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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE HUTCHINSON delivered the opinion of the court:

Respondent, Jami L. Roe, n/k/a Jami L. Varuska-Barlow, appeals from the trial court's orderrequiring her to pay liquidated damages to petitioner, Timothy J. Roe, pursuant to the terms of theparties' marital settlement agreement (the Agreement). The liquidated damages provision of theAgreement required respondent to surrender a sum of money upon her failure to return to Illinoiswith the parties' minor child by September 1, 2002. On appeal, respondent contends that theliquidated damages provision was unenforceable as a matter of law. Because we conclude that thetrial court was without statutory authority to enter a judgment of dissolution containing such aprovision, we reverse the trial court's judgment requiring respondent to pay liquidated damages.

On April 18, 2001, the trial court dissolved the parties' marriage. In its judgment fordissolution of marriage, the trial court incorporated the Agreement by reference. The Agreement awarded respondent 52% of the net proceeds from the sale of the marital home, approximately$46,000. The parties agreed to joint custody of their sole minor child, Matthew, with respondentretaining primary physical custody, subject to petitioner's visitation. The Agreement further grantedpetitioner visitation rights every other weekend, with respondent being responsible for the expenseof six of these visits per year. The parties agreed to allow respondent to relocate with Matthew toKansas to complete her undergraduate studies. The Agreement provided that respondent andMatthew were required to return to Illinois by September 1, 2002. The Agreement also containeda "liquidated damages" provision, stating in pertinent part:

"To secure the return of [respondent] to the State of Illinois, [respondent] agrees todeposit into an account in her name (investment or interest bearing ) in Illinois designated byher 75% of her net proceeds from the sale of the marital residence, further referred to as'Funds'. *** The Funds shall remain in the account until the return of the minor child to theState of Illinois or upon [petitioner] moving from the State of Illinois. *** If [respondent]fails to return the minor child to the State of Illinois on or before September 1, 2002, then[petitioner] shall receive as liquidated damages, the Fund and the unallocated maintenance inArticle Four shall cease until the child is returned. While unallocated maintenance will ceaseduring this period, child support must be paid in accordance with 750 ILCS 5/505."

On March 11, 2002, respondent petitioned to remove Matthew from Illinois to Kansas. Inthis petition, respondent stated that she had become engaged to be married and intended to reside inKansas permanently to pursue a graduate degree. Respondent represented that, if removal weregranted, the visitation schedule provided for in the Agreement would continue. Trial on this petitionwas originally scheduled for August 15, 2002, but subsequently was continued.

On September 10, 2002, petitioner filed a petition for rule to show cause and other relief. Incount I, petitioner asked the trial court to issue a rule to show cause against respondent for violatingthe judgment of dissolution, because she failed to return to Illinois with Matthew by September 1,2002. In count II, petitioner requested the award of liquidated damages as provided in theAgreement. Specifically, petitioner requested the trial court to issue an order commandingrespondent to "turn over the funds that were being held as security to [petitioner] as liquidateddamages."

In her answer to the petition for rule to show cause, respondent denied that her failure toreturn to Illinois with Matthew was a willful violation of the trial court's order, because she filed atimely petition for removal prior to September 1, 2002, and she had intended to resolve thecontroversy prior to this deadline. In response to count II, respondent answered, "[Respondent]denies that [petitioner] should receive liquidated damages. [Respondent] affirmatively states that theissue of liquidated damages should be resolved upon the final resolution of the matter."

The trial court conducted a joint trial on respondent's petition for removal and petitioner'spetition for rule to show cause. Respondent testified that the parties negotiated the Agreementbecause she wanted to relocate to Kansas to complete her undergraduate studies. She testified that,in agreeing to Matthew's temporary removal, petitioner agreed to fly to Kansas every other week forvisitation. Petitioner testified that he agreed to allow respondent to temporarily relocate to Kansaswith Matthew so that she could finish her undergraduate studies.

In its ruling on January 23, 2003, the trial court determined that it was in Matthew's bestinterest to remain in Kansas and granted respondent's March 11, 2002, petition to remove. The trialcourt denied petitioner's September 10, 2002, petition for rule to show cause and declined to holdrespondent in indirect civil contempt. The trial court further found that respondent had not raisedany argument concerning the enforceability of the liquidated damages provision of the Agreement.Nonetheless, the trial court found that the liquidated damages clause was both reasonable andenforceable. The trial court thereafter ordered respondent to pay petitioner liquidated damages asrequired by the Agreement.

Respondent filed a motion to reconsider on February 21, 2003. The motion alleged that theliquidated damages provision was unenforceable because it amounted to a penalty intended solely tosecure Matthew's return to Illinois. Alternatively, respondent argued that the provision wasunenforceable because the trial court made no finding that the liquidated damages amount was areasonable forecast of the harm caused to petitioner by the failure to return Matthew. Finally,respondent argued that petitioner had failed to present any evidence indicating that he suffereddamages.

