2022 IL App (1st) 211018-U No. 1-21-1018 Second Division December 13, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
) Appeal from the In re MARRIAGE OF ) Circuit Court of ) Cook County. JODI SHULGA, ) ) Petitioner-Appellee ) ) and ) ) RONALD SHULGA, ) No. 14 D 10594 ) Respondent, ) ) and ) ) MARY KLEBBA, ) Honorable ) Naomi H. Schuster, Third Party Respondent-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment.
ORDER
¶1 Held: The circuit court’s orders denying third party respondent’s section 2-1401 petition to vacate and dismissing her other section 2-1401 petition to vacate are affirmed No. 1-21-1018
where the circuit court had subject matter jurisdiction and she could not demonstrate that the judgments were void for any reason. The circuit court’s contempt and body attachment orders are also affirmed.
¶2 This case stems from a postdissolution of marriage proceeding, in which petitioner-
appellee Jodi Shulga (Jodi) brought a claim for unjust enrichment against third party respondent-
appellant Mary Klebba (Mary) and sought a constructive trust over the surviving spouse pension
benefits Mary received as the wife of respondent Ronald Shulga (Ronald) at the time of his death.
The circuit court determined that Mary was unjustly enriched, and Jodi was entitled to receive 50%
of the benefits and imposed a constructive trust. This court affirmed the circuit court’s decision on
appeal. In the Marriage of Shulga, 2019 IL App (1st) 182028 (Shulga I).
¶3 Following protracted litigation, Mary filed two petitions to vacate pursuant to section 2-
1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2020)). The circuit
court granted Jodi’s motion to dismiss one petition and otherwise denied the other petition. The
circuit court also entered an order holding Mary in indirect civil contempt for failing to comply
with the court’s orders and later entered a body attachment for Mary for failing to purge her
contempt.
¶4 Mary now appeals from those orders, arguing that (1) the circuit court lacked subject matter
jurisdiction; (2) the surviving spouse benefits were exempt from collection; (3) the circuit court
violated her procedural due process rights; (4) the circuit court violated an executive order issued
in response to the COVID-19 pandemic; and (5) the contempt and body attachment orders should
be vacated because the judgments upon which they were based are void and the circuit court failed
to follow the proper procedure in issuing the body attachment order. For the reasons that follow,
we affirm.
¶5 I. BACKGROUND
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¶6 At the outset, we note, that no report of proceedings nor an acceptable substitute was filed
in this appeal. See Ill. S. Ct. R. 321 (eff. Feb. 1, 1994); Ill. S. Ct. R. 323 (eff. July 1, 2017). We
note, as we much too frequently must, the burden is on the appellant to provide a complete record
on appeal. Foutch v. O’Bryant, 99 Ill. 2d 389-391-92 (1984). Any doubt arising from the
incompleteness will be resolved against the appellant. Id. at 392.
¶7 On November 20, 2014, Jodi filed for divorce from Ronald. According to the petition, Jodi
and Ronald married on May 19, 1991. At the time of their marriage, Ronald was employed as a
firefighter for the city of Evanston.
¶8 An order dissolving the marriage was entered on April 12, 2016 and incorporated a marital
settlement agreement (MSA). Article V of the MSA, entitled “Marital Property,” provided that
Ronald was a participant in the City of Evanston Pension Plan and that Jodi was awarded 50% of
the marital portion of these benefits pursuant to a Qualified Illinois Domestic Relations Order
(QILDRO).
¶9 On July 26, 2016, Ronald applied for line-of-duty disability pension with the Evanston
Firefighters Pension Fund pursuant to section 4-110 of the Illinois Pension Code (Pension Code).
¶ 10 On August 30, 2016, Ronald married Mary.
¶ 11 On October 20, 2016, a QILDRO was entered to implement a division of the parties’
interest in the Evanston Firefighters Pension Fund (Fund). Section III required the Fund to pay
50% per month of Ronald’s retirement benefits to Jodi, and the monthly payments would terminate
upon the death of Ronald or Jodi, whichever first occurs. Section VII directed the Fund to pay Jodi
50% “of any death benefits that become payable to [Ronald’s] death benefit beneficiaries or
estate.” Finally, as relevant to the issues in this appeal, section XII stated the following:
“The Court retains jurisdiction over this matter for all of the following purposes:
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(1) To establish or maintain this Order as a [QILDRO].
(2) To enter amended QILDROs and QILDRO Calculation Court Orders to
conform to the parties’ Marital Settlement agreement or Agreement for Legal
Separation (“Agreement”), to the parties’ Judgment for Dissolution of Marriage or
Judgment for Legal Separation (“Judgment”), to any modifications of the parties’
Agreement or Judgment, or to any supplemental orders entered to clarify the
parties’ Agreement or Judgment.
(3) To enter supplemental orders to clarify the intent of the parties or the Court
regarding the benefits allocated herein in accordance with the parties’ Agreement
or Judgment, with any modifications of the parties’ Agreement or Judgment, or
with any supplemental orders entered to clarify the parties’ Agreement or
Judgment. A supplemental order may not require the Retirement System to take
any action not permitted under Illinois law or the Retirement System’s
administrative rules. To the extent that the supplemental order does not conform to
Illinois law or administrative rule, it shall not be binding upon the Retirement
System.”
