In Re Marriage of Wilson

549 N.E.2d 1348, 193 Ill. App. 3d 473, 140 Ill. Dec. 476, 1990 Ill. App. LEXIS 85
CourtAppellate Court of Illinois
DecidedJanuary 24, 1990
Docket2-88-0860
StatusPublished
Cited by11 cases

This text of 549 N.E.2d 1348 (In Re Marriage of Wilson) 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 Wilson, 549 N.E.2d 1348, 193 Ill. App. 3d 473, 140 Ill. Dec. 476, 1990 Ill. App. LEXIS 85 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner, Betty J. Wilson, appeals from the orders of the circuit court of Kane County dismissing her second amended complaint for dissolution of marriage and declaration of resulting trust on the ground of res judicata and denying her motion to reconsider. We vacate the court’s judgment and remand the cause for further proceedings.

Petitioner filed a petition for dissolution of her marriage to respondent, Carvel J. Wilson, on December 1, 1981, in the circuit court of Du Page County seeking dissolution, support and maintenance, property distribution and attorney fees. The primary marital asset alleged to have been acquired subsequent to the marriage was a residence located at 1135 McDonald Avenue, Aurora, Illinois.

In January 1982, respondent quitclaimed his interest in this property to Mary Louise Kennedy, the secretary of his attorney, John Plain. Kennedy subsequently executed a quitclaim deed for the subject property back to Carvel J. Wilson in October 1984 and, pursuant to motion and order, the deed presently is being held in escrow by Kennedy’s attorney.

In May 1982, respondent commenced his own dissolution of marriage proceeding in the circuit court for the Thirteenth Judicial Circuit in Hillsborough County, Florida. Summons directed to respondent in June 1982 on the petition for dissolution in Du Page County and the return thereon were quashed and subsequent attempted service of summons on respondent in Florida was never perfected.

Petitioner filed a special and limited appearance and motion to dismiss the Florida proceeding, which was denied, and a judgment dissolving the parties’ marriage was entered in June 1982 in Hillsborough County, Florida; no property rights or rights of support and maintenance were submitted for consideration or determined in that proceeding.

In March 1983, petitioner filed an amended petition for dissolution of marriage in the circuit court of Du Page County acknowledging the Florida dissolution and the quitclaim of the property to Kennedy, noting there was no disposition of the issues of property, support and maintenance or attorney fees in the Florida proceeding, and praying for a determination of same. Petitioner’s affidavit for service by publication on respondent was filed late in March 1983. In June 1983, petitioner filed a second amended complaint for dissolution of marriage and for declaration of resulting trust. John Plain and Mary Louise Kennedy were designated therein as additional parties defendant; both subsequently were dismissed, and they are not parties to this appeal.

In July 1983, Kennedy filed a motion to dismiss petitioner’s complaint on the ground of res judicata in light of the dissolution of the parties’ marriage in Hillsborough County, Florida. In January 1984, Du Page County associate judge Blair Varnes denied Kennedy’s motion to dismiss inasmuch as he found “that no determination was made by the Florida court as to marital property or as to maintenance” and “that the theory of res adjudicata is not applicable due to the fact that the Florida hearing did not involve the same issues [now] pending.” The judge’s order transferred the cause to the Sixteenth Judicial Circuit, Kane County, Illinois, which was the situs of the property and residence of “all parties of interest.”

In January 1986, a certificate of publication was filed showing a publication made in the Geneva Republican on July. 26, August 2 and August 9, 1984. Based upon this publication, petitioner procured the entry of several orders in and by which respondent was defaulted, the real estate was awarded to petitioner, and a supplemental judgment for dissolution of marriage was entered. Respondent filed a special and limited appearance on February 5, 1986, seeking to vacate these orders. The special and limited appearance was denied, and an appeal therefrom was taken to this court. In In re Marriage of Wilson (1986), 150 Ill. App. 3d 885, this court vacated all orders entered by the trial court which were premised upon jurisdiction over respondent due to defects in petitioner’s service by publication.

Respondent was then served with summons in April 1987, and, thereafter, in June, he filed his motion to dismiss petitioner’s second amended complaint on the ground of res judicata based on the prior Florida proceedings. In May 1988, this motion to dismiss was granted, and petitioner’s motion to reconsider pursuant to section 2 — 1203 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203) was denied in August. This appeal followed.

The petitioner argues the court’s order dismissing the cause “disregards and overrules” Judge Varnes’ January 1984 order which, inter alia, transferred venue and found no determination had been made in the Florida proceedings as to the marital property or maintenance and, therefore, the theory of res judicata was inapplicable. Petitioner cites no authority in support of her contention, however, thereby waiving it. (107 Ill. 2d R. 341(e)(7).) Moreover, it is clear that a trial judge is not bound by a prior interlocutory order of another trial judge in the same case and may, after careful consideration, amend or revise orders which it considers to be erroneous. People v. DeJesus (1989), 127 Ill. 2d 486, 494; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113.

The petitioner further contends the court’s dismissal of her second amended complaint is contrary to the law, constituted a manifest abuse of discretion and deprived her of her due-process right to a hearing concerning the issue of the parties’ property rights which precluded the trial court from fashioning a just and equitable distribution of the marital assets.

Respondent contends petitioner has waived the issues of abuse of discretion and due process because she failed to raise them below. Respondent further argues that where petitioner personally appeared by counsel in the Florida proceeding and failed to raise any issue of property rights, the judgment of dissolution of marriage is entitled to full faith and credit and completely bars any subsequent action to determine the parties’ marital property rights.

As to the waiver of due process, we agree petitioner never raised the issue of due process in the trial court, nor, in fact, does she cite any authority in support of her conclusional argument here. It is clear that objections to a motion to dismiss which are not raised in the trial court cannot be raised on appeal. (McWane Cast Iron Pipe Co. v. Aetna Casualty & Surety Co. (1954), 3 Ill. App. 2d 399, 402.) Insofar as abuse of discretion, we note that in determining the propriety of the dismissal of a complaint, this court is concerned only with questions of law presented by the pleadings (Circle Security Agency, Inc. v. Ross (1981), 99 Ill. App. 3d 1111, 1114) and dismissal will be upheld on any basis found in the record (White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 239). Whether to grant a motion to reconsider, however, is committed to the sound discretion of the trial judge. (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766; In re Marriage of Hopkins (1982), 106 Ill. App.

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Bluebook (online)
549 N.E.2d 1348, 193 Ill. App. 3d 473, 140 Ill. Dec. 476, 1990 Ill. App. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-wilson-illappct-1990.