In re Marriage of Yelton

                                             THIRD DIVISION
                                             January 22, 1997



1-95-1109

IN RE THE MARRIAGE OF              )    Appeal from
MARY ANN YELTON,                   )    the Circuit Court
                                   )    Cook County
     Petitioner-Appellant,         )    
                                   )
     v.                            )    
                                   )
DAVID HOLTZMAN,                    )    
                                   )    The Honorable
     Respondent-Appellee.          )    Richard Kelly
                                   )    Judge Presiding.

     JUSTICE LEAVITT delivered the opinion of the court:     
     The petitioner, Mary Ann Yelton, obtained a divorce from the
respondent, David Holtzman, after twelve years of marriage.  At
the time the trial judge entered the order of dissolution, he was
unaware that David had Alzheimer's disease.  As a result, he
distributed the marital assets in accordance with a stipulated
"marital settlement agreement" (the Agreement) entered into by
the parties.  Subsequently, a guardian was appointed for David.
Pursuant to the Guardian's petition pursuant to section 2-1401 of
the Code of Civil Procedure (735 ILCS 5/2-1401), a different
judge declared the Agreement void.  The judge then held a trial,
after which he redistributed the couple's property.  Mary Ann now
appeals from the judgment redistributing the property.
     The relevant facts are as follows.  In April 1991, a
neurologist informed Mary Ann, David, and Susan Holtzman, David's
daughter from a previous marriage, that David was in the
beginning stages of Alzheimer's dementia.  In May 1991, a
psychiatrist confirmed that David suffered from Alzheimer's
disease and depression.  Shortly after receiving the diagnosis,
Mary Ann retained an attorney to draft the Agreement, which Mary
Ann and David signed on June 27, 1991.  Mary Ann did not inform
the attorney that David had Alzheimer's disease. 
     The Agreement provided that Mary Ann would retain a home
located in LaGrange, Illinois, as well as all household
accessories and a 1984 Buick station wagon.  She received two
checking accounts containing $6,000; three certificates of
deposit with a total value of $168,970.83; and Individual
Retirement Accounts valued at $13,000.  The Agreement also
awarded her all of the common stock in two companies she
operated: Carrier Audit, Inc. and Accu-Rate Traffic, Inc.  These
entities earned combined profits of $36,995 in 1990.  The
Agreement provided that David retain furniture from a Chicago
residence; a 1989 Buick Regal; and the proprietorship of Morgan
Metal, a company that he operated, but which was no longer
profitable.  Both parties waived maintenance.     
     On July 16, 1991, Mary Ann filed for a divorce pursuant to
the Marriage and Dissolution of Marriage Act (the Act).  Ill.
Rev. Stat. 1991 ch. 40, par. 1-101 et seq. (now 750 ILCS 5/101 et
seq.)  On July 31, 1991, the judge entered an order of
dissolution on the ground of irreconcilable differences pursuant
to section 401(a)2 of the Act.  750 ILCS 5/401(a)2.  Mary Ann was
the only witness to testify at the hearing on the petition. 
Neither David nor counsel representing his interests attended the
hearing. Rather, Mary Ann's attorney presented a stipulation
signed by both parties stating that the case was uncontested. 
The judge also relied on Mary Ann's testimony that she and David
had been living apart for two years and that the marriage was
irretrievably broken.  The order of dissolution incorporated the
Agreement and its distribution of marital assets.  David and Mary
Ann did not advise family members of their divorce until November
1991.  
     On August 18, 1992, a probate judge appointed Susan Holtzman
(the Guardian) as David's legal guardian.  Subsequently, the
Guardian learned of the circumstances surrounding the divorce. 
On September 22, 1992, she filed a section 2-1401 petition
seeking to vacate the judgment incorporating the Agreement.
     On November 16, 1993, after a hearing, the judge granted the
petition and declared the Agreement void.  The judge found that
Mary Ann's testimony at the dissolution hearing had been
misleading and that she intentionally omitted important
information.  Her testimony that the parties were separated
longer than two years gave the impression David was living
independently and was capable of properly managing his affairs. 
