In Re Marriage of Stuart

490 N.E.2d 243, 141 Ill. App. 3d 314, 95 Ill. Dec. 770, 1986 Ill. App. LEXIS 1908
CourtAppellate Court of Illinois
DecidedMarch 5, 1986
Docket5-85-0244
StatusPublished
Cited by18 cases

This text of 490 N.E.2d 243 (In Re Marriage of Stuart) 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 Stuart, 490 N.E.2d 243, 141 Ill. App. 3d 314, 95 Ill. Dec. 770, 1986 Ill. App. LEXIS 1908 (Ill. Ct. App. 1986).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Respondent-counterpetitioner, Richard Lee Stuart (hereinafter referred to as respondent) appeals from an amended judgment of dissolution of marriage entered by the circuit court of Christian County. That judgment granted permanent custody of the parties’ two minor children to petitioner-counterrespondent, Shawn Marie Stuart (hereinafter referred to as petitioner). Respondent asserts that the trial court erred in amending its original judgment, under which he was given custody of the children, and that the amended judgment is not supported by the evidence. For the reasons which follow, we affirm.

Respondent and petitioner were married on October 11, 1980. Their first child, Jacob, was born on July 27, 1981. Their second child, Jenni, was born September 21, 1982. From the time of Jacob’s birth to the time of trial, with the exception of a one-month period in 1984, petitioner was unemployed and was engaged full time in the care of the parties’ children. During this same period, she was the sole or primary care provider for the children.

Petitioner and respondent separated on or about May 20, 1984. At this time, they resided in Mechanicsburg. Petitioner filed her petition for dissolution of marriage of May 24, 1984, and was granted an ex parte order of protection directing delivery of the children to her custody. A petition for temporary custody was subsequently filed by petitioner on June 1, 1984. Respondent objected to that petition, opposed extension of the ex parte protective order, and filed a counterpetition for dissolution of marriage on June 4, 1984. A hearing on the temporary custody petition was held on June 25 and 26, 1984, after which the trial court granted temporary custody to petitioner, with visitation rights to respondent.

On February 7, 1985, following a succession of evidentiary hearings, the trial court entered a written judgment of dissolution of marriage, finding both parents fit, but awarding permanent custody to respondent. On February 26, 1985, petitioner filed a timely post-trial motion alleging numerous errors of law and fact. Arguments on the post-trial motion were heard the following day, and on March 1, 1985, the court amended its judgment with respect to child custody, support. and visitation. Under the amended judgment, permanent custody was granted to petitioner, subject to reasonable visitation by respondent. The court’s final, written judgment, as amended, was entered on March 13, 1985. It is from this amended judgment that respondent now appeals.

Respondent suggests that the amended judgment was improper because the requirements of section 610 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 610) were not satisfied. That provision, however, is inapplicable. It pertains only in the case of the exercise of a court’s extraordinary continuing jurisdiction to modify a final custody order when, due to changed circumstances, the childrens’ best interests require modification. (In re Marriage of Herron (1979), 74 Ill. App. 3d 748, 753, 393 N.E.2d 1153, 1156.) Nothing in section 610 restricts the power of the court to vacate or revise a final judgment upon a timely post-trial motion of a party, pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203), on grounds not peculiar to child custody cases. In re Marriage of Herron (1979), 74 Ill. App. 3d 748, 753, 393 N.E.2d 1153, 1156.

Under section 2 — 1203, any party may, within 30 days after the entry of judgment, file “a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203.) The purpose of such post-trial motions is to alert the trial court to errors it has committed and thereby afford it an opportunity for their correction. (See Page v. Estate of Page (1978), 66 Ill. App. 3d 214, 217, 383 N.E.2d 615, 618.) The power to grant the motion rests in the sole discretion of the trial court. In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 931, 409 N.E.2d 461, 465.

There is no dispute that petitioner’s post-trial motion was filed within the 30-day period specified by section 2 — 1203 and that the relief requested was authorized by that provision. Respondent nevertheless argues that the trial court should not have amended its judgment because no “new or changed evidence” was presented at the post-trial hearing. This contention is wholly without merit. Newly discovered evidence is one basis upon which a post-trial motion may be granted (see In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 775, 467 N.E.2d 962, 968), but it is by no means the exclusive basis for granting such a motion. The trial court may act on any error which it perceives must be remedied in order to do justice between the parties. In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 932, 409 N.E.2d 461, 465.

At oral argument respondent’s attorney asserted that the trial court was required by Illinois law to set forth the reasons for its amendment of the judgment. No authority is cited for this proposition, and our independent research has disclosed none. Respondent similarly argues that the amendment of the judgment without a showing of new evidence and without findings by the court of the rationale for the change contravened his rights to due process and equal protection under the fifth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV). Respondent relies solely on Weinberger v. Wiesenfeld (1975), 420 U.S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225, and Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, but those cases are inapposite. Weinberger v. Wiesenfeld (1975), 420 U.S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225, involved a challenge to section 202(g) of the Social Security Act as amended (42 U.S.C. sec. 402(g)), under which benefits based on the earnings of a deceased husband and father covered by the Act were payable, with some limitations, both to the widow and to the couple’s minor children in her care, while benefits based on the earnings of a deceased wife and mother covered by the Act were payable only to the minor children and not to the widower. Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, held that an unwed father of illegitimate children, like other parents, was entitled to a hearing on his fitness before the children could be removed from his custody. We find nothing in either decision which would render the action by the trial court here constitutionally infirm.

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Bluebook (online)
490 N.E.2d 243, 141 Ill. App. 3d 314, 95 Ill. Dec. 770, 1986 Ill. App. LEXIS 1908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-stuart-illappct-1986.