In re Marriage of Zander

653 N.E.2d 440, 273 Ill. App. 3d 669, 210 Ill. Dec. 535, 1995 Ill. App. LEXIS 571
CourtAppellate Court of Illinois
DecidedJuly 25, 1995
DocketNo. 4—94—0969
StatusPublished
Cited by4 cases

This text of 653 N.E.2d 440 (In re Marriage of Zander) 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 Zander, 653 N.E.2d 440, 273 Ill. App. 3d 669, 210 Ill. Dec. 535, 1995 Ill. App. LEXIS 571 (Ill. Ct. App. 1995).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

On December 22, 1993, following the close of all the evidence, Judge John Keith read into the record his detailed findings of fact and oral orders regarding the parties’ action for dissolution of marriage. Judge Keith awarded petitioner (1) custody of the parties’ two minor children with liberal visitation for respondent (the parties also have an adult child residing with petitioner); (2) slightly more than one-half of the parties’ marital assets, including the marital residence free and clear of the mortgage (which was assigned to respondent); (3) child support of $3,600 per month, a sum below the statutory guidelines of $5,455.50 per month; (4) permanent maintenance of $8,300 per month; and (5) attorney fees of $30,000. Judge Keith directed petitioner’s counsel to prepare a written judgment and orders of withholding setting forth the findings of the court. The judge then stated:

"That the terms herein are effective as of January 1, 1994 as to the maintenance and child support provisions, and except for the previous orders regarding the holiday visitation, all other orders of property, child custody, visitation and other items are effective instanter.
Any issues of reconsideration will not be heard by this Court until a written judgement has been entered.”

No written order was entered prior to January 18, 1994, when Judge Keith was removed from the bench per an order of the Illinois Courts Commission. Following petitioner’s motion for entry of judgment and submission of a proposed order, successor Judge Carmody on April 28, 1994, granted the motion and entered judgment nunc pro tunc to February 1, 1994. It is undisputed that Judge Keith decided all of the issues in the case and that the written judgment conforms to the decision made by him.

Respondent filed a motion for rehearing pursuant to section 2 — 1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1203 (West 1992)), challenging maintenance, property distribution, custody, and the propriety of entry of judgment by Judge Carmody. Following a hearing on respondent’s motion, Judge Carmody made a docket entry indicating he had reviewed the transcripts of proceedings before Judge Keith, the authorities cited by the parties, and arguments of counsel, and was allowing the motion in part. He reduced maintenance from $8,300 to $4,500 per month, reduced respondent’s summer visitation with the children from five weeks to four, ordered the marital assets reapportioned such that each party receive equal shares of approximately $911,000 with petitioner to receive $200,000 in income-producing assets (as opposed to the prior provision of $35,000 in income-producing assets), and adopted the findings of Judge Keith in all other material respects. The amended judgment order was entered October 3, 1994.

On appeal, respondent contends he is entitled to a new trial because (1) entry of judgment by a successor judge based on the oral findings and orders of his predecessor was improper, (2) he was denied a right to post-trial reconsideration by the trier of fact, (3) there was a showing of bias on the part of the predecessor judge, and (4) the successor judge erred in calculating the reduction in maintenance. Petitioner cross-appeals the reduction in maintenance provided for in the amended judgment.

There is no dispute that Judge Keith’s findings did not constitute a formalized final judgment. Supreme Court Rule 272 provides:

"If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” (134 Ill. 2d R. 272.)

While respondent admits that Judge Keith did make oral findings and orders relative to all issues in contention, he contends Judge Carmody improperly entered judgment based on those findings because Judge Keith did not intend his findings to be considered a final order and since Judge Carmody was not the trier of fact, he lacked the opportunity to observe the witnesses and make credibility determinations. Respondent cites In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 968, 469 N.E.2d 440, 441, a case inapposite to the facts here because the predecessor judge had announced no orders or findings of fact, and the successor judge entered an order respecting custody based on the transcripts alone. Judge Keith, as the trier of fact, had observed the witnesses, made credibility determinations, and expressly resolved all issues in controversy. Respondent has pointed to nothing in Judge Keith’s oral pronouncement that renders his findings preliminary or tentative, i.e., that entry of a written judgment would be anything more than a ministerial act. Judge Carmody’s entry of a judgment order merely formalized those rulings.

In In re McMahon (1991), 221 Ill. App. 3d 383, 581 N.E.2d 1208, a substitute judge signed an order for involuntary commitment based on the original judge’s oral findings that the respondent was a person subject to involuntary commitment and the pronouncement was a final judgment and an appealable order. (McMahon, 221 Ill. App. 3d at 388, 581 N.E.2d at 1211-12.) This court held it was not error for the substitute judge to sign the order because respondent on appeal did not contest any of the factual findings and there was nothing of record to indicate the original judge would have entered an order different from her oral factual findings. (McMahon, 221 Ill. App. 3d at 390, 581 N.E.2d at 1212-13.) We hold Judge Carmody properly entered judgment based on Judge Keith’s findings and orders.

Respondent next argues he was improperly denied a new trial in his section 2 — 1203 post-trial motion because post-trial review by a successor judge denies him a statutory right to reconsideration by the trier of fact. Respondent cites no authority for this view.

"Judges of a court exercise the power vested in the courts as such and not in them as officers. *** The authority and power of a judge are incident to and grow out of the power of the court itself. The court continues although the term of the judge has terminated, and where he is succeeded by another, the court retains its identity. It is the same court. Any application that can be made to the court may always be made to the court however it is constituted.” Department of Public Works & Buildings v. Legg (1940), 374 Ill. 306, 309, 29 N.E.2d 515, 517.

See also People v. Williams (1990), 138 Ill. 2d 377, 388, 563 N.E.2d 385, 389-90 (appeal is the proper remedy when an appealable order is entered "and no timely reconsideration is obtained from the judge who entered it or from that judge’s successor”).

Section 2 — 1203 provides only that a party may, within 30 days after entry of judgment, file a motion for a rehearing, or a retrial, or to modify or vacate the judgment, or for other relief. (735 ILCS 5/2

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Quintana-Zepeda v. Kucharzyk
2025 IL App (1st) 242055-U (Appellate Court of Illinois, 2025)
CITIFINANCIAL MORTG. CO., INC. v. Carey
2012 OK CIV APP 42 (Court of Civil Appeals of Oklahoma, 2012)
In re Marriage of Shinn
Appellate Court of Illinois, 2000

Cite This Page — Counsel Stack

Bluebook (online)
653 N.E.2d 440, 273 Ill. App. 3d 669, 210 Ill. Dec. 535, 1995 Ill. App. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-zander-illappct-1995.