The judge indicated that Mary Ann had misled the court about
David's financial and physical condition.  Additionally, Mary
Ann's testimony that the marriage irretrievably broken was
misleading because the parties maintained a relationship and
that, subsequent to the separation, David was living in Mary
Ann's residence on a full time basis.  
     Furthermore, the judge found misleading Mary Ann's
statements that David had signed the Agreement freely and
voluntarily.  The court found that when David signed the
Agreement, he lacked the capacity to understand the consequences
of the property division and waiver of maintenance.  The judge
noted that Mary Ann had a fiduciary relationship to David.  David
trusted her and was dependent on her at the time they signed the
Agreement.  Mary Ann initiated the Agreement, and the judge found
that she exerted undue influence in obtaining David's signature. 
The judge concluded that the secrecy of the divorce proceeding
was the result of Mary Ann's planning and was to her benefit.   
     The judge also entered findings regarding the Agreement's
distribution of marital assets.  He concluded that two savings
accounts Mary Ann had listed as nonmarital assets were, in fact,
marital assets.  He also found that there had been a commingling
of assets with funds being transferred from David to Mary Ann and
vice versa.  Given David's illness, the judge determined that
Mary Ann had greater income prospects than David when they
executed the Agreement.  David's business had little or no value,
and he was in the process of liquidating it when he signed the
Agreement.  He had no income except for social security and a
small monthly annuity payment.  Furthermore, the fact that the
Agreement awarded Mary Ann most of the marital assets, combined
with David's waiver of maintenance, exacerbated David's financial
disadvantage.  
     Based on these findings, the judge concluded that the judge
presiding at the initial dissolution hearing had been unaware of
the "true facts."  The judge also found that the Guardian's
petition to vacate the Agreement was necessitated by Mary Ann's
wrongful conduct.  Therefore, he ruled that the Agreement was
unconscionable and vacated it.  He did not, however, vacate the
order of dissolution because he believed that at the time of the
dissolution proceeding, David was capable of understanding the
non-financial nature of the divorce. 
     The judge scheduled a new hearing to determine the
redistribution of marital property.  The Guardian filed a
response to Mary Ann's original petition for dissolution and
added a claim for maintenance.  Mary Ann did not file a reply. 
Extensive discovery followed.  On July 18, 1994, trial commenced. 
Mary Ann attempted to establish that David had dissipated the
marital estate.  She presented witnesses who testified that David
had a history of gambling losses and that he overbilled customers
to cover those losses.  Mary Ann contended that David's assets
would have been more than $200,000 had he not incurred these
gambling losses and greater by an unidentified amount if he had
not overbilled his company's two primary customers in 1991.  
     On August 30, 1994, the judge ruled that the irretrievable
breakdown of the marriage occurred between January 1, 1990 and
January 30, 1991 and that David had not dissipated marital
assets.  The judge found that David contributed $545,000 in
earnings during the marriage while Mary Ann contributed $246,000. 
The judge did note that Mary Ann's contribution as a homemaker
was far greater than David's.  Mary Ann owned a home valued at
$155,000 and had an annual income between $30,000 and $35,000. 
The judge also found that Mary Ann had spent $162,790 deposited
into two separate bank accounts.  Mary Ann was in possession of
these accounts as David's fiduciary.  Of the $162,670, the judge
found that Mary Ann improperly spent $85,447, which she was
obligated to reimburse to the marital estate.  The judge then
distributed the marital assets as follows:
          1.  The Guardian received 100 shares of Waste
     Management, Inc. stock and 80 shares of Wallace
     Computer stock previously held in joint tenancy by Mary
     Ann and David;
          2.  The Guardian was awarded David's bank account
     proceeds in the amount of $15,859, along with his
     annuity paying $95.85 monthly and his life insurance
     policy proceeds of $6,600;
          3.  Mary Ann was awarded her bank account
     totalling $100, as well as a 1984 Buick;
          4.  A judgment was entered in favor of the
     Guardian in the amount of $46,955, which was David's
     share of the $85,447 Mary Ann owed the estate, and Mary
     Ann was awarded the remaining $38,492;  
          5.  Mary Ann was ordered to pay to the Guardian
     $250 per month in maintenance. 