¶ 12 On May 11, 2017, Ronald died. On that same day, the Board of Trustees of the Fund
approved Ronald’s application for the disability pension and fixed the effective date of the award
on August 1, 2017. On May 15, 2017, Mary applied to the Fund for surviving spouse benefits as
Ronald’s widow. On June 5, 2017, her application was approved and pursuant to section 4-114 of
the Code (735 ILCS 5/4-114 (West 2016)), Mary began receiving 100% of these benefits from the
Fund, which amounted to $9,169.53 per month, as the surviving spouse of a disabled.
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¶ 13 On December 14, 2017, Jodi filed a petition to join Mary in the dissolution action as a
necessary party, which the circuit court granted. Subsequently, Jodi filed a complaint, which she
later amended, against Mary, claiming unjust enrichment and seeking the imposition of a
constructive trust for any benefits paid by the Fund, including “those relating to Ronald[’s]
disability pension.”
¶ 14 On August 27, 2018, the circuit court held a hearing on Jodi’s complaint, at which time the
court considered the parties’ memoranda, and exhibits. On September 6, 2018, the court issued a
written order. In its order, the court found that Mary was unjustly enriched and ordered
enforcement of the MSA. The order directed the parties to open a trust account for Jodi requiring
Mary to pay 50% of the gross monthly amount that she was receiving from the Fund. Additional
orders were entered on October 1, 2018 and November 26, 2018, clarifying the specific monthly
amount, payment procedure, and the amount of backpay owed from payments previously paid to
Mary, which at that time totaled $71,729.39.1
¶ 15 Mary appealed the circuit court’s orders awarding Jodi 50% of the monthly surviving
spouse benefits. She argued that the court erred because the dissolution judgment and the MSA do
not provide for disability benefits and to do so would violate the Pension Code and the court did
not have the power, equitable or otherwise, to provide any relief not specified in the MSA.
¶ 16 We affirmed the decision of the circuit court. Shulga I, 2019 IL App (1st) 182028. In
particular, we held that the benefits paid to Mary were in substance retirement benefits, not
1 As this court noted in Shulga I, 2019 IL App (1st) 182028, ¶ 20, the circuit court granted relief solely on the pleadings, memoranda, and exhibit. “There was no trial, no motion for summary judgment, and no written motion for judgment on the pleadings.” Id. However, “none of the parties objected to the manner in which the court resolved the complaint[.]” Id. ¶ 21. As such, we construed the circuit court’s judgments as if the court had entered them on a motion for judgment on the pleadings. Id.
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disability benefits, and thus, in accordance with the terms of the MSA, Jodi was entitled to 50%
of the payments. Id. ¶ 27. Further, we held that the circuit court’s decision to impose a constructive
trust was an appropriate remedy to enforce the MSA. Id. ¶ 30.
¶ 17 Regarding Mary’s argument that the circuit court lacked the power to provide relief,
equitable or otherwise, this court found that she had forfeited these arguments as they were never
presented to the circuit court. Notwithstanding such forfeiture, this court reiterated that the circuit
court had “the inherent power to enforce its orders,” and that it retains its equitable powers “
‘[i]rrespective of empowering statutes.’ ” Id. ¶ 30 (quoting Smithberg v. Illinois Municipal
Retirement Fund, 192 Ill. 2d 291, 297-98 (2000)).
¶ 18 Mary filed a petition for leave to appeal to our supreme court, which was denied on January
29, 2020. In re Marriage of Shulga, No. 125452 (Jan. 29, 2020). Her subsequent petition for writ
of certiorari to the United States Supreme Court was likewise denied.
¶ 19 After the mandate issued in Shulga I, Jodi filed a motion for turnover of the judgment
amount of $71,729,39. On July 20, 2020, the circuit court entered an order finding that there
existed no basis to delay the enforcement of the judgment and that the new amount owed to Jodi,
which included statutory interest, totaled $82,129.17. The order gave Mary 30 days to make
alternative payment arrangements; however, if no alternative agreement was reached, Mary would
transfer an additional $4,584.76 per month to pay down the judgment amount. 2
2 We note that, in her brief, Jodi has also referenced an August 6, 2020 e-mail from Mary which was sent to First District Appellate Court Justice Mathias W. Delort regarding her appeal. In a letter, the Clerk of the Appellate Court informed Mary that the e-mail was an improper ex parte communication and directed her to cease all communications with the court in that manner. The letter included a copy of the e-mail. These documents are not in the record on appeal but were included in the appendix of Jodi’s brief. Nonetheless, we cannot consider documents not in the record and, in any case, this document is irrelevant to the merits of this appeal. See Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009) (stating that the reviewing court cannot consider materials that were not included in the record on appeal).
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¶ 20 At this point, Mary’s counsel withdrew. A payment plan was not submitted to the court.
