People v. Ketchum

Annotate this Case
NO. 4-95-1012




TAMMY GIBBS, as Parent and Guardian on ) Circuit Court of
behalf of RICHARD GIBBS, a Minor, ) Champaign County
Plaintiff-Appellant and Cross- ) No. 91L1383
Appellee, )
v. )
Defendant-Appellee and Cross- ) Donald R. Parkinson,
Appellant. ) Judge Presiding.

JUSTICE GARMAN delivered the opinion of the court:

This is an appeal by plaintiff Tammy Gibbs of an order
denying her motion to vacate certain orders entered by the trial
court in connection with custody of her minor child and child
support payments to be paid by the child's father, defendant
Kenneth Ketchum. The basis of her attack on the orders was alleged
lack of jurisdiction in the trial court to enter the orders. We
now affirm.
The minor child of the parties was born on July 19, 1991.
A paternity action was commenced by the State. Ultimately,
defendant admitted paternity after blood tests were completed. A
judgment of parentage was entered on May 7, 1992. An order for
support was entered on the same date, ordering defendant to pay
$126 biweekly for support of the child.
On December 4, 1992, defendant filed a petition seeking
a reduction of his child support payments, alleging that he and
plaintiff shared an approximately equal amount of time with the
child. On January 26, 1993, counsel entered an appearance for
defendant and made an oral motion to withdraw defendant's petition.
The motion was allowed and the petition stricken. On March 10,
was filed, which had been signed by both parties. That document
stated in relevant part: (1) the parties had decided it was in the
best interest of the child to have a continuing, close relationship
with both his parents, and they had decided to share joint legal
and physical custody; (2) they would spend approximately equal
amounts of time with him; (3) while plaintiff has physical custody,
she may remove the child from the State of Illinois to the State of
Ohio, where she anticipates living; and (4) defendant will continue
to maintain health insurance on the child through his employer and
pay all uninsured expenses. This stipulation was prepared by
counsel for defendant. Plaintiff signed a "WAIVER" in which she
acknowledged her right to obtain counsel and stated her election to
proceed without counsel. On March 16, 1993, the trial court
entered an order approving the stipulation which provided that (1)
the parties have agreed they will share joint legal and physical
custody of the minor child and have agreed to share an approximate-
ly equal amount of time with him; (2) the parties have agreed to
abate child support payments; and (3) the court has reviewed the
stipulation and finds the matters therein are fair, reasonable, not
unconscionable, and in the best interest of the child.
On January 13, 1994, defendant filed a petition asking
that plaintiff be held in indirect civil contempt, alleging that
(1) since March 16, 1993, the parties had shared custody of the
minor child on alternating weeks and that they had agreed to
Christmas visitation with plaintiff on December 23 and 24, 1993;
(2) the child was not returned to defendant by plaintiff at the end
of that time; (3) defendant left for vacation on December 29, 1993,
and, upon returning, was unable to locate plaintiff or the child;
(4) in attempting to find plaintiff, defendant learned she had
moved out of her trailer on December 24, 1993, without notice; and
(5) when plaintiff did call defendant, she told him she intended to
keep the child to "potty train" him and refused to tell defendant
her whereabouts, although she did provide him with a telephone
number in the Gays, Illinois, vicinity.
On September 12, 1994, a "STIPULATION TO MODIFY JOINT
CUSTODY AND PARENTING AGREEMENT" was filed, signed by both parties
and their respective counsel. It alleged that after a partial
hearing on defendant's petition on February 16, 1994, the court
ordered plaintiff to return the minor child to defendant and
plaintiff requested a continuance to hire an attorney. The
stipulation further provided that the parties agreed plaintiff is
in indirect civil contempt and that the court should reserve the
issue of sanctions. It also provided detailed custody arrangements
and that defendant would be allowed to make up time lost with the
minor child due to plaintiff's conduct. Plaintiff also agreed to
pay defendant's attorney fees in the amount of $341. The stipula-
tion concluded by saying that all other provisions of the March 16,
1993, order were to remain in full force and effect. An order was
entered approving this stipulation on September 12, 1994.
