a legal separation. The petitioner claims that the respondent has waived this issue or is estopped from challenging the trial court's jurisdiction. We agree with the petitioner's estoppel argument. Thus, we affirm.
On December 29, 1962, the parties were married in Chicago, Illinois. They lived in Kane County as a married couple for nearly 30 years and raised three children, who are now adults. In February 1992, the respondent left the petitioner and moved to Canada, where she lived previously. Five years later, the respondent petitioned
On July 24, 1997, the petitioner petitioned for a legal separation in Illinois, acknowledging the Canadian divorce decree. The respondent was personally served with the petition for a legal separation, but she failed to attend any of the proceedings. At the subsequent hearing, the petitioner, who was the only witness to testify, agreed that the Canadian divorce order did not address property or support issues, which the petitioner wished to resolve with the order for a legal separation.
In that regard, the petitioner testified about the parties' settlement agreement. He stated that he entered into the agreement freely, that the agreement was fair, and that the respondent signed the agreement. The agreement provided that the parties would sell their home and share the proceeds, which they did, and they divided the amount they had in their savings and checking accounts. The petitioner stated that the parties split the money he had in a pension, and he provided a survivor's annuity to the respondent. The petitioner also has paid the respondent maintenance since February 1992, and, pursuant to the agreement, he will continue to pay her $1,000 per month until, among other things, she remarries or starts receiving social security. The trial court found that the respondent was in default by consent or otherwise, granted the petition for a legal separation, and incorporated into the judgment the settlement agreement, which it found fair, reasonable, and not unconscionable.
On November 6, 2002, the respondent moved to vacate the judgment for a legal separation and the incorporated settlement agreement, arguing that the judgment was void because the parties were divorced when it was entered. The respondent contended that, pursuant to comity principles, the trial court should have recognized the Canadian divorce order and thereby acknowledged that it lacked subject matter jurisdiction to grant a legal separation. The petitioner moved to strike and dismiss the petition to vacate, arguing, among other things, that the respondent should be estopped from challenging the order for a legal separation and the incorporated settlement agreement because she profited from the order when she accepted maintenance and other benefits. The trial court granted the petitioner's motion to strike and dismiss, finding, among other things, that the respondent accepted the benefits of the settlement agreement. This timely appeal followed.
On appeal, the respondent claims that the trial court lacked subject matter jurisdiction over the legal separation proceedings because the parties were already divorced. The petitioner contends that the respondent has waived the argument or is estopped from challenging the trial court's subject matter jurisdiction.
Before addressing these arguments, we consider our standard of review. The parties disagree about the proper standard to apply. The respondent claims that we should invoke a de novo standard of review because, among other things, the essential issue raised on appeal is whether the trial court had subject matter jurisdiction over the proceedings. See In re Marriage of Devick,
We next address the petitioner's waiver and estoppel arguments. We will first consider the petitioner's claim that the respondent has waived challenging the trial court's lack of subject matter jurisdiction because she participated in the proceedings without objection. A judgment entered by a court that lacked subject matter jurisdiction is void and may be attacked at any time and in any proceeding. Adamson, 308 Ill.App.3d at 764,
Before considering the petitioner's estoppel argument, we note that the special concurrence recites the test for collaterally attacking a void judgment that was delineated in the Restatement (Second) of Judgments § 12 (1982). Our supreme court mentioned this test in In re Marriage of Mitchell,
We now consider whether the respondent is estopped from claiming that the trial court's order for a legal separation, which incorporated the parties' settlement agreement, was void for lack of subject matter jurisdiction. In general, estoppel does not apply to void orders. Cash v. Maloney, 402 Ill. 528, 536, 84 N.E.2d 390 (1949). However, in dissolution proceedings, a party who accepts the benefits of a divorce decree may be estopped from later challenging the order even if the challenge involves a claim that the order is void because the trial court lacked subject matter jurisdiction to enter it. See In re Marriage of Yelton,
The question then becomes whether receiving maintenance and other financial benefits of a legal separation order amounts to "accepting benefits" as used in the estoppel rule. "Accepting benefits" is most often applied in cases where a party remarries in reliance on a divorce decree. See, e.g., In re Marriage of Gryka,
Turning to the facts presented in this case, we hold that the respondent is estopped from attacking the legal separation order, which incorporated the parties' settlement agreement, because she benefitted from the order. Specifically, in June 1997, the respondent signed the settlement agreement, which gave her, among other things, a set amount of maintenance and a portion of the petitioner's pension with a survivor's annuity. The trial court entered the order for a legal separation on November 5, 1997, and incorporated into that order the settlement agreement. Although the respondent did not attend any of the proceedings for the legal separation, she was properly served with notice.