On August 31, 2020, Jodi subpoenaed Mary’s financial records and the court ordered Mary to
submit a financial affidavit, although none appears in the record. Subsequently, Mary, proceeding
pro se, filed an emergency motion to stay any payments to Jodi until the United States Supreme
Court ruled on her petition. She also requested that the September 2020 payment be reimbursed to
her and that the financial discovery be stayed as well. An order was entered continuing in effect
the turnover order and ordering the first payments towards the judgment amount payable on
October 1, 2020.
¶ 21 On October 7, 2020, Jodi filed a petition for rule to show cause and for adjudication of
indirect civil contempt. In her petition, Jodi alleged that Mary had filed complaints with the
Attorney Registration & Disciplinary Commission against Jodi’s counsel and that Mary had failed
to pay any of the required amounts to Jodi for her share of the benefits or any payments towards
the judgment amount. In response, Mary asserted that she had been unable to make the required
payments due to overdue mortgage payments and she requested relief from the judgment owed
until January 1, 2021.
¶ 22 On November 6, 2020, the court issued a rule to show cause against Mary.
¶ 23 On November 19, 2020, Mary filed a “Motion for Clarification and Reconsideration Based
on Evidence and Laws[,]” in which she argues that the court should not have awarded Jodi 50%
of the benefits because the MSA and QILDRO did not give Jodi that right and Jodi did not deserve
the benefits as demonstrated by the attached exhibits. Those exhibits included letters, e-mails, and
text messages from Jodi and other family members. Based on this evidence, Mary requested that
the prior judicial rulings be vacated. On November 25, 2020, the circuit court denied Mary’s
motion.
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¶ 24 On December 9, 2020, the court found Mary to be in indirect civil contempt for willful
failure to obey the court’s order and ordered her committed to the Cook County Jail if she did not
pay 50% of the amount due ($13,254.28) by February 9, 2021.
¶ 25 Subsequently, on December 11, 2020, Mary filed an emergency motion to reconsider,
wherein she alleged that she had a migraine on the day of the hearing and that Jodi’s counsel was
recording her during the hearing. The circuit court found that an emergency had not been
established and denied the motion.
¶ 26 Having retained new counsel, on February 5, 2021, Mary filed the first of two section 2-
1401 petitions. In the February petition she sought to vacate the July 20, 2020 turnover judgment
as void. Therein, she argued that the enforcement proceeding was not brought under the correct
statute or supreme court rule and that it did not comply with the requirements for supplementary
citation proceedings. She further asserted that her right to procedural due process was violated
because she was never provided notice of her statutory right to declare certain income and assets
exempt from being used to satisfy the judgment and that the money received from the Fund was
exempt from being used to satisfy a money judgment pursuant to the Pension Code (40 ILCS 5/4-
135 (West 2020)) and the Illinois Judgment Act (735 ILCS 5/12-1006(a) (West 2020)). Lastly, she
claimed that the turnover judgment and discovery of assets violated Executive Order 2020-25
issued in response to the COVID-19 pandemic.
¶ 27 On February 9, 2021, the court entered an order stating that Mary had complied with the
December 9, 2020 purge order.
¶ 28 On March 4, 2021, Jodi filed her second petition for rule to show cause. Styled as an
emergency petition, Jodi argued that her vehicle was at risk of being repossessed due to Mary’s
failure to pay the judgment amount and monthly payments. The petition alleged that Mary still
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owed $37,992.84 in total. At the time, Jodi’s motion for turnover of the purge funds from the
circuit court clerk was pending before the court.
¶ 29 That day, Mary filed a response in opposition to the emergency petition. Therein, she
incorporated the same arguments as those included in her February petition. She also filed an
objection to the motion for turnover of the purge amount.
¶ 30 On March 25, 2021, Mary filed a second 2-1401 petition to vacate the September 6,
October 1, and November 27, 2018 judgments (the 2018 judgments). Therein, she requested that
the orders be vacated as void pursuant to subsection (f) of section 2-1401. She argued that the
MSA and the QILDRO “did not provide a basis in law” for Jodi’s complaint or for the court’s
award of 50% of the benefits to Jodi, and therefore, the circuit court “did not have the authority or
jurisdiction” to enter the judgments.
¶ 31 On March 29, 2021, the court entered an order granting Jodi’s motion for turnover of the
purge amount.
¶ 32 On April 16, 2021, Jodi filed a combined motion to dismiss Mary’s March petition pursuant
to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)), arguing that Mary’s claims
were barred by res judicata and that her petition was barred by the statutory two-year limitation
on petitions to vacate. She additionally requested sanctions against Mary and her counsel in the
form of attorney’s fees. In response, Mary asserted, inter alia, that her petition was properly
brought under subsection (f) of section 2-1401, and that the court lacked jurisdiction or lacked the
power to enter the orders at issue. As such, Mary maintained that those orders were void. In her
reply, Jodi asserted that the circuit court had subject matter jurisdiction over her claim of unjust
enrichment and that the provisions of the Pension Code upon which Mary relies are not applicable
where the Pension Code was not the basis of Jodi’s complaint.
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¶ 33 On May 27, 2021, following a hearing, the court granted Jodi’s combined motion to dismiss
Mary’s March petition, finding that there was no issue of subject matter jurisdiction as to the 2018
judgments.