On March 29, 1995, defendant filed a pro se petition for
a rule to show cause, alleging that plaintiff failed to pay the
attorney fees she had been ordered to pay. On March 29, 1995, the
court issued a rule to show cause and ordered plaintiff to appear
on May 31, 1995. On April 28, 1995, counsel for plaintiff filed a
motion to vacate the March 16, 1993, order and discharge the March
29, 1995, rule to show cause. The motion alleged that (1) the
March 10, 1993, stipulation contained no agreement to abate child
support, although the March 16, 1993, order approving the stipula-
tion made such a finding; (2) prior to entry of the order, there
was no pleading on file asking for abatement of defendant's child
support payments since defendant's pro se petition for reduction of
child support had been stricken; (3) in the absence of a stipula-
tion between the parties to abate child support and of a pleading
asking for such relief, the trial court lacked subject-matter
jurisdiction and "inherent power and authority" to enter the March
16, 1993, order abating child support and, therefore, the order is
void; (4) since the record must stand as if the March 16, 1993,
order was never entered, the March 29, 1995, rule to show cause
must be discharged; and (5) since the March 16, 1993, order abating
defendant's child support is void, his original child support
obligation is still in effect and he is liable for arrearage and
for current support.
On October 13, 1995, defendant filed a motion to modify
or abate child support, asking the court (in the event its orders
of March 16, 1993, and September 12, 1994, are found to be void and
are vacated) to reduce or abate defendant's child support, alleging
a substantial change in circumstances had occurred in regard to the
split-custody arrangement.
On October 18, 1995, plaintiff filed an amended motion to
vacate, in which she also alleged the trial court was without
jurisdiction to modify the custody of the minor child in its March
16, 1993, order. On that point, she alleged (1) there was no
explicit order of custody when the judgment of parentage was
entered and, pursuant to section 14(a)(2) of the Illinois Parentage
Act of 1984 (Parentage Act) (750 ILCS 45/14(a)(2) (West 1992)),
custody was thereby granted to plaintiff, since the order estab-
lished defendant's child support obligation; (2) the stipulation
entered into (March 1993) was therefore a stipulation to modify
custody, rather than set initial custody; (3) sections 601 and 610
of the Illinois Marriage and Dissolution of Marriage Act (Marriage
Act) (750 ILCS 5/601, 610 (West 1992)) require that modification of
custody proceedings be initiated by a petition to modify, and the
court must find by clear and convincing evidence that a change of
circumstances has occurred and modification is necessary to serve
the best interest of the child; (4) no such petition was filed, and
no findings were made by the trial court in its March 16, 1993,
order; and (5) therefore, the court lacked subject-matter jurisdic-
tion and "inherent power and authority" to enter the order
modifying custody.
Defendant submitted a request to admit facts to plaintiff
which asked her to admit that (1) on March 9, 1993, she met with
defendant and his attorney and reviewed the stipulation and signed
it; (2) plaintiff reviewed the draft order signed by the court on
March 16, 1993, which provided that the parties had agreed to abate
child support payments; and (3) after the March 16, 1993, order,
she stopped receiving child support payments from defendant and
never informed him she believed he was improperly withholding the
payments from her. Plaintiff filed objections to some of the
questions, based upon the parol evidence rule.
Defendant filed a memorandum of law in response to
plaintiff's amended motion to vacate, in which he set forth a
statement of facts, alleging that (1) he and plaintiff met in his
attorney's office in March 1993, and they reviewed the stipulation
and the draft order entered by the court on March 16, 1993; (2)
plaintiff had orally agreed that defendant's child support should
be abated and understood the issue was to be submitted for the
court's approval; (3) in doing so, plaintiff authorized defendant's
attorney to submit the stipulation and draft order reflecting the
abatement of child support; (4) at no time after March 16, 1993,
did plaintiff request or demand that the abated child support
payments be resumed; and (5) the omission of the agreement on
abatement of child support from the March 1993 stipulation was by
inadvertence, and the draft order of March 16, 1993, accurately
reflected the parties' agreement. The memorandum also alleged that
should the trial court decide that its March 16, 1993, order was
void, plaintiff should be estopped from enforcing any provision of
the prior order for support or custody, arguing that defendant
relied upon plaintiff's agreement to the terms of custody and
support by ceasing all child support payments, providing for the
child when he has physical custody, and continuing to provide
medical insurance for him. The memorandum also argued that if the
court vacated its March 16, 1993, order, the September 12, 1994,
order should remain in effect because of the language in that
order, providing the parties would abide by the unaltered terms of
the stipulation. Defendant viewed this as a reaffirmance by
plaintiff of the March 1993 stipulation. Defendant also asked that
plaintiff be ordered to pay his legal fees because of her bad
faith. The memorandum was supported by an affidavit from defendant
which supported the factual allegations of the memorandum.
