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No. 2--03--0721

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

On March 2, 1997, in British Columbia, Canada, the respondent, Anezka Bouz, f/k/a AnezkaChrobak, a/k/a Agnes Chrobak, obtained a divorce from the petitioner, Karel Chrobak, a/k/a CharlesChrobak. Subsequently, in Illinois, the petitioner petitioned for a legal separation (see 750 ILCS5/402 (West 2002)). On November 5, 1997, the trial court granted the petitioner's petition for a legalseparation and incorporated into that order the parties' settlement agreement. Five years later, therespondent petitioned to vacate the legal separation order and the incorporated settlement agreement(see 735 ILCS 5/2--1401(f) (West 2002)), arguing that the trial court lacked subject matterjurisdiction to enter the separation order because the parties were divorced. The petitioner movedto strike and dismiss the petition, claiming, among other things, that the respondent was estoppedfrom challenging the order because she accepted the financial benefits that the settlement agreementgave her. The trial court granted the petitioner's motion to strike and dismiss, and this appealfollowed. On appeal, the respondent contends that the trial court lacked subject matter jurisdictionover the proceeding for a legal separation. The petitioner claims that the respondent has waived thisissue or is estopped from challenging the trial court's jurisdiction. We agree with the petitioner'sestoppel argument. Thus, we affirm.

On December 29, 1962, the parties were married in Chicago, Illinois. They lived in KaneCounty as a married couple for nearly 30 years and raised three children, who are now adults. InFebruary 1992, the respondent left the petitioner and moved to Canada, where she lived previously. Five years later, the respondent petitioned for a divorce in Canada and properly notified thepetitioner. The petitioner, who had no contacts with Canada, did not appear at the Canadian divorceproceedings. The parties' marriage was dissolved in Canada on March 2, 1997, but the divorcedecree did not address maintenance or the division of marital property.

On July 24, 1997, the petitioner petitioned for a legal separation in Illinois, acknowledgingthe Canadian divorce decree. The respondent was personally served with the petition for a legalseparation, but she failed to attend any of the proceedings. At the subsequent hearing, the petitioner,who was the only witness to testify, agreed that the Canadian divorce order did not address propertyor support issues, which the petitioner wished to resolve with the order for a legal separation.

In that regard, the petitioner testified about the parties' settlement agreement. He stated thathe entered into the agreement freely, that the agreement was fair, and that the respondent signed theagreement. The agreement provided that the parties would sell their home and share the proceeds,which they did, and they divided the amount they had in their savings and checking accounts. Thepetitioner stated that the parties split the money he had in a pension, and he provided a survivor'sannuity to the respondent. The petitioner also has paid the respondent maintenance since February1992, and, pursuant to the agreement, he will continue to pay her $1,000 per month until, amongother things, she remarries or starts receiving social security. The trial court found that therespondent was in default by consent or otherwise, granted the petition for a legal separation, andincorporated into the judgment the settlement agreement, which it found fair, reasonable, and notunconscionable.

On November 6, 2002, the respondent moved to vacate the judgment for a legal separationand the incorporated settlement agreement, arguing that the judgment was void because the partieswere divorced when it was entered. The respondent contended that, pursuant to comity principles,the trial court should have recognized the Canadian divorce order and thereby acknowledged that it lacked subject matter jurisdiction to grant a legal separation. The petitioner moved to strike anddismiss the petition to vacate, arguing, among other things, that the respondent should be estoppedfrom challenging the order for a legal separation and the incorporated settlement agreement becauseshe profited from the order when she accepted maintenance and other benefits. The trial courtgranted the petitioner's motion to strike and dismiss, finding, among other things, that the respondentaccepted the benefits of the settlement agreement. This timely appeal followed.

On appeal, the respondent claims that the trial court lacked subject matter jurisdiction overthe legal separation proceedings because the parties were already divorced. The petitioner contendsthat the respondent has waived the argument or is estopped from challenging the trial court's subjectmatter jurisdiction.

Before addressing these arguments, we consider our standard of review. The parties disagreeabout the proper standard to apply. The respondent claims that we should invoke a de novo standardof review because, among other things, the essential issue raised on appeal is whether the trial courthad subject matter jurisdiction over the proceedings. See In re Marriage of Devick, 315 Ill. App. 3d908, 912 (2000). The petitioner argues that we should employ an abuse of discretion standardbecause, among other things, a trial court's decision whether to recognize a foreign judgment isdiscretionary. See Ransom v. A.B. Dick Co., 289 Ill. App. 3d 663, 669-70 (1997). We determinethat the standard of review is de novo because the issue raised is whether the trial court had subjectmatter jurisdiction over the legal separation proceedings. See In re Marriage of Adamson, 308 Ill.App. 3d 759, 764 (1999).

We next address the petitioner's waiver and estoppel arguments. We will first consider thepetitioner's claim that the respondent has waived challenging the trial court's lack of subject matterjurisdiction because she participated in the proceedings without objection. A judgment entered bya court that lacked subject matter jurisdiction is void and may be attacked at any time and in anyproceeding. Adamson, 308 Ill. App. 3d at 764. When subject matter jurisdiction is lacking, it cannotbe conferred by stipulation, consent, or waiver. Adamson, 308 Ill. App. 3d at 764; see also In reMarriage of Alush, 172 Ill. App. 3d 646, 651-52 (1988) (noting that wife could challenge trial court'sjurisdiction over contempt proceedings even though wife responded to husband's petition for a ruleto show cause). Given these well-established rules, we determine that the petitioner's waiverargument lacks merit.

Before considering the petitioner's estoppel argument, we note that the special concurrencerecites the test for collaterally attacking a void judgment that was delineated in the Restatement(Second) of Judgments