Gile v. Gile

777 N.E.2d 1002, 333 Ill. App. 3d 1161, 268 Ill. Dec. 79, 2002 Ill. App. LEXIS 823
CourtAppellate Court of Illinois
DecidedSeptember 11, 2002
Docket5-01-0209 Rel
StatusPublished

This text of 777 N.E.2d 1002 (Gile v. Gile) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gile v. Gile, 777 N.E.2d 1002, 333 Ill. App. 3d 1161, 268 Ill. Dec. 79, 2002 Ill. App. LEXIS 823 (Ill. Ct. App. 2002).

Opinion

PRESIDING JUSTICE MAAG

delivered the opinion of the court:

Grace Jeanne Gile (petitioner) filed a petition in the circuit court of Williamson County on June 14, 2000, asking the court to declare that a 1963 decree dissolving the marriage of petitioner and William Butler Gile, Sr., was void because it was not signed by the presiding judge and because it contained no provision for child support. The petition alternatively asked the court to enter an order requiring William’s estate to pay child support and establishing the amount of support due and owing with interest. The action was instituted after William’s death. The executor of William’s estate filed a motion for an involuntary dismissal, and the trial court granted the motion and dismissed the petition on the ground that the court lacked jurisdiction because the complaint had not been commenced within the time allowed by law. Petitioner has appealed.

For the purposes of the motion, the following facts are not in dispute. Petitioner and William were married on June 17, 1950. The parties were divorced in November 1955 in Williamson County, Illinois. One child, Grayson Eugene Gile, was born to the couple during the marriage. Petitioner and William remarried on August 29, 1962. On October 24, 1963, petitioner filed and personally presented her petition for the dissolution of the second marriage in the circuit court of Williamson County. William did not appear personally. He filed a written entry of appearance, a waiver of service, and a consent to an immediate hearing and a default. A decree, file-stamped October 24, 1963, states that the divorce was granted and that petitioner was awarded the care, custody, and control of the minor child, then five years old. The decree is unsigned and neither party was able to produce a decree containing the signature of the judge who presided over the divorce. A certified copy of the official registry of the Williamson County circuit court recites the decree, almost verbatim, and indicates that the court approved and entered the decree on October 24, 1963, and that the clerk of the court filed the decree in the record on October 30, 1963.

Neither party remarried. On April 18, 1999, William passed away. An estate was opened and William’s will was admitted to probate in Jackson County, Illinois. The executor of the estate notified Grayson that an estate had been opened and that he was a beneficiary under his father’s will. In his will, Wilham left $1,000 to Grayson and nothing to petitioner.

Petitioner filed an action in the probate division of the Jackson County circuit court. She sought to renounce the will on the grounds that the 1963 divorce decree was void because it was not signed by a judge and it did not provide for child support. The probate judge determined that the validity of the decree should be resolved in the county where the divorce petition was filed. Petitioner then filed an action in the circuit court of Williamson County. The petition alleged that the 1963 divorce decree is a void decree because it was not signed by the presiding judge and because it contained no provision for child support. Petitioner sought an order declaring that the 1963 decree is void and that the parties were never divorced. In the alternative, petitioner sought an order nunc pro tunc that required the payment of child support and that established the amount of support due and owing with interest. The trial court determined that it lacked jurisdiction because the complaint was not commenced within the time allowed by law, and it dismissed the petition.

On appeal, petitioner contends that the trial court erred in granting the estate’s motion for an involuntary dismissal. Before considering whether petitioner’s action was timely filed, we must determine whether the decree is void. A void order may be attacked, either directly or collaterally, at any time. In re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994). A void order or judgment is one entered by a court without jurisdiction of the subject matter or the parties or by a court that lacks the inherent power to make or enter the order involved. In re Marriage of Mitchell, 181 Ill. 2d 169, 177, 692 N.E.2d 281, 285 (1998); In re Estate of Steinfeld, 158 Ill. 2d at 12, 630 N.E.2d at 806. In contrast, a voidable order or judgment is one entered erroneously by the court having jurisdiction and is not subject to collateral attack. In re Marriage of Mitchell, 181 Ill. 2d at 174, 692 N.E.2d at 284. Once a court acquires jurisdiction, an order will not be rendered void merely because of an error or impropriety in the issuing court’s determination of the law, and a court will not lose jurisdiction merely because it makes a mistake in determining the facts, the law, or both. In re Marriage of Mitchell, 181 Ill. 2d at 174-75, 692 N.E.2d at 284.