Plaintiff filed a motion asking that the memorandum be
stricken, the defendant sanctioned, and that the trial judge recuse
himself. The motion alleged the memorandum was an obvious attempt
to present a factual scenario to the court prior to the hearing on
plaintiff's motion to vacate and was an ex parte communication with
the court as to what are arguably inadmissible facts and is an
"end-run" around the objections made by plaintiff to the request to
admit facts.
A hearing was held on November 20, 1995, on the motion to
vacate. The court allowed plaintiff's motion to strike defendant's
memorandum on the basis that it was filed too late, but allowed
defense counsel to argue whatever she wanted from the memorandum.
Defense counsel attempted to call defendant's former attorney,
James Mullady, to testify as to how the March 1993 stipulation was
reached and agreed to by the parties. The court allowed an offer
of proof in which Mullady testified that plaintiff indicated her
agreement (at the March 9, 1993, meeting) to the fact of the child
support abatement and joint custody. The court sustained
plaintiff's objection to the proposed testimony. The court
acknowledged the March 1993 stipulation did not state the parties
were agreeing to abate child support, but found such an agreement
to be fairly inferred from the contents of the stipulation. The
court also noted it is desirable to encourage parties to agree upon
matters of custody and child support, if possible. The court
denied plaintiff's amended motion to vacate and found defendant's
request to admit facts and motion to reduce or abate support moot.
Plaintiff filed her notice of appeal. Defendant has filed a notice
of cross-appeal, alleging that (1) plaintiff should be equitably
estopped from enforcing the prior order on custody and child
support; (2) the trial court erred in striking defendant's
memorandum in opposition to plaintiff's motion to vacate; and (3)
the order of September 12, 1994, should remain in force, even if
the March 16, 1993, order is vacated.
Section 14(a)(2) of the Parentage Act provides that if a
judgment of parentage contains no explicit award of custody, the
establishment of a support obligation or visitation rights in one
parent shall be considered a judgment granting custody to the other
parent. Therefore, the original judgment of parentage operated to
vest custody of the child in plaintiff.
Plaintiff points out that the March 16, 1993, order did
not initially set custody; rather, it modified her sole custody of
the child which was initially set in the judgment of parentage.
She argues that the March 16, 1993, order is void because there
were no pleadings on file requesting modification of custody or
support. She also argues that the statutory scheme of the Marriage
Act, with respect to modification of child custody and child
support, limits the jurisdiction of the circuit court by requiring
a motion or petition be filed requesting the relief sought. She
notes that section 610(a) of the Marriage Act (750 ILCS 5/610(a)
(West 1992)) refers to a "motion to modify a custody judgment," and
that section 510(a) of the Marriage Act (750 ILCS 5/510(a) (West
1992)) also refers to the filing of a "motion for modification" of
child support.
"A judgment is void if the court lacked juris-
diction over the parties or subject matter, or
if it 'lack[ed] the inherent power to enter
the particular order involved.' [Citation.]
It is axiomatic that a void judgment can be
attacked at any time, directly or collateral-
ly. ***
*** Circuit courts have 'original juris-
diction of all justiciable matters' with only
limited exceptions. [Citation.] A justicia-
ble question is one which involves the adverse
legal interests of the parties. [Citation.]
The court's authority to exercise its juris-
diction and resolve a justiciable question is
invoked through the filing of a complaint or
petition. [Citations.] These pleadings
function to frame the issues for the trial
court and to circumscribe the relief the court
is empowered to order; a party cannot be
granted relief in the absence of corresponding
pleadings. [Citations.] Thus, the circuit
court's jurisdiction, while plenary, is not
boundless, and where no justiciable issue is
presented to the court through proper plead-
ings, the court cannot adjudicate an issue sua
sponte. Orders entered in the absence of a
justiciable question properly presented to the
court by the parties are void since they
result from court action exceeding its juris-
diction." Ligon v. Williams, 264 Ill. App. 3d
701, 706-07, 637 N.E.2d 633, 637-38 (1994).
