Spears v. Spears

367 N.E.2d 1004, 52 Ill. App. 3d 695, 10 Ill. Dec. 395, 1977 Ill. App. LEXIS 3352
CourtAppellate Court of Illinois
DecidedSeptember 23, 1977
Docket75-544, 76-74 cons.
StatusPublished
Cited by31 cases

This text of 367 N.E.2d 1004 (Spears v. Spears) 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
Spears v. Spears, 367 N.E.2d 1004, 52 Ill. App. 3d 695, 10 Ill. Dec. 395, 1977 Ill. App. LEXIS 3352 (Ill. Ct. App. 1977).

Opinions

Mr. PRESIDING JUSTICE RECHENMACHER

delivered the opinion of the court:

This is a consolidated appeal by Roy R. Spears from certain orders of the trial court assessing an arrearage in alimony, and awarding his wife, Naomi L. Spears, attorney fees for representation in the trial court, as well as for the defense of this appeal.

Naomi Spears filed a complaint for divorce or separate maintenance on August 5, 1971. The defendant, Roy R. Spears, failed to plead or appear, and an order of default and an order substituting new counsel for Naomi Spears, was entered on December 8,1971. There is no transcript or other entry in the record evidencing any further proceédings on that date. On September 28, 1972, no orders having been entered since December 8, 1971, the case came before the court on a “no progress calendar” and the court on its own motion dismissed the case for want of prosecution. No motion to vacate the order of dismissal was ever filed and no court action whatsoever was taken between September 28,1972, and January 26,1973. On January 26, 1973, a decree of divorce was presented to the court by Naomi Spears and entered nunc pro tunc, as of December 8, 1971.

The decree awarded certain property to Naomi Spears, and required Roy Spears to make payments of *100 per week as alimony. On March 7, 1973, Naomi Spears filed a motion for a rule to show cause, based upon Roy Spears’ nonpayment of alimony. On May 9, 1973, Roy Spears appeared with counsel pursuant to a rule to show cause. The parties negotiated and entered into an agreed order which modified the decree as it pertained to alimony, providing in part “that the defendant pay to the plaintiff an amount equal to 10% of his adjusted gross income if said income amounts to *7500 * ° The court duly entered the order and dismissed the rule to show cause. On June 30,1975, Naomi Spears filed a petition for a rule to show cause, based upon Roy Spears’ failure to pay alimony under order of May 9, 1973. Roy Spears filed an answer to this petition asserting that since he had failed to earn *7500 per annum during the period in question there was no arrearage in alimony. After a number of hearings on the issue, at which both parties appeared and presented evidence, the court ruled that there was an arrearage in alimony, and entered an order on August 5, 1975, requiring Roy Spears to pay the arrearages.

Roy Spears subsequently filed a motion to vacate the order of August 5, 1975. In this motion, Mr. Spears, for the first time, contended that the dismissal of the cause for want of prosecution and the parties’ failure to move to reinstate the cause within 30 days deprived the court of jurisdiction, and that the subsequent decree was therefore void; the motion also attacked the trial court’s interpretation of the order of May 9, 1973. The trial court entered an order on September 26, 1975, which modified the court’s assessment of the arrearage in alimony, but denied the motion in all other respects. This order awarded attorney fees to Naomi Spears for post-decree proceedings, and provided that “the decree of divorce entered by the court operated as a vacation of the prior order of dismissal and that said decree was validly entered”. Later, after a hearing on the issue of attorney fees for the appeal, the court awarded Naomi Spears’ counsel $500 for the defense of Roy Spears’ appeal.

On appeal, Roy Spears argues that the trial court’s interpretation of the agreed order of May 9,1973, was erroneous; that the trial court abused its discretion in awarding attorney fees for the post-decree proceedings and for the appeal, and that the court lacked jurisdiction to enter orders adjudicating an arrearage in alimony or awarding attorney fees, since the decree was entered more than 30 days after the entry of the order of dismissal. The issue raised by the latter contention is dispositive.

The applicable principles are well established. Generally, a trial court does not have jurisdiction over either the parties or the subject matter so as to permit it to review or modify its own final order or judgment after the expiration of 30 days from rendition, except pursuant to a petition for post-judgment relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). (See Lectro-Stik Co. v. Stepco Corp. (1974), 19 Ill. App. 3d 900, 902; Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 31, cert. denied (1969), 393 U.S. 1084, 21 L. Ed. 2d 776, 89 S. Ct. 867.) Thus, a court loses jurisdiction to vacate an order dismissing a cause for want of prosecution after the expiration of 30 days following the dismissal, unless a motion to vacate the dismissal and reinstate the cause is filed within the term time. (Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 371; Refiners Petroleum, Inc. v. White Water Petroleum Terminals, Inc. (1965), 64 Ill. App. 2d 46.) A judgment entered without jurisdiction is void, and the jurisdictional defects may be raised at any time. Glover v. Glover (1974), 24 Ill. App. 3d 73, 76; Stone & Adler, Inc. v. Cooper (1974), 20 Ill. App. 3d 576, 579.

To a limited extent, the procedure allowing the entry of a nunc pro tunc order correcting a final order or judgment constitutes an

exception to these rules, since the court retains jurisdiction to enter such an order, even after the expiration of the term. (E.g., In re Estate of Young (1953), 414 Ill. 525; Amendments and Jeofails, Ill. Rev. Stat. 1975, ch. 7, par. 1 et seq.) However, the purpose of a nunc pro tunc order is limited to entering into the record something which was actually done, and it may not be used to supply omitted judicial action, to correct judicial error, or to cure a jurisdictional defect. (Lebanon Trust & Savings Bank v. Ray (1973), 10 Ill. App. 3d 345.) Further, a nunc pro tunc amendment of the record, entered after the expiration of the term, except as to clerical errors or matters of form, must be based upon some note or memorandum from the records or quasi records of the court, and may not be entered in reliance upon the judge’s memory alone. Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 360.

In applying these principles it seems clear that the dismissal order entered in this case, and the parties’ failure to move to vacate the dismissal within 30 days, deprived the trial court of jurisdiction, save for the limited purpose of entering a nunc pro tunc order to amend the record to show what was actually done in the cause. Counsel for Naomi Spears has argued that the entry of the decree herein was merely a “ministerial act” and was thus within the court’s jurisdiction. Moore v. Shook (1916), 276 Ill. 47 and Watson v. Watson (1956), 11 Ill. App. 2d 196, although not cited, involve holdings similar to that urged by counsel. In Moore, a widow filed a bill in equity, after the death of her husband, seeking a review of a decree of divorce entered between the deceased husband and his former wife, and praying for the alteration of the decree so that the date on which the evidence was heard and the decision pronounced in open court would be the effective date of the decree, rather than the date on which the written decree was entered by the court. The widow and her husband had married less than one year after the entry of the decree, in violation of the statute, on the assumption that the decree took effect from the date that the court made its oral decision.

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Bluebook (online)
367 N.E.2d 1004, 52 Ill. App. 3d 695, 10 Ill. Dec. 395, 1977 Ill. App. LEXIS 3352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spears-v-spears-illappct-1977.