Despite knowledge of the Canadian divorce order and the Illinois proceedings for a legal separation, the respondent never timely challenged the trial court's subject matter jurisdiction. She never objected to the trial court's jurisdiction over the matter during the proceedings, she did not file a posttrial motion challenging the trial court's subject matter jurisdiction within 30 days after entry of the legal separation order, and she did not appeal the legal separation order. Instead of taking any of these steps, the respondent, who has never denied that she received financial benefits of the legal separation order, waited five years after the order was entered before she sought to vacate it. These same types of factors were considered in Yelton, and we determine that they are equally applicable here. See Yelton, 286 Ill.App.3d at 442-43,
The special concurrence asserts that the acceptance of benefits cannot be purely financial. We disagree. Courts have recognized that the estoppel rule is a combination of estoppel and ratification. See In re Marriage of Paulius,
The special concurrence stresses that the estoppel rule has rarely been invoked when neither party remarries. In making this observation, the special concurrence quotes the policy behind the rule, which provides that the rights of children to a marriage and spouses of future marriages must be protected. However, the policy also serves to protect the parties to the dissolution proceedings. Specifically, "it is fundamentally and legally inconsistent for divorced parties to accept the benefits of a dissolution judgment, while later asserting the judgment granting them those benefits never existed as a matter of law." Schlam, 271 Ill.App.3d at 794,
The respondent claims that the estoppel rule should not be invoked and relies on Bratkovich v. Bratkovich,
Several years later, the husband petitioned to expunge the January 1958 order vacating the parties' first divorce decree. The trial court denied the petition, and the appellate court reversed, holding that the order vacating the divorce decree was void because it was entered more than 30 days after the decree. Bratkovich, 34 Ill.App.2d at 129,
We agree with Bratkovich in that the situation in that case did not fall within the estoppel rule as it relates to remarriage. We also conclude that Bratkovich does not fit within the estoppel rule that applies outside of remarriage. Specifically, the husband was not accepting benefits of the divorce decree and was not attacking the validity of the divorce decree. To the contrary, the husband claimed that the divorce decree was valid and that the order vacating the decree was void. That is not the same set of circumstances that is presented in this case. Thus, we determine that the respondent's reliance on Bratkovich is misplaced.
In that context, the husband argued that the wife could not challenge the divorce decree because she accepted $800 per month in maintenance and $32,500 from the sale of the marital residence. The appellate court disagreed, noting that a party cannot attack a divorce decree after enjoying its benefits if the opposing party would be disadvantaged upon reversal of the dissolution order. Reib, 114 Ill.App.3d at 1003, 70 Ill.Dec. 572,
Reib clearly is inapplicable to this case. Specifically, we first note that Reib is factually distinguishable. Here, in contrast to Reib, the respondent is not accepting the dissolution of the parties' marriage while also claiming that the division of the parties' property is inequitable. Rather, the respondent contends that the entire order is void for lack of subject matter jurisdiction. Moreover, Reib involved a situation where the trial court's award greatly disadvantaged the wife. No similar evidence is presented here. More importantly, Reib is legally inapplicable. When a party accepts the benefits of a dissolution judgment, that party is estopped from challenging the judgment as void even in the absence of prejudice to the other party. Schlam, 271 Ill.App.3d at 793,
Because we determine that the respondent is estopped from challenging the trial court's jurisdiction to enter the legal separation order and incorporate the settlement agreement, we will not address the other issues the parties raise on appeal.