¶ 34 On June 21, 2021, Mary was held in indirect civil contempt for the second time and was
ordered to pay a purge of $27,208.56 by August 18, 2021 to avoid commitment to the Cook County
Jail.
¶ 35 On July 23, 2021, the court entered an order denying Mary’s February petition to vacate
the July 20, 2020 turnover judgment.
¶ 36 On August 4, 2021, Mary’s motion to reconsider the court’s dismissal of her March petition
was denied.
¶ 37 Because Mary failed to pay the purge amount, a body attachment order was entered on
August 19, 2021.
¶ 38 This timely appeal followed.
¶ 39 II. ANALYSIS
¶ 40 Mary asserts a number of arguments on appeal. She first claims that the circuit court erred
in dismissing her March petition and denying her February petition because the court’s orders
challenged in those petitions were void for lack of subject matter jurisdiction. Next, she contends
that her February petition should have been granted because the circuit court did not have the
authority to enter the turnover judgment where (1) the benefits were exempt from collection to
satisfy a money judgment; (2) her procedural due process rights were violated during the
supplementary proceedings; and (3) the circuit court failed to comply with the Governor’s
executive order staying supplementary proceedings during the COVID-19 pandemic. Finally, she
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argues that the contempt orders were void because they were based on void orders and because the
circuit court did not follow the proper procedure when entering the body attachment order.
¶ 41 A. Subject Matter Jurisdiction
¶ 42 Mary’s arguments on appeal are grounded largely in her erroneous assertion that the circuit
court lacked subject matter jurisdiction in the original action and thus her March petition should
not have been dismissed as the 2018 judgments were void. Specifically, she contends that “the
circuit court had no authority to ignore the clear statutory language and award [surviving] spouse
benefits to an ex-spouse” and thus, “it was error for the circuit court to find that it had subject
matter jurisdiction and find that [Mary] was unjustly enriched[.]” In response, Jodi asserts that
Mary is merely making the same arguments that she has previously raised on multiple occasions
before the circuit court and this court. Jodi further asserts that the circuit court retained jurisdiction
over the action as set out in the MSA and this court affirmed the circuit court’s authority to provide
the equitable relief for a claim of unjust enrichment.
¶ 43 Preliminarily, we address Mary’s argument that the circuit court erred in dismissing her
March petition “without clarifying whether the decision was under either [section] 2-615 or 2-
619.”
¶ 44 Section 2-619.1 of the Code permits a party to file a motion to dismiss based on both
sections 2-615 and 2-619 of the Code. 735 ILCS 5/2-619.1 (West 2020). A combined motion must
have separate and distinct parts showing the points and grounds relied upon for each section. 735
ILCS 5/2-619.1 (West 2020). A motion to dismiss under section 2-615 challenges the legal
sufficiency of the complaint by alleging defects on its face. In re Estate of Powell, 2014 IL 115997,
¶ 12. A dismissal is proper under this section only when “it is clearly apparent from the pleadings
that no set of facts can be proven that would entitle the plaintiff to recover.” Id. A motion to dismiss
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under section 2-619 admits the legal sufficiency of all well-pleaded facts but allows for the
dismissal of claims barred by an affirmative matter defeating those claims or avoiding their legal
effect. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55.
¶ 45 When ruling on these motions, a court must accept as true all well-pled facts and any
reasonable inferences arising therefrom, but a court need not accept mere conclusions of law
unsupported by fact. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. The
standard of review for a dismissal pursuant to either of these motions is de novo. Id.
¶ 46 Although the moving party must make each section of their combined motion distinct, we
are aware of no authority, and Mary cites to none, requiring that the circuit court specify its basis
for granting a dismissal under section 2-619.1. Regardless, under de novo review, “[w]e may
affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its
reasoning was correct.” Mayle v. Urban Realty Works, LLC, 2022 IL App (1st) 210740, ¶ 39.
¶ 47 Turning to the substantive issue now before us, for the reasons that follow, we find that
Mary’s March petition was properly dismissed under section 2-615 where it is apparent that under
no set of facts would Mary be entitled to the relief requested, i.e., vacating the judgments for
voidness.
¶ 48 Section 2-1401 of the Code allows for the vacatur of a final judgment older than 30 days.
735 ILCS 5/2-1401(a) (West 2020). The purpose of this section is “to give litigants a chance after
judgment is entered to present facts to the court that, if known at the time the judgment was entered,
would have prevented the entry of judgment.” Giles v. Parks, 2018 IL App (1st) 163152, ¶ 19.
Generally, to be legally sufficient, section 2-1401 petitions “must be filed within two years of the
order or judgment, the petitioner must allege a meritorious defense to the original action, and the
petitioner must show that the petition was brought with due diligence.” Sarkissian v. Chicago
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Board of Education, 201 Ill. 2d 95, 103 (2002). The two-year limitation for section 2-1401
petitions provides stability and finality to lawsuits. Crowell v. Bilandic, 81 Ill. 2d 422, 427-28
(1980). However, and significant here, pursuant to subsection (f) of section 2-1401, a party may,
at any time, bring a petition challenging a judgment on the basis that it was void, and the voidness
allegation dispenses with the requirements for a meritorious defense and due diligence. 735 ILCS
5/2-1401(f) (West 2020); LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 11.