In this case, petitioner has not claimed that the decree is void because the court lacked jurisdiction over the parties or the subject matter. Petitioner initially contends that the decree is void because there is no evidence that it was signed by the judge. However, aside from references to Illinois Supreme Court Rule 272 (137 Ill. 2d R. 272), petitioner has cited no authority to support her claim that a judicial signature is required to establish the validity of a decree or judgment.

At the outset, we note that Supreme Court Rule 272 went into effect on January 1, 1967. 36 Ill. 2d R. 272. The decree at issue was entered in 1963, several years before Rule 272 was conceived. Prior to the adoption of Rule 272, an oral pronouncement of the court’s decision, made in open court, or a written pronouncement of the court’s decision, approved by the judge and filed with the clerk of the court, constituted the entry of the judgment in a case at law, and a written decision, approved by the chancellor and filed for the record, constituted the entry of the judgment in a case in equity. People ex rel. Schwartz v. Fagerholm, 17 Ill. 2d 131, 135-37, 161 N.E.2d 20, 23-24 (1959). It is the entry of the judgment or decree on the record that gives it validity. Horn v. Horn, 234 Ill. 268, 274, 84 N.E. 904, 906 (1908) (“It is not necessary that the decree should be signed by the chancellor, but its entry on the record by the clerk gives it validity”); Dunning v. Dunning, 37 Ill. 306, 316 (1865) (“there is no law with which we are familiar, requiring the presiding judge of a Circuit Court to sign a decree which he directs the clerk to enter”). A decree was not valid and effective unless it was signed or approved by the chancellor or court and entered on the record. See Jackman v. North, 398 Ill. 90, 105-06, 75 N.E.2d 324, 332 (1947); McKeon v. McKeon, 4 111. App. 2d 515, 524, 124 N.E.2d 564, 569 (1955). Although Rule 272 is not applicable in this case, we note that its adoption did not abrogate this principle. In fact, Rule 272 recognizes that a final judgment may be entered without the signature of the judge. 137 Ill. 2d R. 272; Robertson v. Robertson, 123 Ill. App. 3d 323, 326, 462 N.E.2d 712, 714 (1984).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Reed
686 N.E.2d 584 (Illinois Supreme Court, 1997)
Robertson v. Robertson
462 N.E.2d 712 (Appellate Court of Illinois, 1984)
In Re Estate of Steinfeld
630 N.E.2d 801 (Illinois Supreme Court, 1994)
People Ex Rel. Schwartz v. Fagerholm
161 N.E.2d 20 (Illinois Supreme Court, 1959)
In Re Marriage of Mitchell
692 N.E.2d 281 (Illinois Supreme Court, 1998)
Scott v. Dreis & Krump Manufacturing Co.
326 N.E.2d 74 (Appellate Court of Illinois, 1975)
Chapman, Mazza, Aiello, Inc. v. Ace Lumber & Construction Co.
227 N.E.2d 562 (Appellate Court of Illinois, 1967)
McKeon v. McKeon
124 N.E.2d 564 (Appellate Court of Illinois, 1955)
Jackman v. North
75 N.E.2d 324 (Illinois Supreme Court, 1947)
Dunning v. Dunning
37 Ill. 306 (Illinois Supreme Court, 1865)
Horn v. Horn
84 N.E. 904 (Illinois Supreme Court, 1908)

Cite This Page — Counsel Stack

Bluebook (online)
777 N.E.2d 1002, 333 Ill. App. 3d 1161, 268 Ill. Dec. 79, 2002 Ill. App. LEXIS 823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gile-v-gile-illappct-2002.