In Re Marriage of Ayers

402 N.E.2d 401, 82 Ill. App. 3d 164, 37 Ill. Dec. 511, 1980 Ill. App. LEXIS 2514
CourtAppellate Court of Illinois
DecidedMarch 19, 1980
Docket79-452
StatusPublished
Cited by16 cases

This text of 402 N.E.2d 401 (In Re Marriage of Ayers) 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
In Re Marriage of Ayers, 402 N.E.2d 401, 82 Ill. App. 3d 164, 37 Ill. Dec. 511, 1980 Ill. App. LEXIS 2514 (Ill. Ct. App. 1980).

Opinion

Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The appellant, Ronald Ayers, was the respondent in a petition for the dissolution of marriage. He appeals the dissolution of his marriage, the division of the couple’s marital property, and the custody award of the couple’s minor daughter to his wife, Evelyn.

On September 20, 1978, Evelyn May Ayers filed a petition for dissolution of marriage with the Circuit Court of Henry County. On October 26, 1978, her husband, Ronald E. Ayers, filed a response and counterclaim. A hearing was held the same day, at which Mrs. Ayers was the sole witness. After this hearing, the judge found that grounds existed for dissolution. No order of dissolution was entered.

On January 9,1979, a hearing was begun to determine the matters of child custody and the distribution of property. The second portion of the bifurcated proceedings was heard by a different judge than the one who had heard the evidence on the issue of, and grounds for, dissolution. On April 18,1979, the second judge entered an order relating to: (1) Custody and visitation; (2) Medical insurance; (3) Real estate interest; (4) Child support; and (5) Maintenance. This order indicated that a decree of dissolution had previously been entered, although such was not, in fact, the case. Subsequently, the successor judge discovered that his predecessor had not actually entered an order dissolving the marriage, but had merely made findings that grounds for dissolution existed. On May 16, 1979, the petitioner was granted leave to submit an amended judgment order, and on the same day, such amended judgment order was entered. It recited that the court had, through the first judge, found that grounds for dissolution existed. The court was, therefore, entering an order for the dissolution of the marriage, to be effective as of the date of entry. The respondent, Ronald Ayers, appeals from this amended judgment. Two of his contentions on appeal are procedural, and shall be dealt with before further examination of the facts.

The appellant’s first contention is that a successor judge may not enter an order for the dissolution of a marriage based upon the findings of a different judge. The statutory and case law to which he cites the court aré inapposite. The jurisdictions are divided on the question of whether a successor judge may issue an order based upon the factual findings of his predecessor. In those jurisdictions which deny the successor judge this power, or more commonly, which refuse to issue a writ of mandamus compelling the successor judge to issue such an order, the question is not one of jurisdiction. It is clear that a court, and not an individual judge, has jurisdiction over a case. (Department of Public Works & Buildings v. Legg (1940), 374 Ill. 306, 309, 29 N.E.2d 515; People ex rel. Hambel v. McConnell (1895), 155 Ill. 192, 201, 40 N.E. 608; Glasser v. Essaness Theatres Corp. (1952), 346 Ill. App. 72, 89, 104 N.E.2d 510, aff'd (1953), 414 Ill. 180, 111 N.E.2d 124; In re Life and Fire Insurance Co. v. Heirs of Wilson (1834), 33 U.S. (8 Pet.) 291, 8 L. Ed. 949.) Rather, the question is one of due process.

Because an order is not final until actually entered, a judge is free to change his mind as to his intended disposition. Therefore, in some jurisdictions, it is considered inappropriate for a successor judge to assume that the factual findings of his predecessor were final and binding. Because the successor judge did not hear the evidence, he might be reluctant to reconsider the findings, whereas the first judge, it is assumed, might yet have reconsidered. (Wainwright v. P.H. & F.M. Roots Co. (1912), 176 Ind. 682, 97 N.E.8; State ex rel. Ruth v. Hoffman (1947), 82 Ohio App. 266, 80 N.E.2d 235 (mandamus denied, disposition left to discretion of successor judge).) It is to be noted, however, that many jurisdictions, as well as the Federal Rules, find the argument advanced by the respondent unpersuasive. State ex rel. Bloom v. Superior Court (1933), 171 Wash. 536, 18 P.2d 510; United States v. Sundstrom (2d Cir. 1973), 489 F.2d 859, cert. denied (1974), 419 U.S. 934, 42 L. Ed. 2d 163, 95 S. Ct. 205; Fed. R. Crim. P. 25(b); Fed. R. Civ. P. 63.

Although Illinois courts have not ruled directly on this point, such precedents as exist seem to indicate that it is proper in this State for a successor judge to issue an order based upon his predecessor’s findings of fact. (Cf. People ex rel. Hambel v. McConnell (1895), 155 Ill. 192, 201, 40 N.E. 608; Western Land Corp. v. Lichtenstein (1977), 47 Ill. App. 3d 233, 238, 361 N.E.2d 730; Mills v. Ehler (1950), 407 Ill. 602, 95 N.E.2d 848.) Even if this court were to concede the merits of the due process argument, an issue we do not reach, we do not think that this case raises any question of a due process violation. At no time, during or after trial, was the petitioner’s evidence on the grounds for dissolution ever questioned by the respondent. Even the respondent’s motion for post-trial relief, filed April 6,1979, is completely devoid of challenge to the finding of grounds for dissolution. Therefore, it is clear that neither evidence nor argument was presented which might motivate the original judge to change his findings of fact. For this reason, we see nothing improper in the entry of an order dissolving the marriage, by the successor judge, based upon the factual findings of his predecessor.

The appellant next contends that it was error for the judge to enter judgment on the issues of custody and visitation, child support, maintenance, and property distribution on the same day that he entered an order dissolving the marriage. The Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)) provides:

“Contested trials shall be on a bifurcated basis with the grounds being tried first. Upon the court determining that the grounds exist, the court shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial.”

In this case, the court determined on October 26, 1978, that grounds for dissolution existed. The trial was not resumed until January 9, 1979. Therefore, the statute was complied with. A finding that grounds exist for dissolution is not the same as an order of dissolution. Only the finding need be made not less than 48 hours before the proceedings may continue.

The appellant’s third contention is that the court erred in its division of the parties’ property.

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Bluebook (online)
402 N.E.2d 401, 82 Ill. App. 3d 164, 37 Ill. Dec. 511, 1980 Ill. App. LEXIS 2514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-ayers-illappct-1980.