On March 24, 2003, petitioner moved to strike respondent's motion to reconsider on waiverprinciples. Petitioner argued that respondent had not raised the issue of the enforceability of theliquidated damages provision as an affirmative defense in her response to his petition for rule to showcause. On May 23, 2003, the trial court conducted a hearing and granted petitioner's motion tostrike. Respondent timely appeals.

On appeal, respondent contends that: (1) the trial court erred when it found that respondentwaived the issue of the enforceability of the liquidated damages provision; (2) the trial court erredwhen it awarded liquidated damages to petitioner, because the provision was unenforceable as amatter of law; and (3) the trial court erred when it awarded liquidated damages without evidenceestablishing a reasonable basis for the alleged damages. In the alternative, respondent asks this courtto remand the case because petitioner allegedly committed a fraud on the trial court by not disclosinghis future intent to relocate to Kansas. In response, petitioner asserts that respondent's argumentsare barred by the doctrines of waiver, res judicata, and equitable estoppel. Petitioner additionallyargues that, notwithstanding the application of these doctrines, the liquidated damages provision wasvalid and enforceable as a matter of law without any evidence of damages.

Respondent first contends that the trial court erred when it found that she waived the issueof the enforceability of the liquidated damages provision because she had not raised it as anaffirmative defense to petitioner's petition for rule to show cause. Section 2--613(d) of the Code ofCivil Procedure (the Code) (735 ILCS 5/2--613(d) (West 2002)) requires that affirmative defensesmust be plainly set forth in the answer. It provides:

"The facts constituting any affirmative defense *** and any defense which by otheraffirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth inthe complaint, *** and any ground or defense, whether affirmative or not, which, if notexpressly stated in the pleading, would be likely to take the opposite party by surprise, mustbe plainly set forth in the answer or reply." 735 ILCS 5/2--613(d) (West 2002).

In the present case, petitioner cannot reasonably assert that he was taken by surprise byrespondent's defense of the enforceability of the liquidated damages provision. Petitioner requestedthat liquidated damages be awarded in his pleading, and respondent specifically denied that petitionershould receive any liquidated damages. Given that it was petitioner who initiated the claim andsought enforcement of the liquidated damages provision, and given respondent's categorical denialthat petitioner was entitled to any liquidated damages, we conclude that respondent sufficientlyalerted petitioner in her answer that she would contest the enforceability of the liquidated damagesprovision. Therefore, we do not believe that petitioner was surprised by respondent's defense, andwe conclude that respondent did not waive the issue of the enforceability of the liquidated damagesprovision. See M.I.G. Investments, Inc. v. Marsala, 92 Ill. App. 3d 400, 405-06 (1981) (holding thatplaintiff could not have been surprised that trial court would scrutinize liquidated damages provisionprior to enforcement even though the issue of the enforceability of the provision was not raised asan affirmative defense).

We further note that the waiver rule is a limitation on the parties and not on the courts. Inre Marriage of Gordon, 233 Ill. App. 3d 617, 664 (1992). The issue of the enforceability of aliquidated damages clause raises a clear question of law, and, if the record is sufficient to permit itsresolution, we may override the considerations of waiver in favor of a uniform body of precedent andto ensure a just result. Catholic Charities of the Archdiocese v. Thorpe, 318 Ill. App 3d 304, 311(2000). Here, this issue raises a clear question of law, and the facts in the record are sufficient topermit its resolution. Accordingly, we conclude that waiver principles do not preclude considerationof the enforceability of the liquidated damages provision of the Agreement.

Petitioner also argues that the question of the enforceability of the liquidated damagesprovision may not be considered under the doctrine of res judicata. The essence of petitioner'sargument is that, because respondent did not challenge the provision at the time it was incorporatedinto the judgment for dissolution, she is barred from challenging the clause on appeal.

The doctrine of res judicata, or estoppel by judgment, holds that " ' "a final judgment renderedby a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and theirprivies, and as to them, it constitutes an absolute bar to a subsequent action involving the same claim,demand, or cause of action." ' " In re Marriage of Hulstrom, 342 Ill. App. 3d 262, 270 (2003),quoting Miller v. Balfour, 303 Ill. App. 3d 209, 214-15 (1999), quoting Sobina v. Busby, 62 Ill. App.2d 1, 17 (1965). The doctrine of res judicata does not apply where a judgment is void, and voidjudgments are subject to collateral attack for lack of jurisdiction or fraud. Hulstrom, 342 Ill. App.3d at 270. Jurisdiction involves not only the power to hear and determine a given case but also thepower to grant the particular relief requested, and every act of the court beyond its jurisdiction isvoid. Hulstrom, 342 Ill. App. 3d at 270, citing Miller, 303 Ill. App. 3d at 215. A void order orjudgment is one entered by a court without jurisdiction of the subject matter or the parties, or by acourt that lacks the inherent power to make or enter the order involved. In re Marriage of Mitchell,181 Ill. 2d 169, 177 (1998). A voidable judgment, on the other hand, is one entered erroneously bya trial court having jurisdiction and is not subject to collateral attack. Mitchell, 181 Ill. 2d at 174. The standard of review for the application of res judicata is de novo. In re Marriage of Jackson, 315Ill. App. 3d 741, 743 (2000).

