Find Legal Information

THIRD DIVISION
November 12, 2003

No. 1-02-2093

Petitioner Luis Ayala, Jr. (Luis), and respondent Wanda Lozado (Wanda) are theunmarried parents of Jessica Ayala (Jessica) and are engaged in a custody battle overJessica. In 1998, the court awarded temporary custody of Jessica to Luis and visitation rightsto Wanda. In June 2001, Luis was convicted and jailed for conspiracy to sell drugs. Thatsame month, the court entered four orders in the parties' custody case which, among otherfindings and directives, joined Luis's wife and parents as parties to the proceedings andgranted them joint custody of Jessica with Luis. Pursuant to section 2-1401 of the Code ofCivil Procedure (735 ILCS 5/2-1401 (West 2000)), Wanda moved to vacate the four orders asvoid ab initio and immediately turn Jessica over to Wanda (motion to vacate). The courtdenied the motion, finding that no section 2-1401 petition was before it and that Wanda'smotion to vacate was untimely filed. Wanda appeals pursuant to Supreme Court Rule304(b)(3) (155 Ill. 2d R. 304(b)(3)), arguing that the court erred in denying her motion to vacateand in failing to interpret it as a petition filed pursuant to section 2-1401. She requests that we(1) reverse the court's June 14, 2002, order denying her motion to vacate and (2) find void andvacate the court's June 20, 2001, orders joining Luis's wife and parents as additional partiesand awarding them joint co-custodial care of Jessica. Luis and his parents filed a motion todismiss the appeal, arguing that the court's order denying Wanda's motion to vacate was not afinal order and, therefore, the case is not ripe for appeal. Taking the motion to dismiss with thecase, we find that we have jurisdiction to consider the appeal. We reverse and remand.

BACKGROUND

In April 1995, Luis filed a verified paternity complaint stating that he was Jessica'sfather and requesting joint legal custody of her. On August 21, 1998, the court awardedtemporary custody of Jessica to Luis and visitation rights to Wanda. In June 2000, Luis wasarrested for conspiracy to sell drugs. In July 2000, Wanda filed an emergency petitionrequesting that the court grant her temporary and permanent care and custody of Jessicagiven Luis's arrest. The court struck the petition. Wanda then apparently filed an amendedpetition requesting the same relief because, although the record does not contain a copy ofthat petition, it does contain Luis's September 11, 2000, response to it. The court ordered theparties to present an agreed order regarding custody. On April 12, 2001, when the partiescould not come to agreement regarding custody, Wanda filed a pro se motion for modificationof custody due to the significant change in circumstances occasioned by Luis's now imminentincarceration.

On May 2, 2001, Luis filed a petition for diverse relief requesting leave to join his wifeand parents as additional parties to the proceedings, leave to file custody interrogatories inexcess of 30 questions, that the court sua sponte declare that Illinois is Jessica's home state,and that Wanda be required to pay child support. Luis asserted that Wanda was an unfitcustodial parent who had abandoned Jessica to his parents' custodial care on multipleoccasions; Jessica had been in the de facto custody of his wife and parents and his legalcustody, as an extended family unit, for the past two years; joinder of his wife and parents asadditional parties was warranted because they had been acting as parents and the courtneeded to have jurisdiction over them; and his incarceration was an insufficient change incircumstances to warrant modifying Jessica's custody.

On May 7, 2001, the court declared Illinois to be Jessica's home state; granted Luisleave to file the custody interrogatories; granted Wanda 28 days in which to respond to theinterrogatories and Luis's petition for diverse relief; reserved ruling on the joinder issue; andcontinued the case for status to May 30, 2002.

On May 22, 2001, Luis, his wife and his parents filed a motion requesting leave to joinhis wife and parents as additional parties and that the court sua sponte declare Illinois to beJessica's home state, reiterating the same arguments as in Luis's earlier petition for diverserelief. On May 30, 2001, the court sua sponte ordered that the continued care and possessionof Jessica by Luis and the "proposed intervenors," his wife and parents, would "remain statusquo" until further order with all prior orders to remain in full force and effect. The court grantedWanda 28 days to respond to the May 22, 2001, joinder petition and continued the joinderissue until July 24, 2001.

In June 2001, Luis was convicted and sentenced to 80 months' imprisonment forconspiracy to sell drugs. That same month, with Luis's permission, Wanda took Jessica toWanda's home in Iowa for a visit. Wanda did not return Jessica to Illinois by the agreed dateof June 10, 2001, requesting instead that Luis allow Jessica to remain in Iowa for a few moredays. On June 12, 2001, Luis filed an emergency petition for an order of default for Wanda'sfailure to respond within 28 days to his interrogatories, petition for diverse relief, and joinderpetitions; cessation of unsupervised visitation; petition for rule to show cause and visitationabuse; and a finding of indirect civil contempt.