¶ 49 Only the most fundamental defects warrant declaring a judgment void, as opposed to
voidable. LVNV Funding, 2015 IL 116129, ¶ 38. “[W]hether a judgment is void or voidable
depends on whether the court entering the challenged order possessed jurisdiction over the parties
and the subject matter.” In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). If jurisdiction is
lacking, any subsequent judgment or order is rendered void and may be attacked directly or
collaterally at any time. LVNV Funding, 2015 IL 116129, ¶ 38. A voidable judgment, however, is
“an erroneous judgment entered by a court that possesses jurisdiction and is not subject to collateral
attack.” Nunez v. C&C Investments of Chicago, LLC, 2022 IL App (1st) 211423, ¶ 21 (citing
Mitchell, 181 Ill. 2d at 174). After a court acquires personal and subject matter jurisdiction, an
order will not be rendered void because of an error or impropriety in the court’s decision. Herrera
v. Herrera, 2021 IL App (1st) 200850, ¶ 37.
¶ 50 A court’s judgment on a section 2-1401 petition alleging that an underlying judgment is
void, like its judgment on a section 2-619.1 motion, is subject to de novo review. Protein Partners,
LLP v. Lincoln Provision, Inc., 407 Ill. App. 3d 709, 716 (2010).
¶ 51 In Shulga I, we expressly affirmed, not only the circuit court’s September 16, 2018 order,
but also the court’s October 1, 2018 and the November 27, 2018 orders. Shulga I, 2019 IL App
(1st) 182028, ¶ 31. Indeed, Jodi argued below that Mary’s reframed claims were barred by res
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judicata. Apparently seeking to avoid any actual or perceived procedural bar to further review of
her claims in either the circuit court or here on appeal, Mary attempts to cloak her claims in the
voidness doctrine. Here, Mary’s March petition was brought pursuant to subsection (f) where she
challenged the circuit court’s subject matter jurisdiction to enter the 2018 judgments. As such, it
was permissible for Mary to bring her petition outside of the two-year limitation period, and she
was not required to set forth a meritorious defense or show due diligence. See LVNV Funding,
2015 IL 116129, ¶ 38 (“Under Illinois law, a party may challenge a judgment as being void at any
time, either directly or collaterally, and the challenge is not subject to forfeiture or other procedural
restraints.”). Our review, then, commences with a determination of whether the circuit court’s
2018 judgments were void for lack of subject matter jurisdiction.
¶ 52 Subject matter jurisdiction concerns the court’s power “to hear and determine cases of the
general class to which the proceeding in question belongs.” In re M.W., 232 Ill. 2d 408, 415 (2009).
Besides an administrative action, for which the circuit court’s power is conferred by statute, “a
circuit court’s subject matter jurisdiction is conferred entirely by our state constitution.”
McCormick, 2015 IL 118230, ¶ 19. Under section 9 of article VI of the Illinois Constitution, the
jurisdiction of circuit courts extends to all “justiciable matters except when the Supreme Court has
original and exclusive jurisdiction relating to redistricting of the General Assembly and to the
ability of the Governor to serve or resume office.” Ill. Const. 1970, art. VI, § 9; see In re Marriage
of Isaacs, 260 Ill. App. 3d 423, 427 (1994) (“[A] trial judge sitting in the domestic relations
division of the circuit court of Cook County has jurisdiction to hear all justiciable issues.”).
¶ 53 A “justiciable matter” is “a controversy appropriate for review by the court, in that it is
definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of
parties having adverse legal interests.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,
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199 Ill. 2d 325, 335 (2002). “[E]ven a defectively stated claim is sufficient to invoke the court’s
subject matter jurisdiction, as ‘[s]ubject matter jurisdiction does not depend upon the legal
sufficiency of the pleadings.’ ” In re Luis R., 239 Ill. 2d 295, 301 (2010) (quoting Belleville Toyota,
199 Ill. 2d at 340). Thus, “the only consideration is whether the alleged claim falls within the
general class of cases that the court has the inherent power to hear and determine. If it does, then
subject matter jurisdiction is present.” (Emphasis in original.) Luis R., 239 Ill. 2d at 301. Against
this backdrop, we proceed with our examination of the nature of the claims now before us and the
relief sought in order to make such a determination. See Cohen v. McDonald’s Corp., 347 Ill. App.
3d 627, 632 (2004) (stating that the determination of subject matter jurisdiction is focused on the
nature of the case and the relief sought).
