In Re Marriage of Gluszek

523 N.E.2d 126, 168 Ill. App. 3d 987, 119 Ill. Dec. 658, 1988 Ill. App. LEXIS 443
CourtAppellate Court of Illinois
DecidedApril 13, 1988
Docket85-1110
StatusPublished
Cited by11 cases

This text of 523 N.E.2d 126 (In Re Marriage of Gluszek) 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 Gluszek, 523 N.E.2d 126, 168 Ill. App. 3d 987, 119 Ill. Dec. 658, 1988 Ill. App. LEXIS 443 (Ill. Ct. App. 1988).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Respondent, Andrew Gluszek, appeals from those portions of a judgment for dissolution of marriage relating to the division of marital property. Andrew also appeals from an order awarding petitioner, Dorothy Gluszek, temporary maintenance and attorney fees and an order striking certain pleadings filed by Andrew and barring him from testifying at trial. On appeal, Andrew claims that (1) the trial court erred by ordering that the provision in the divorce decree for permanent maintenance be nonmodifiable; (2) the award of temporary maintenance is void for lack of personal jurisdiction; (3) the trial court abused its discretion in imposing discovery sanctions against him; (4) the trial court erred in overvaluing his business by $27,000; and (5) the trial court abused its discretion in awarding attorney fees to Dorothy’s former attorney. We affirm.

The Gluszeks were married for approximately 29 years and have two children, both emancipated. At the time of the dissolution of their marriage, Andrew was 53 years old and in good general health. Andrew is employed by Chicago Rotoprint Company. Dorothy was 60 years old and had been unemployed since 1975. Dorothy is in poor health and suffers from arthritis, migraine headaches, allergies and an ulcer. Dorothy receives medical treatment for these ailments. The severity of these ailments, particularly the arthritis, prevents Dorothy from working in a factory, the only employment she is trained to do.

We initially note that the issue of whether the trial court erred by ordering that the provision for permanent maintenance be non-modifiable has been conceded in favor of Andrew. As a result we need not address the merits of this argument.

We first examine Andrew’s contention that the trial court lacked personal jurisdiction to enter an award of temporary maintenance and attorney fees in Dorothy’s favor.

Our review of the record reveals that Dorothy filed an emergency petition for temporary relief on September 6, 1983. Andrew was served with notice of this motion. On the same date, the trial court entered an order granting Dorothy $150 a week in temporary maintenance and $300 in temporary attorney fees. Thereafter, Dorothy filed a petition for rule to show cause against Andrew for his failure to comply with the court order. On September 23, after Andrew was served with process, the court conducted a hearing on Dorothy’s motion. Both Dorothy and Andrew appeared at the hearing and testified. At the conclusion of the hearing, the court entered an order which required, among other things, that Andrew pay $150 per week to Dorothy as temporary maintenance.

Andrew initially argues that the court’s order of September 6, 1983, was void for lack of personal jurisdiction over Andrew. Andrew further argues that the orders entered by the trial court subsequent to the September 6, 1983, order dealing with maintenance and attorney fees are likewise void for lack of personal jurisdiction.

Essential to the validity of any judgment by the trial court is the court’s jurisdiction over the subject matter of the litigation and the parties to the proceeding. In the absence of a personal appearance by a named party, personal jurisdiction may only be acquired by service of process in the manner directed by statute. (Kappel v. Errera (1987), 164 Ill. App. 3d 673, 677.) Service of process may be obtained by either summons (Ill. Rev. Stat. 1985, ch. 110, pars. 2—203, 2—204, 2—205) or by publication and mailing (Ill. Rev. Stat. 1985, ch. 110, par. 2—206); Any “ ‘judgment rendered without service of process, either by summons or by publication and mailing, where there has been neither a waiver of process nor a general appearance by the defendant, is void regardless of whether the defendant had actual knowledge of the proceedings.’ ” Rappel, 164 Ill. App. 3d at 677, quoting State Bank v. Thill (1986), 113 Ill. 2d 294, 308, 497 N.E.2d 1156, 1161.

In the instant case, Andrew was not served with process until after September 9, 1983. As such, Andrew is correct in his assertion that the trial court lacked jurisdiction over his person at the time the September 6, 1983, order was entered. However, on September 23, the court conducted a hearing on Andrew’s refusal to comply with the court’s September 9 order. At that hearing, Dorothy and Andrew appeared in court and testified concerning the issues of temporary maintenance and attorney fees. The trial court then entered an order which required Andrew to pay temporary maintenance and temporary attorney fees. As Andrew was subject to the court’s jurisdiction when this order was entered, the order was not void merely because the hearing originated as a means of enforcing the September 9 order. To the contrary, once Andrew was properly before the court, the court possessed the authority to fashion any relief for Dorothy that it deemed- appropriate. We, therefore, find no merit in Andrew’s argument that the trial court lacked the authority to award Dorothy temporary maintenance. Moreover, we have considered the remaining arguments Andrew has raised concerning this issue and likewise find them to be without merit.

Andrew next argues that the trial court erred in striking his pleadings and barring his testimony for failure to comply with discovery. We disagree.

Our review of the record establishes that on October 26, 1983, Dorothy served Andrew .with interrogatories. On November 15, 1983, Andrew tendered incomplete responses to Dorothy’s interrogatories. Thereafter, Dorothy filed several petitions to compel Andrew to file complete responses to her interrogatories. The result of each hearing on these petitions was a court order requiring Andrew to provide appropriate responses. Andrew repeatedly failed to comply with the court’s orders. Finally on September 4, 1984, by agreement of the parties, the court entered an order which directed Andrew to answer certain interrogatories dealing with finances of the parties within 10 days. The court also continued the case until September 26, 1984, for a hearing on Andrew’s compliance with the order. At that hearing, it was disclosed, to the trial court that Andrew had again failed to comply with the court’s order. The court then issued a rule to show cause against Andrew, returnable on October 3,1984.

On October 3, counsel for both parties again appeared before the trial court. At that time, Andrew’s attorney informed the court that Andrew had nothing to add to the interrogatories. The court then advised Andrew that he was required to file a pleading to that effect and unless the interrogatories were answered by 5 that evening, sanctions would be imposed. On October 5, 1984, Andrew filed amended answers to Dorothy’s interrogatories. These answers were likewise incomplete. On October 5, 1984, counsel for Dorothy appeared béfore the court pursuant to the court’s order. Andrew and his counsel failed to appear. After being advised that Andrew had failed to comply with the court’s order, the trial court entered an order striking Andrew’s pleadings and barring his testimony at trial pursuant to Supremé Court Rule 219(c) (107 Ill. 2d R. 219(c)). Thereafter, at trial, the court asked Andrew if he had filed a motion to vacate the order barring his testimony. Andrew’s attorney indicated that no motion had been filed.

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Bluebook (online)
523 N.E.2d 126, 168 Ill. App. 3d 987, 119 Ill. Dec. 658, 1988 Ill. App. LEXIS 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-gluszek-illappct-1988.