On June 12, 2001, the court (1) ordered Wanda to return Jessica to Luis that day; (2)made the rule to show cause returnable instanter based upon a finding that Wanda removedJessica to Iowa in violation of three prior court orders⁽¹⁾ and ordered Wanda to appear beforethe court on June 13, 2001, for a hearing on indirect civil contempt and sanctions; (3) enjoinedWanda from removing Jessica from Illinois without a specific order of court; and (4) continuedall other matters pertaining to Luis's emergency petition to June 13, 2001.

On June 13, 2001, the court was unavailable and by "agreed order" continued allmatters to June 20, 2001. Wanda was not present for the June 20, 2001, hearing. Sheasserts that she did not agree to the June 20, 2001, hearing date and that she called Luis'sattorney and the court clerk on June 20, 2001, to explain that she could not attend the hearingthat day.

On June 20, 2001, the court entered two orders. In the first order, entered pursuant toLuis's petition for joinder of additional parties, the court struck the July 24, 2001, datescheduled for a hearing on the joinder motion, granted Luis leave to join his wife and parentsas additional parties instanter and declared Illinois to be Jessica's home state.

The court entered the second order pursuant to the prior return of the rule to showcause against Wanda for violation of the court's prior orders and failing to comply with thecourt's sua sponte order to return Jessica to Illinois within the time prescribed, failing topersonally appear in court for the hearing on indirect civil contempt on June 13, 2001, andfailing to appear on June 20, 2001. The court again ordered that Luis's wife and parents bejoined as parties to the cause of action instanter and noted their stipulation to the court'sjurisdiction over them. With Luis's agreement as Jessica's custodial caregiver, as animplementation of the court's order to maintain the status quo as to Jessica's residential care,education and activities, the court granted joint co-custodial care of Jessica to Luis's wife andparents until further order of the court. The court granted Wanda "reasonable" overnightvisitation with Jessica in Cook/Du Page County, Illinois, during August 2001. The courtentered an order of default against Wanda for failure to comply with orders as to filing ofresponsive pleadings within the time prescribed, found that she failed to answer custodyinterrogatories, and continued all pending matters to August 22, 2001, including sanctions forWanda's failure to answer custody interrogatories.

On October 24, 2001, Wanda filed a motion for permanent custody of Jessica.

On December 13, 2001, Wanda filed a section 2-1401 motion to vacate the four ordersentered on June 12, 2001, June 13, 2001, and June 20, 2001, arguing that the orders werevoid ab initio for, among other defects, lack of jurisdiction. In the motion,Wanda avers thatshe returned Jessica to Luis on the night of June 12, 2001, or the morning of June 13, 2001,and that she was in court on June 13, 2001. Wanda, who allegedly appeared pro se on June13, 2001, asserts that Luis'ss counsel did not consult her prior to drafting and entering the"agreed" order continuing the case to June 20, 2001; she was unavailable on June 20, 2001;she did not agree to the June 20, 2001, date; she did not sign the agreed order; and, whenshe asked Luis's counsel to select another date, counsel allegedly retorted "that's not myproblem," and left the courtroom. Wanda also notes that the "agreed" order does not reflectthat she was in court on June 13, 2001, and that she had already returned Jessica as ordered.

Luis filed a motion to strike Wanda's motion to vacate. The court struck the motion butgranted Wanda leave to refile. Wanda filed a second motion to vacate the four orders onMarch 6, 2002. Luis filed a motion to strike it. On June 14, 2002, the court entered an orderdenying both Wanda's motion to vacate and Luis's motion to strike and continued the case fora status hearing three months later.

The court noted that it held an extensive pretrial conference with the parties to reviewthe challenged orders. The court then stated, without objection, that "no motion was filedwithin 30 days to vacate said orders. There is no pending petition relative to 5/2-1401." Thecourt continued "[b]ased upon the arguments of counsel on behalf of Wanda Lozado whoappeared in court that said orders were not void ab initio; therefore a pleading needed to befiled within 30 days or within two years neither of which have been done to this date. As aresult, the motion of Respondent Wanda Lozado to vacate said orders is denied." Wandaappeals the court's order denying her motion to vacate and requests that we hold void andvacate the two June 20, 2001, orders. She does not request relief with regard to the July 12,2001, and July 13, 2001, orders. Luis and his parents (hereinafter referred to in the singularas Luis) contest our jurisdiction to consider the appeal. Given that Luis did not appeal thecourt's denial of his motion to strike, we will not address whether the court was correct indenying the motion to strike or the merits of that motion.