     On May 9, 1995, the judge ordered Mary Ann to reimburse
$47,928.43 to the Guardian for attorney's fees and costs incurred
litigating the proceedings.  The court found that Mary Ann had
made misleading statements in her petition for dissolution of
marriage and in the Agreement, and, as a result, the payment of
the Guardian's fees and costs was an appropriate sanction under
Supreme Court Rule 137.  134 Ill. 2d R. 137.    
     Mary Ann first contends that the trial judge erred in
refusing to vacate the original judgment of dissolution.  She
argues that because the judge found that her testimony at the
1991 dissolution hearing that she and David had lived apart for
the statutorily required two years was misleading, the evidence
did not establish sufficient grounds under the Act upon which to
grant a dissolution.  Relying on the decision in In re Marriage
of Robinson, 225 Ill. App. 3d 1037, 588 N.E.2d 1243 (1992), Mary
Ann contends that the court lacked subject matter jurisdiction to
enter the order of dissolution, and the judgment is void. 
Although Mary Ann never moved to vacate the dissolution on this
ground during the original dissolution proceedings, a judgment
entered by a court which lacks subject matter jurisdiction "may
be attacked at any time or in any proceedings."  In re Marriage
of Jerome, 255 Ill. App. 3d 374, 388, 625 N.E.2d 1195 (1994).
     The issue of whether irregularities in a dissolution
proceeding deprives the trial court of jurisdiction over the
matter and renders orders entered in the case void has divided
Illinois courts.  In In re Marriage of Robinson, the parties
sought a dissolution on the grounds of irreconcilable
differences.  Then, as now, the Act required that in order to
proceed on this ground, the parties must have lived apart for two
years.  However, if they had lived apart for at least six months
but less than two years, they could file a written waiver of the
two-year waiting period.  See Ill.Rev. Stat. 1989, ch. 40, par
401(a)(2), (now 750 ILCS 5/401(a)(2)).  The Robinsons failed to
execute the waiver and file it with the court; however, they
stipulated to the waiver and neither party objected to the
absence of the waiver in the record until appeal.  The appellate
court vacated the judgment, held that proceedings brought under
the Act are not within the general jurisdiction conferred upon
circuit courts by the Illinois constitution.  Rather, a court may
only act within the limited jurisdiction conferred by the Act,
the provisions of which must be strictly construed.  In re
Marriage of Robinson, 225 Ill. App. 3d at 1038.  Because the Act
required the filing of a written waiver, and the record did not
contain one, the trial court lacked subject matter jurisdiction
to enter the order of dissolution.  Therefore, the dissolution
was void.  Robinson, 225 Ill. App. 3d at 1038.
     The reasoning of In re Marriage of Robinson has been soundly
rejected.  The court in In re Marriage of Jerome recognized that
          "jurisdiction of the subject matter does not mean
     simply jurisdiction of the particular case before the
     court but jurisdiction of the class of cases to which
     the particular case before the court belongs.  Where
     the subject matter of the litigation is within the
     general jurisdiction of the trial court, the claim of
     want of jurisdiction by reason of irregularities, or
     exceptional or special circumstances, or because the
     court had no jurisdiction to render the particular
     judgment or order cannot be made for the first time on
     appeal."  In re Marriage of Jerome, 255 Ill. App. 3d at
     388.