At oral argument in this appeal, plaintiff's counsel
argued that a stipulation is not a pleading, a position with which
we do not agree. Plaintiff has cited no cases in support of such
an argument. In support of her argument that the March 16, 1993,
order is void, she cites the Ligon case in which plaintiff filed a
complaint to establish defendant's paternity. Three attempts to
serve defendant were unsuccessful. Finally, defendant was served
and he, along with the assistant State's Attorney, appeared at a
hearing. Plaintiff was not given notice of the hearing and was not
present. Defendant admitted paternity, and the trial judge awarded
custody to him. Plaintiff filed a petition under section 2-1401 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1992)),
seeking to have the court's order awarding custody vacated. The
trial court denied her motion, and she appealed. The appellate
court held the custody judgment void, noting that plaintiff had
received no notice of the hearing. The court also noted plaintiff
sought no relief on the custody issue in her complaint, nor had
defendant filed any pleading asking for custody. Thus, the court
acted without jurisdiction and its custody order was null and void.
Ligon, 264 Ill. App. 3d at 709, 637 N.E.2d at 639. She also cites
Blisset v. Blisset, 123 Ill. 2d 161, 526 N.E.2d 125 (1988), in
which the court held that an agreement whereby a divorced mother
agreed to waive future child support payments in return for the
father foregoing future visitation was unenforceable. The court
emphasized that modification of child support and visitation are
exclusively judicial functions and that parents can create an
enforceable agreement for modification of support only by petition-
ing the court for modification and then establishing, to the
court's satisfaction, that an agreement reached between the parents
is in the best interests of the children. Blisset, 123 Ill. 2d at
168, 526 N.E.2d at 128.
Plaintiff also cites this court's decision in In re
Marriage of Azotea, 200 Ill. App. 3d 182, 558 N.E.2d 550 (1990),
where the trial court awarded a judgment to the wife for delinquent
child support owed by the husband. However, the wife had not
petitioned the court on the arrearage; the issue arose during the
wife's testimony in which she stated she had withheld her own child
support payments because the husband still owed her back child
support. On appeal, this court reversed the award of back child
support to the wife, holding there was no proper pleading before
the court on that issue and that the court erred in determining the
arrearage. Azotea, 200 Ill. App. 3d at 185, 558 N.E.2d at 553.
The Blisset case is inapplicable to the situation in the
instant case. In Azotea, this court merely held it was error for
the trial court to decide the arrearage issue, not that the court's
order was void or that it lacked jurisdiction to enter the order.
The Ligon case is also largely inapplicable because, in that case,
the trial court had nothing whatsoever before it asking that
custody of the child be awarded to one party or the other. In
addition, the mother did not have notice that the court would
decide the custody issue, and the order failed for that reason as
well. In the instant case, the court had before it a stipulation
signed by both parties stating that they would have joint legal and
physical custody of the child. Stipulations which simplify,
shorten, or settle litigation between parties are to be encouraged.
They will be upheld unless they are fraudulent or contrary to
public policy. In re Marriage of Ealy, 269 Ill. App. 3d 971, 974-
75, 647 N.E.2d 307, 310 (1995). While there was no pending
petition or motion before the trial court in this case, that fact
alone will not deprive the court of the authority to act where the
parties agree in a stipulation concerning some matter which
requires resolution by the court.
Plaintiff also points out that two years from the date of
the judgment of parentage had not passed prior to the March 16,
1993, order and there was no waiver of the two-year limitation on
custody changes contained in section 610(a) of the Marriage Act.
However, that section allows the parties to stipulate that a motion
for change of custody may be filed within the two-year period. The
stipulation by the parties in this case adequately fulfilled that
Plaintiff next argues that the March 16, 1993, order is
void because of the provision in the order that the parties agreed
to abate child support when there was no statement to this effect
in the stipulation. Although this might otherwise be a difficult
question, it is easier to resolve here because in the parties'
September 12, 1994, stipulation, plaintiff, who was then represent-
ed by counsel, reaffirmed all provisions of the March 16, 1993,
order not modified by the September 12, 1994, order. The provi-
sions as to child support were not modified by that order. We note
that less than two years passed between the March 16, 1993, order
and the September 12, 1994, stipulation and order. Therefore,
plaintiff could have filed a motion to vacate the March 16, 1993,
order under section 2-1401 of the Code. Instead, she indicated her
agreement to the continued effectiveness of the child support
abatement in the September 12, 1994, stipulation. Having done so,
she may not now complain that the trial court exceeded its
authority in entering the March 16, 1993, order.
In light of our decision, we need not address the issues
raised in defendant's cross-appeal. For the reasons stated, the
trial court's order denying plaintiff's amended motion to vacate is
GREEN and McCULLOUGH, JJ., concur.