MOTION TO DISMISS APPEAL

Luis argues that, when the court filed its June 14, 2002, order denying Wanda's motionto vacate, there were still matters pending before the court and the denial order was, therefore,not final for purposes of appeal pursuant to Supreme Court Rules 301, 303, and 304 (155 Ill.2d Rs. 301, 303, 304) and case law. Citing to Sarkissian v. Chicago Board of Education, 201Ill. 2d 95, 776 N.E.2d 195 (2002), Wanda responds that the order denying her section 2-1401motion to vacate is appealable pursuant to Supreme Court Rule 304(b)(3). In Sarkissian, oursupreme court held that a trial court's ruling on a section 2-1401 petition is deemed a finalorder and immediately reviewable pursuant to Supreme Court Rule 304(b)(3), which provides"that appeal may be taken from 'a judgment or order granting or denying any of the reliefprayed in a petition under section 2-1401 of the Code of Civil Procedure.' " Sarkissian 201 Ill.2d at 102, 776 N.E.2d at 200, quoting 155 Ill. 2d R. 304(b)(3); accord S.C. Vaughan Oil Co. v.Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 496-97, 693 N.E.2d 338, 342-43 (1998).

Wanda filed her second motion to vacate the four orders within one year of entry of theorders. Her motion clearly stated that she was moving to vacate "pursuant to 735 ILCS 5/2-1401, and in the alternative, pursuant to common law." Section 2-1401 authorizes relief from afinal judgment more than 30 days but within two years after judgment has been entered. Sarkissian 201 Ill.2d at 101-02, 776 N.E.2d at 200; 735 ILCS 5/2-1401(a) (West 2000). Without explanation, the trial court stated that it did not have a section 2-1401 petition beforeit. The court, therefore, denied Wanda's motion to vacate the orders as untimely because shefiled the motion more than 30 days after entry of the orders.

The character of a pleading is determined from its content, not its label. Sarkissian,201 Ill. 2d at 102, 776 N.E.2d at 200-01. Given that the challenged orders were not final⁽²⁾ asrequired by section 2-1401, the court arguably could have determined that section 2-1401 wasnot the appropriate procedure by which to seek relief from the orders. However,our supremecourt has held that a petition seeking relief from a void judgment is to be considered a section2-1401 petition, albeit not subject to the timeliness and due diligence requirements of section2-1401. Sarkissian, 201 Ill. 2d at 104-05, 776 N.E.2d at 201-02. The fact that Wandachallenged the orders solely on the basis of voidness was sufficient for the court to construeher motion to vacate as a valid section 2-1401motion. Cook v. Burnette, 341 Ill. App. 3d 652,660, 793 N.E.2d 160, 166 (2003), following Sarkissian, 201 Ill. 2d at 104-05, 776 N.E.2d at201-02. The court erred in finding that Wanda's motion to vacate was not a section 2-1401petition.

A court's determination of a motion to vacate on voidness grounds, regardless ofwhether that motion is titled a section 2-1401 petition, is considered, in substance, adetermination of a section 2-1401 petition. Cook, 341 Ill. App. 3d at 660, 793 N.E.2d at 166;Sarkissian, 201 Ill. 2d at 104-05, 776 N.E.2d at 201-02. Since petitions seeking relief fromvoid judgments are section 2-1401 petitions, "any order granting or denying such relief is afinal ruling, appealable pursuant to Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3))." Sarkissian, 201 Ill. 2d at 105, 776 N.E.2d at 202. Accordingly, the court's denial of Wanda'smotion to vacate is a final determination appealable pursuant to Supreme Court Rule 304(b)(3)and we have jurisdiction to consider this appeal. Cook, 341 Ill. App. 3d at 660, 793 N.E.2d at166; Sarkissian, 201 Ill. 2d at 105, 776 N.E.2d at 202.

Court's Denial of Wanda's Motion to Vacate

The trial court has discretion whether to grant a section 2-1401 petition, and we will notdisturb the court's judgment absent an abuse of that discretion. Smith v. Airoom, Inc., 114 Ill.2d 209, 221, 499 N.E.2d 1381, 1386 (1986). Here, however, the court did not address thebases for Wanda's motion to vacate. Rather, the court found her motion untimely and deniedit on that basis. This was error.

