In Re Marriage of Clark

597 N.E.2d 240, 232 Ill. App. 3d 342, 173 Ill. Dec. 532, 1992 Ill. App. LEXIS 1189
CourtAppellate Court of Illinois
DecidedJuly 24, 1992
Docket2-91-0485
StatusPublished
Cited by19 cases

This text of 597 N.E.2d 240 (In Re Marriage of Clark) 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 Clark, 597 N.E.2d 240, 232 Ill. App. 3d 342, 173 Ill. Dec. 532, 1992 Ill. App. LEXIS 1189 (Ill. Ct. App. 1992).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner, Gordon L. Clark, appeals from the judgment of the circuit court of Du Page County granting the motion of the respondent, Barbara P. Clark, to dismiss the cause on the ground oí forum, non con-veniens and to transfer it to the county of Berkshire in the State of Massachusetts. Gordon also appeals from a prior order of the court granting Barbara’s amended motion to vacate the judgment of dissolution. We affirm as to the dismissal and transfer of the cause and do not address the propriety of the court’s order vacating the judgment of dissolution because we lack jurisdiction to do so.

Gordon filed his petition for dissolution of marriage on June 16, 1988, and Barbara subsequently filed a cross-petition for child custody. During the course of discovery and settlement negotiations, it was apparent that Barbara was acting strangely and was not cooperating with her counsel. She never attended a court hearing or participated in a joint conference. On one occasion, the trial of the cause had to be continued due to Barbara’s refusal to participate or cooperate with her counsel. The trial judge suggested that a guardian should be appointed for Barbara but, for reasons the court found not to be attributable to either counsel, this was not done.

The cause came on for trial on October 20, 1989. Barbara refused to participate and was not present at the trial. Gordon was present at trial, although he had moved to Massachusetts earlier that year. Following trial, the court entered its judgment of dissolution of marriage on November 15. On the same date, Barbara’s counsel were granted leave to withdraw due to Barbara’s refusal to cooperate. The dissolution judgment provided for an equitable division of the marital property of the parties, child custody and child support and reserved the issue of maintenance.

Subsequently, on November 22, Gordon petitioned for the appointment of a guardian of Barbara’s estate only when she refused to sign the closing documents on the sale of the marital residence. The guardian ad, litem appointed for Barbara in connection with Gordon’s petition interviewed her on December 6. On that day also, due to unrelated events which occurred several days earlier, Barbara was involuntarily committed to the Elgin Mental Health Center. She was determined two days later to be a person not subject to involuntary admission. Barbara denied during the interview with the guardian ad litem that she was either divorced from her husband or involved in any court proceeding, stated that she did not want to communicate with anyone regarding her condition and said she wanted only to get back in her car with her daughter. The guardian ad litem recommended the appointment of a plenary guardian for Barbara’s person and estate. On December 8, coguardians of both Barbara’s person and estate were appointed.

Barbara moved to Massachusetts on or about December 9, and, by agreement of the parties, the children moved in with their father in Massachusetts. On December 13, Barbara filed a motion to vacate or modify the November 15 judgment of dissolution on the ground she was mentally ill throughout the proceedings and was incapable of comprehending the meaning of the proceedings or the settlement agreement which had been entered into on her behalf. On January 23, 1990, shortly after her move to Massachusetts, Barbara was committed to Berkshire Medical Center in Massachusetts after she was diagnosed as suffering from chronic schizophrenia. The “date of onset” of the chronic schizophrenia was shown on the medical report as “approximately 1979.”

Barbara filed an amended motion to vacate the judgment of dissolution in July 1990. Gordon replied, and, after hearing on November 1, the court vacated the judgment of dissolution and ordered a new trial. The court allowed Barbara 14 days to file her amended answer or otherwise plead and set the cause for trial in January 1991.

On December 3, 1990, Gordon petitioned this court pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306) for leave to appeal the court’s grant of a new trial. This court first mistakenly struck the petition for leave to appeal as untimely, then granted Gordon’s motion to reconsider and, upon doing so, denied the petition for leave to appeal on February 5,1991.

While Gordon’s petition for leave to appeal was pending, and within the time allotted her for filing an amended answer to the petition for dissolution, Barbara filed a motion to dismiss based on forum non con-veniens or, in the alternative, requested a transfer of the cause to Massachusetts. It was alleged therein that, since the filing of the petition for dissolution, both of the parties and their children had moved to Massachusetts and, under Massachusetts law, Massachusetts properly had jurisdiction of the parties and the cause of action. It was further alleged the parties owned no real property in the State of Illinois and had no contacts with the State of Illinois other than the instant dissolution cause and funds from the sale of the marital residence which were held in escrow by Barbara’s Illinois coguardian.

Because the court did not receive Gordon’s response to Barbara’s forum non conveniens motion, the court granted Barbara’s motion to dismiss but later vacated its dismissal on Gordon’s motion. Gordon responded to the motion admitting, in pertinent part, Massachusetts’ probable jurisdiction of the cause of action and the parties if the cause were to be filed there.

After a hearing on March 26, 1991, the court granted Barbara’s motion for transfer of the cause on the ground of forum non conveniens and ordered that the cause and the escrowed funds be transferred to Massachusetts. It also declared moot a pending motion to approve the distribution of the escrowed funds. Gordon timely filed a notice of appeal from the court’s March 26 order, but we denied as untimely his subsequent motion, filed five months later, seeking to amend his notice of appeal to include the court’s November 1, 1990, order vacating the judgment of dissolution.

In this appeal, Gordon seeks review and reversal of the trial court’s order (1) vacating the judgment of dissolution and (2) dismissing the cause under the doctrine of forum non conveniens and transferring it to Massachusetts. We find we lack jurisdiction to address the merits of the issue of the trial court’s vacatur of the judgment of dissolution for two reasons. First, Gordon’s notice of appeal does not specify his appeal was taken from that judgment but, rather, only from the court’s order transferring the cause to Massachusetts. As noted above, we rejected as untimely his motion to amend his notice of appeal to include that order vacating the judgment of dissolution, and we plainly did not err in that rejection. Gordon’s five-month delay in seeking the amendment far exceeded the 30-day time limits provided in Supreme Court Rule 303. 134 Ill. 2d Rules 303(cX4), (e).

Second, our denial of Gordon’s earlier petition for leave to appeal the trial court’s order for a new trial pursuant to the provisions of Supreme Court Rule 306 is not subject to relitigation before this court. (See Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 221-23.) Rule 306 provides the exclusive means of reviewing the grant of a new trial. (Ill. Ann. Stat., ch. 110A, par.

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Bluebook (online)
597 N.E.2d 240, 232 Ill. App. 3d 342, 173 Ill. Dec. 532, 1992 Ill. App. LEXIS 1189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-clark-illappct-1992.