Contrary to the holding in In re Marriage of Robinson, under the
Illinois constitution, dissolution proceedings are within the
general jurisdiction of the circuit courts.  In re Marriage of
Monken, 255 Ill. App. 3d 1044, 1046, 627 N.E.2d 759 (1994);
English v. English, 72 Ill. App. 3d 736, 741, 393 N.E.2d 18
(1979).  Thus, as in In re Marriage of Jerome, Mary Ann's
contentions here concern only the circuit court's jurisdiction
over this particular matter.  Because the parties "adjudicated
their rights before the court to a final judgment without
objection to the court's right to hear the cause, the parties
will be bound on appeal so far as the question of jurisdiction
over the particular case is concerned.  In re Marriage of Jerome,
255 Ill. App. 3d at 388.
     Additionally, as the court in In re Marriage of Monken
noted, "one who accepts the benefits of a divorce decree is
estopped from subsequently challenging the validity of the decree
even if the challenge is based upon the lack of subject matter
jurisdiction."  In re Marriage of Monken, 255 Ill. App. 3d at
1046.
     Here, the judge entered a final order of dissolution on July
31, 1991.  The dissolution permitted Mary Ann to avoid legal
responsibility for David's ongoing medical expenses from
Alzheimer's disease.  Mary Ann benefited from the dissolution of
marriage.  Mary Ann did not object to jurisdiction during the
trial; did not file a post-trial motion within 30 days of entry
of the order of dissolution seeking to vacate the judgment due to
lack of jurisdiction; and did not appeal the decree.  In fact,
she failed to raise the jurisdictional issue until November 24,
1993, after the decision granting the Guardian's section 2-1401
petition.  We hold that Mary Ann was, at that time and now,
estopped from raising the issue of the court's subject matter
jurisdiction to enter the original order of dissolution.  
     Mary Ann next contends that the trial judge erred in denying
a motion for voluntary dismissal, which she filed after the judge
denied her motion to vacate the order of dissolution.  Mary Ann
claims that because she complied with section 2-1009 of the Code
(735 ILCS 5/2-1009), she is entitled to the dismissal as a matter
of law.  
     In Gibellina v. Handley, 127 Ill. 2d 122, 137, 535 N.E.2d 858 (1989), our supreme court sought to curb abuse of the
voluntary dismissal statute, which increasing numbers of
plaintiffs were using to avoid adverse rulings.  The legislature
incorporated the decision in Gibellina into an amendment to
Section 2-1009.  This version of the statute was in effect when
Mary Ann filed her motion on November 23, 1993.  See Gibrick v.
Skolnik, 254 Ill. App. 3d 970, 976, 627 N.E.2d 76 (1993). 
Section 2-1009(a) states:  
          "The plaintiff may, at any time before trial or
     hearing begins, upon notice to each party who has
     appeared or each party's attorney, and upon payment of
     costs, dismiss his or her action or any part thereof as
     to any defendant, without prejudice, by order filed in
     the cause."  (Emphasis added.) 735 ILCS 5/2-
     1009(a)(West 1994).
The plain language of the statute indicates that the trial judge
must grant a voluntary dismissal only if it is presented before
the trial commences.  After a trial or a hearing begins, the
decision to grant the motion is within the judge's discretion. 
735 ILCS 5/2-1009(c).
     The trial on Mary Ann's petition for dissolution of marriage
commenced on July 31, 1991.  Mary Ann did not file a motion under
section 2-1009(a) before that date.  She also did not do so prior
the date the hearing began on the Guardian's petition to vacate
the Agreement.  In fact, Mary Ann waited to present the motion
for voluntary dismissal until November 23, 1993, when she
realized that her original plan to manipulate the dissolution
proceedings had gone awry.  Although Mary Ann did file the motion
before the hearing to determine the redistribution of marital
property, we do not believe that section 2-1009(a) contemplates
automatic voluntary dismissal under these circumstances.  In
fact, to so interpret section 2-1009(a) would thwart the
legislative intent to curb the precise abuse Mary Ann has
attempted:  to avoid an adverse ruling in a proceeding already
begun.  The trial having begun long before Mary Ann filed her
motion for voluntary dismissal, Mary Ann was not entitled to the
dismissal under section 2-1009(a).
     For all the foregoing reasons, we affirm the judgment of the
circuit court.  The order staying the judgment is vacated.
     Affirmed.
     ZWICK, P.J., and McNAMARA, J., concur.