We note initially that Wanda did timely file her section 2-1401 motion within two yearsof entry of the challenged orders. More importantly, however, Wanda moved to vacate theorders on the basis that they were void for lack of subject matter and personal jurisdiction. Such attacks have no time limit. Lebanon Trust & Savings Bank v. Ray, 10 Ill. App. 3d 345,348, 293 N.E.2d 623, 625 (1973).

" 'A judgment, order or decree entered by a court which lacks jurisdiction of the partiesor of the subject matter, or which lacks the inherent power to make or enter theparticular order involved, is void, and may be attacked at any time or in any court, eitherdirectly or collaterally.' " Sarkissian, 201 Ill. 2d at 103, 776 N.E.2d at 201, quotingBarnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858, 861-62 (1945).

As Sarkissian makes clear, a motion for relief from a void judgment, although considered asection 2-1401 petition, is not subject to the timeliness requirements of section 2-1401 andneed not be brought within the statute's two-year time limitation. Sarkissian, 201 Ill. 2d at 103-04, 776 N.E.2d at 201-02. Therefore, the court's determination that Wanda's motion to vacatevoid orders was untimely was clearly erroneous. Cook, 341 Ill. App. 3d at 665, 793 N.E.2d at169; Lebanon Trust & Savings Bank, 10 Ill. App. 3d at 348, 293 N.E.2d at 625.

Wanda's Voidness Allegations

Having found that the court erred in denying Wanda's section 2-1401 motion to vacateas untimely, we now address Wanda's allegations that the two June 20, 2001, orders are voidab initio. Wanda argues that the orders are void because (1) the court did not have subjectmatter jurisdiction to enter an order granting joint co-custody to Luis's wife and parentsbecause no pleading requested this relief; (2) Wanda's due process rights were violatedbecause she had no notice that awarding co-custody of Jessica to Luis's wife and parents wasan issue or that either joinder or custody would be determined on June 20, 2001; (3) the courtlacked personal jurisdiction over Luis's wife and parents because they were misjoined; and (4)as third parties, Luis's wife and parents lacked standing to seek custody because Wanda didnot voluntarily relinquish custody to them.

As stated above, a void order is one entered by a court lacking personal or subjectmatter jurisdiction or the inherent power to make and enter that order and may be attackeddirectly or collaterally. Sarkissian, 201 Ill. 2d at 103, 776 N.E.2d at 201. Here, Wandacollaterally attacked the orders, filing her motion to vacate more than 30 days after entry of theorders. Barnard, 392 Ill. at 135, 63 N.E.2d at 862. To support a collateral attack, thejurisdictional defect must be apparent from the face of the record at the time that thechallenged order was entered. JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 505, 718 N.E.2d539, 546 (1999). If evidence outside the record is required to show the jurisdictional defect,the challenged order is merely voidable, rather than void. JoJan Corp., 307 Ill. App. 3d at 507,718 N.E.2d at 548. A voidable judgment is one entered erroneously, either through mistake offact or law or both, by a court having jurisdiction and is not subject to collateral attack. In reMarriage of Mitchell, 181 Ill. 2d 169, 174-75, 692 N.E.2d 281, 284 (1998). Once a court hasjurisdiction, an order will not be rendered void nor will the court lose jurisdiction merelybecause the court makes such a mistake. Marriage of Mitchell, 181 Ill. 2d at 174-75, 692N.E.2d at 284. A voidable judgment may only be challenged directly, and the challenger mustproceed under section 2-1401 and comply with all the requirements of that section. In reMarriage of Stefiniw, 253 Ill. App. 3d 196, 201, 625 N.E.2d 358, 362 (1993).

Order Awarding Joint Co-Custodial Care to Luis's wife and parents

The face of the record supports Wanda's assertion that the court lacked subject matterjurisdiction to enter the June 2001, order granting Luis's wife and parents co-custodial care ofJessica. Subject matter jurisdiction is the power of the court to both adjudicate the generalquestion involved and to grant the particular relief requested. In re D.D., 337 Ill. App. 3d 998,1012, 788 N.E.2d 10, 20 (2002). Given the nature of the case, an ongoing custody disputebetween unmarried parents initiated by Luis's 1995 filing of a verified paternity complaintrequesting joint custody of Jessica, the court clearly had subject matter jurisdiction overcustody proceedings in general. However, the issue of awarding shared custody to Luis's wifeand parents was not properly before the court on June 20, 2001, because no pleading in thecase was directed at such relief and Wanda had no notice that the issue would be considered.

With limited exceptions, the circuit court has " 'original jurisdiction of all justiciablematters.' " Ligon v. Williams, 264 Ill. App. 3d 701, 707, 637 N.E.2d 633, 638 (1994), quoting Ill.Const. 1970, art. VI,