¶ 54 In January 2018, Jodi filed a complaint alleging that Mary was unjustly enriched because
she was receiving benefits as the surviving spouse of a disabled firefighter, 50% of which Jodi
claimed to be entitled, and Jodi sought the imposition of a constructive trust. The complaint
contained definite and concrete allegations and specifically requested relief in the form of a
constructive trust for 50% of the benefits. The controversy was neither hypothetical nor moot as
Mary was receiving payments from the Fund at the time the complaint was filed, and Jodi and
Mary are clearly adverse parties both with an interest in the same property. The question of whether
Mary had been unjustly enriched by the receipt of these benefits presented a justiciable matter. See
In re Marriage of Armstrong, 2016 IL App (2d) 150815, ¶ 22 (finding that the ex-husband’s
request to modify child support and maintenance presented a justiciable matter). Because Jodi
raised a claim falling within the general class of cases the circuit court has the inherent power to
hear and decide, the circuit court had subject matter jurisdiction to address Jodi’s complaint and
to enter the 2018 judgments. See Luis R., 239 Ill. 2d at 305 (subject matter jurisdiction is invoked
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by the filing of a claim alleging the existence of a justiciable matter). Therefore, the circuit court’s
dismissal of Mary’s section 2-1401 petition to vacate the 2018 judgments was proper.
¶ 55 Nonetheless, Mary contends that the circuit court did not have subject matter jurisdiction
or “authority” over her surviving spouse benefits because the Pension Code provides that a
firefighter’s surviving spouse pension must go to the surviving spouse. See 40 ILCS 5/4-114(j)
(West 2020). This argument is without merit for the following reasons.
¶ 56 First, the Pension Code is irrelevant to the court’s authority over Jodi’s complaint where
Jodi was seeking an equitable remedy based on unjust enrichment, a claim that is not within the
purview of the Pension Code. See Smithberg v. Illinois Mun. Retirement Fund, 192 Ill. 2d at 298
(stating that the circuit court retains its traditional equitable powers, which “cannot be taken away
or abridged by the legislature”). In fact, Jodi did not make any claims specific to the Pension Code
in her complaint.
¶ 57 To this point, we find In re Marriage of Papeck, 95 Ill. App. 3d 624 (1981), analogous.
There, the Fund challenged the circuit court’s jurisdiction to order the pension board to refund
money to a fireman’s ex-wife. Id. at 626. The Fund argued that, pursuant to the relevant statutory
scheme, the pension board was vested with exclusive original jurisdiction over all matters relating
to the Fund, and the circuit court “preempted the [b]oard’s express jurisdictional power[.]” Id. This
court stated that the circuit court has jurisdiction over dissolution actions and the court “had the
power to equitably divide the parties’ property” as it was a justiciable issue. Id. at 627. Similarly,
here, we find that the court’s jurisdiction in this action was not determined by the Pension Code.
¶ 58 Second, this court has already addressed Mary’s arguments regarding the circuit court’s
power and authority in this action. Shulga I, 2019 IL App (1st) 182028, ¶ 30. Specifically, we held
that “the circuit court retains jurisdiction to enforce domestic relations orders” and the “court’s
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decision to impose a constructive trust was an entirely appropriate remedy to enforce the MSA.”
Id. Moreover, the MSA expressly states that “the Court retains jurisdiction for the purpose of
amending this judgment to the extent necessary to satisfy such conditions and implement such
provisions even after the death of one or both parties.” The QILDRO similarly provided for the
circuit court to retain jurisdiction “[t]o enter supplemental orders to clarify the intent of the parties
or the Court regarding the benefits allocated herein in accordance with the parties’ Agreement or
Judgment, with any modifications of the parties’ Agreement or Judgment, or with any
supplemental orders entered to clarify the parties’ Agreement or Judgment.”
¶ 59 Mary puts forth the same subject matter jurisdiction/voidness argument in support of her
challenge to the court’s denial of her February section 2-1401 petition which sought vacatur of the
court’s July 2020 turnover judgment. Her subject matter jurisdiction argument regarding denial of
the February petition fails for the same reasons as the arguments asserted in support of the March
petition.
¶ 60 Notwithstanding Mary’s repeated attempts to cast her claims as involving “subject matter
jurisdiction,” distilled to their simplest form, Mary’s argument here, just as it was in Shulga I, is
that that the circuit court’s judgments violated the Pension Code. Even assuming the court’s ruling
was in some way violative of the Pension Code, such would have no bearing on the court’s subject
matter jurisdiction. The failure to satisfy a certain statutory requirement or prerequisite cannot
deprive the circuit court of its “power” or jurisdiction to hear a cause of action. LVNV Funding,
2015 IL 116129, ¶ 30. Further, a court’s error cannot nullify its jurisdiction over the matter.
Zaferopulos v. City of Chicago, 206 Ill. App. 3d 904, 909 (1990) (“Jurisdiction does not depend
on the correctness of the decision made and is not lost because of an erroneous decision.”);
Herrera, 2021 IL App (1st) 200850, ¶ 37 (“Once a court has acquired jurisdiction, an order will
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not be rendered void merely because of an error or impropriety in the issuing court’s determination
of the law.”). Any error by the circuit court regarding the Pension Code would not render the 2018
judgments void, only voidable. See In re Custody of Ayala, 344 Ill. App. 3d 574, 584 (2003)
(stating that a voidable judgment is one that is entered erroneously either through mistake of fact
or mistake of law or both by a court having jurisdiction).
¶ 61 Having determined that subject matter jurisdiction was proper, we decline to further
engage in a discussion regarding Mary’s additional voidness claims on that basis. In sum, her
petitions to vacate pursuant to subsection (f) of section 2-1401 of the Code were properly dismissed
where she could not demonstrate under any set of facts that the judgments were void.