Thus, for the reasons stated above, we affirm the judgment of the circuit court of Kane County.
BYRNE, J., concurs.
Justice KAPALA, specially concurring:
I agree with the majority's conclusion that respondent may not successfully challenge the trial court's subject matter jurisdiction. However, I believe that we need not reach the issue of estoppel to so conclude because I find that respondent cannot collaterally attack subject matter jurisdiction in this case. Therefore, I specially concur.
In this case, respondent is attempting to attack the trial court's subject matter jurisdiction five years after the petition for legal separation was granted. Respondent's attack was a petition brought under section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2002)). A petition brought under section 2-1401 is considered a separate legal proceeding, not a continuation of the old proceeding. Sarkissian v. Chicago Board of Education,
As to the first exception, I do not believe that the subject matter of this case was plainly beyond the jurisdiction of the trial court. The Canadian divorce decree could be acknowledged under principles of comity and the decision to recognize the decree would be in the discretion of the trial court. See In re Marriage of Kohl,
Next, I do not find that the second exception is met. The trial court's judgment did not overrule or reverse the Canadian divorce. In fact, the trial court's decision incorporating the marital settlement agreement merely supplemented the Canadian divorce decree by deciding the unresolved issues. I do not find that such a supplementation amounts to infringing upon the authority of the Canadian court.
Accordingly, as our holding in Hulstrom is controlling and none of the exceptions are applicable, I would hold that respondent cannot collaterally attack subject matter jurisdiction in this case. Therefore, I would not rely on estoppel to resolve this case. I note that the majority contends that in Mitchell our supreme court elected not to adopt the Restatement rule enunciated in Hulstrom. I disagree. The court in Mitchell simply stated that "[t]he parties do not ask us to adopt the rule expressed in the Restatement, however, and therefore we need not decide in this case whether to take that step." In re Marriage of Mitchell, 181 Ill.2d at 177,
Moreover, were I to address the estoppel issue, I would find that its application is inappropriate here. It is true that courts have used the doctrine of estoppel by remarriage to bar parties from challenging the subject matter jurisdiction of the trial court. See, e.g., In re Marriage of Yelton,
In my opinion, the policy grounds behind the estoppel by remarriage doctrine support my conclusion. It has long been recognized that the rule of estoppel in marriage cases is "founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce." McDonald, 35 Ill.App.2d at 151,
In other words, the importance of the institution of marriage, and all the rights and responsibilities concomitant with the institution, outweigh the importance of ensuring the integrity of judgments. I simply do not believe that there are similar policy concerns in this case where the benefits accepted did not involve remarriage but were simply financial. The jurisdiction of a court is fundamental to the court's ability to render a decision. Du Page County Election Commission v. State Board of Elections,
The majority comments that the precedent for applying estoppel when financial benefits are present is long established. I once again reiterate that in all but one of the cases cited by the majority there was a remarriage and, thus, the facts of those cases differ in a material sense from this case. Furthermore, an award of financial benefits can easily be undone through repayment, whereas the ramifications when a remarriage is involved cannot be so easily resolved. Moreover, to the extent that the cases cited by the majority do stand for the proposition that financial benefits alone are sufficient to evoke estoppel, I disagree with such a holding for the reasons I have outlined above.
Furthermore, while I recognize that my analysis forecloses a collateral attack in this case, the majority's reasoning forecloses collateral attacks in marriage dissolution cases where such a foreclosure is not warranted. For example, in a case where the trial court adjudicated issues plainly beyond its jurisdiction, the reasoning I employed would allow the collateral attack, as the first exception enunciated in Hulstrom would be applicable. However, under the majority's approach, if a party accepted the financial benefits flowing from such a judgment, he would be estopped from challenging the judgment. In a nutshell, the majority's approach would let stand the judgment of a court, which was plainly without jurisdiction to enter the judgment, simply because money had changed hands. I believe that such a result is antithetical to the principle that the power of a court to render a decision is fundamental. Accordingly, I would not extend the concept of estoppel by remarriage to encompass the facts of this case, where the only benefit accepted is financial.
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