¶ 62 B. Surviving Spouse Pension Benefits Exemption
¶ 63 Mary next argues that her February petition to vacate the turnover judgment was
improperly denied because “the circuit court lacked authority to allocate the 4-114(j) surviving
spouse pension benefits to satisfy a judgment ***.” Citing to section 4-135 of the Pension Code
(40 ILCS 5/4-135 (West 2020)) and section 1006(a) of the Illinois Judgment Act (735 ILCS 5/12-
1006(a) (West 2020)), she asserts that her surviving spouse benefits are expressly exempt from
collection to satisfy a money judgment. For that reason, she maintains that the judgment is “void.”
¶ 64 At the risk of being redundant, we again note that any error by the court in its application
of the Pension Code would render its judgment voidable, not void. See McCormick, 2015 IL
118230, ¶ 22 (“[T]he fact that litigants or the court may have deviated from requirements
established by the legislature does not operate to divest the court of jurisdiction.”). Regardless, the
cited sections of the Pension Code and the Judgment Act do not apply to the distribution of marital
assets and simply cannot be relied upon to defeat the court’s judgment order.
¶ 65 Section 4-135 of the Pension Code states:
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“No portion of the pension fund shall *** be held, seized, taken subject to, or
detained or levied by virtue of any process, injunction, interlocutory or other order or
judgment, or any process or proceeding whatever issued by any court of this State, for the
payment or satisfaction in whole or in part of any debt, damages, claim, demand or
judgment against any firefighter, or his or her beneficiaries ***.” 40 ILCS 5/4-135 (West
2020).
¶ 66 Section 1006(a) of the Illinois Judgment Act states:
“A debtor’s interest in or right to the assets held in or to receive pensions, annuities,
benefits, distributions, refunds of contributions, or other payments under a retirement plan
is exempt from judgment, attachment, execution, distress for rent, and seizure for the
satisfaction of debts.” 735 ILCS 5/12-1006(a) (West 2020).
¶ 67 Both of these provisions are examples of what has been characterized as antialienation
provisions, the purpose of which is to protect employees and their beneficiaries from creditors.
See In re Marriage of Winter, 387 Ill. App. 3d 21, 31 (2008); see also Smithberg, 192 Ill. 2d at
303-04 (determining the application of a provision prohibiting the alienation of employee
benefits). However, Illinois courts have repeatedly held that a former spouse, who is a co-owner
of pension benefits, is precluded from being labeled a creditor. Winter, 387 Ill. App. 3d at 31; see
also In re Marriage of Carlson, 269 Ill. App. 3d 464, 471 (1995) (finding that the former wife was
a co-owner of the former husband’s pension, and she was not his creditor because she was only
seeking to recover her interest in the pension benefits). This is because an employee’s spouse has
an ownership interest in the pension benefits as marital property, and in the dissolution of the
marriage, those benefits may be allocated between the spouses in light of their respective
ownership interests. Id.; see also In re Marriage of Papeck, 95 Ill. App. 3d 624, 629 (1981). As
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such, antialienation provisions such as the ones set forth above do not bar former spouses’ claims
to those benefits. See In re Marriage of Hackett, 113 Ill. 2d 286, 292 (1986) (finding that section
4-135 did not preclude a holding that the proceeds from the firefighter’s pension were classified
as marital property); see also Papeck, 95 Ill. App. 3d at 629-630 (“[A] divorced wife is not in the
position of a mere ‘creditor,’ and the anti-attachment provision of the Firemen’s Act does not bar
her claim to a certain proportion of the benefits.”).
¶ 68 In fact, section 503 of the Dissolution of Marriage Act (750 ILCS 5/503(b)(2) (West 2020))
has effectively codified these principles of law by expressly providing that “[t]he recognition of
pension benefits as marital property and the division of those benefits pursuant to a [QILDRO]
shall not be deemed to be a diminishment, alienation, or impairment of those benefits.” Therefore,
these antialienation provisions are not applicable under these circumstances because pension
benefits are expressly considered marital property and a former spouse is a co-owner of the
benefits.
¶ 69 Therefore, Mary’s argument that the pension benefits were exempt from collection is
without merit.
¶ 70 C. Procedural Due Process
¶ 71 Mary also argues that her right to procedural due process was violated when the circuit
court proceeded with supplementary proceedings without complying with the applicable statutory
requirements set forth in section 2-1402 of the Code (735 ILCS 5/2-1402 (West 2020)). In
particular, she alleges that Jodi failed to provide notice of her right to declare exempt certain
income and assets and to serve on Mary an income and asset form. Again, she erroneously claims
that this violation rendered the turnover judgment void and again, we note any error would be
merely voidable, not void. See McCormick, 2015 IL 118230, ¶ 22 (“[T]he fact that litigants or the
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court may have deviated from requirements established by the legislature does not operate to divest
the court of jurisdiction.”).
¶ 72 Regardless, section 2-1402 is not applicable here. That statutory provision authorizes
supplementary proceedings by judgment creditors to discover assets or income of the judgment
debtor. However, Jodi is not a judgment creditor, but is rather a co-owner in the benefits. See infra
¶¶ 67-68. And these are not supplementary proceedings to collect a debt. Jodi’s motion for turnover
of the judgment amount was presented pursuant to section 503 of the Dissolution of Marriage Act
(750 ILCS 5/503 (West 2020)), which provides for the disposition of marital property. She did not
institute citation proceedings as Mary contends.
¶ 73 Finally, Mary’s assertions that her due process rights were violated are without merit
where: (1) she could not declare the benefit payments exempt as explained above; (2) she was
given the opportunity to make an alternative payment arrangement; (3) Jodi was not seeking any
income other than that which the court had determined belonged to her as a co-owner; and (4) the
court directed Mary to tender to Jodi a completed financial statement. A review of the record does
not show any infringement of Mary’s procedural due process.
¶ 74 D. Executive Order
¶ 75 Next, Mary argues that the circuit court erred in allowing the motion for turnover and
subsequent proceedings “to advance despite an executive order and an Illinois Supreme Court
Order halting such proceedings.”
¶ 76 On April 14, 2020, the Governor of Illinois issued Executive Order 2020-25 in response to
the COVID-19 pandemic. That order states, in pertinent part, as follows:
“Section 1. During the duration of the Gubernatorial Disaster Proclamations, Section 5/12-
705, 5/12-805, and 5/2-1402 of the [Code] *** that permit the service of a garnishment
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summons, wage deduction summons, or a citation to discover assets on a consumer debtor
or consumer garnishee, are suspended.” Ill. Exec. Order 2020-25 (April 14, 2020).
¶ 77 The Illinois Supreme Court then issued an order staying certain supplementary proceedings
until Executive Order 2020-25 was no longer in effect. That order was in effect until June 26,
2021.
¶ 78 Mary clearly misperceives the nature of these proceedings. Mary is not a consumer debtor
and Jodi is not a judgment creditor. Thus, the executive order did not apply to this action. Further,
the court’s order mandating that Mary pay Jodi a judgment amount involved neither a garnishment
or a wage deduction. Mary’s argument is simply without merit.
¶ 79 E. Contempt Orders
¶ 80 Finally, Mary asserts that the contempt orders and the body attachment order are void
because the underlying judgments upon which they rest are void for lack of subject matter
jurisdiction. As we have explained above, those orders are not void and the circuit court at no point
during these proceedings lacked subject matter jurisdiction. As such, we, again, reject Mary’s
voidness argument.
¶ 81 Mary additionally argues that the body attachment order must be vacated because the bond
issued by the court was over $1,000, which she claims is in violation of section 12-107.5 of the
Code. 3 That section provides:
3 In her reply brief, Mary states that on April 20, 2022, “Jodi voluntarily obtained an order quashing the August 19, 2021 [b]ody [a]ttachment [o]rder” and therefore this issue is moot. Mary includes a copy of the April 20, 2022 circuit court order stating that the August 19, 2021 attachment order has been quashed and the March 19, 2022 attachment order remains in effect. However, this order has not been made a part of the record on appeal, and we do not consider it. See Keener, 235 Ill. 2d at 346 (stating that the reviewing court cannot consider materials that were not included in the record on appeal). Regardless of any mootness, due to the nature of Mary’s litigation in this matter, we find it prudent to address the merits of this issue.
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“No order of body attachment or other civil order for the incarceration or detention of a
natural person respondent to answer for a charge of indirect civil contempt shall issue
unless the respondent has first had an opportunity *** to appear in court to show cause
why the respondent should not be held in contempt.” 735 ILCS 5/12-107.5(a) (West 2020).
¶ 82 It further provides that: “[t]he first order issued pursuant to subsection (a) and directed to
a respondent may be in the nature of a recognizance bond in the sum of no more than $1,000.” Id.
§ 12-107.5(d).
¶ 83 Mary misconstrues the purpose and application of this section. This section governs body
attachment orders issued for the purpose of bringing an alleged contemnor before the court to
answer for the charge of contempt. See Root v. Carter, 2021 IL App (4th) 200157, ¶¶ 16-17
(recognizing that the purpose of a body attachment order is to bring an alleged contemnor before
the court to answer to the charge of contempt). Under those circumstances, a recognizance bond
is appropriate.
¶ 84 Here, the body attachment order against Mary was issued after: (1) she received notice; (2)
she was given the opportunity to show cause why she should not be held in contempt; (3) and she
was adjudicated to be in indirect civil contempt. The court then gave Mary time to purge her
contempt, i.e., pay a portion of the amount owed to Jodi, before it entered a body attachment order
and committed her to the jail. She did not purge her contempt and thus the body attachment order
at issue in this case was entered. As such, section 12-107.5 of the Code is simply not applicable,
and the body attachment order was not issued pursuant to that statutory provision. See In re
Marriage of Harnack and Fanady, 2022 IL App (1st) 210143, ¶ 72 (rejecting this same argument).
¶ 85 Accordingly, this argument also fails, and the circuit court’s contempt and body attachment
orders are affirmed.
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¶ 86 III. CONCLUSION
¶ 87 For the reasons stated, we affirm the judgment of the circuit court.
¶ 88 Affirmed.
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