The dissolution of marriage is entirely statutory in origin and nature. Strukoff v. Strukoff, 76Ill. 2d 53, 60 (1979). Courts in dissolution cases may exercise their powers within the limits of thejurisdiction conferred by the statute, and this jurisdiction depends on the grant of the statute. In reMarriage of Ramsey, 339 Ill. App. 3d 752, 756 (2003), citing Strukoff, 76 Ill. 2d at 60. When a trialcourt presides over matters relating to the dissolution of marriage, it must act in accordance with theauthority vested in it by the applicable provisions of the Illinois Marriage and Dissolution of MarriageAct (the Marriage Act) (750 ILCS 5/101 et seq. (West 2002)). See Rifkin v. Rifkin, 114 Ill. App.3d 555, 558 (1983). When a trial court in a dissolution of marriage proceeding enters an order thatit lacks the inherent power to make under the Marriage Act, its order is void and may be collaterallyattacked at any time. Mitchell, 181 Ill. 2d at 177. However, a trial court's order in a dissolutionproceeding is voidable when the trial court has the authority to enter an order but makes an error "'in determining either the facts, the law or both.' " Mitchell, 181 Ill. 2d at 175, quoting People v.Davis, 156 Ill. 2d 149, 156 (1993).

In Mitchell, the trial court's judgment of dissolution incorporated a marital settlementagreement that specified that the husband would pay a percentage of his income as child support. Mitchell, 181 Ill. 2d at 171. Six years after the entry of the dissolution judgment, the wife filed apetition for rule to show cause, alleging that the husband had failed to comply with the child supportprovisions. Mitchell, 181 Ill. 2d at 171. The trial court determined that the child support provisionin the judgment of dissolution was void and unenforceable because section 505(a)(5) of the MarriageAct required that all child support obligations be expressed in dollar amounts and not as percentages. Mitchell, 181 Ill. 2d at 172-73.

On review, our supreme court agreed that section 505(a)(5) of the Marriage Act required thatchild support obligations must be expressed solely in dollar amounts. Mitchell, 181 Ill. 2d at 174. However, the Mitchell court disagreed with the trial court's conclusion that the child supportprovision of the judgment of dissolution was void and unenforceable. Mitchell, 181 Ill. 2d at 175. The Mitchell court explained that, at the time the trial court entered the judgment of dissolution, ithad jurisdiction over the parties and the dissolution proceeding and "had jurisdiction over the awardof child support." Mitchell, 181 Ill. 2d at 175. The Mitchell court explained that, although the trialcourt's support order was contrary to the requirements of the statute, the trial court nonetheless hadauthority to enter the order. Mitchell, 181 Ill. 2d at 175. The supreme court thus concluded that thetrial court's order was voidable and not subject to collateral attack. Mitchell, 181 Ill. 2d at 175. Because the husband failed to attack the child support provision on direct appeal, the supreme courtconcluded that the provision was enforceable and remanded the case to the trial court for furtherproceedings. Mitchell, 181 Ill. 2d at 178.

As in Mitchell, the parties in this case had the opportunity to bargain for, and to benefit from,the terms of the settlement agreement, including the provisions governing child support. The trialcourt had jurisdiction over the parties and the dissolution proceeding in general, and the trial courtalso had the authority to incorporate a marital settlement agreement into the judgment. Nonetheless,this case is otherwise distinguishable from Mitchell. Section 505(a) of the Marriage Act authorizedthe trial court to enter an order for child support; however, the Marriage Act contains no provisionauthorizing the trial court to require a reasonable security to guarantee respondent's return to Illinois.

The Marriage Act contains a removal provision, which provides a mechanism for a custodialparent to secure leave to remove a minor child from Illinois. See 750 ILCS 5/609 (West 2002). When removal is permitted, the Marriage Act authorizes the trial court to require the party removingthe child to give reasonable security to guarantee the return of the child. 750 ILCS 5/609(a) (West2002). Although the Marriage Act permits the imposition of a reasonable security to guarantee thereturn of the parties' child, the Marriage Act does not give the trial court the authority to impose areasonable security to guarantee the return of the parent to Illinois. The plain language of theAgreement required the return of both respondent and Matthew to Illinois by September 1, 2002. In addition to requiring Matthew's return, the liquidated damages provision expressly stated that itspurpose was "[t]o secure the return of [respondent] to the State of Illinois." In his appellate brief,petitioner states that the liquidated damages provision required both respondent and Matthew toreturn to Illinois. Petitioner also argues that he was "entitled to recover liquidated damages as aresult of [respondent's] failure to return to Illinois with the minor child in contravention of judgment."

As the Marriage Act does not authorize the trial court to require security to guarantee thereturn of a party to Illinois, the trial court here lacked the inherent statutory authority to incorporateinto the parties' judgment of dissolution the liquidated damages provision requiring respondent'sreturn. Because the trial court in this case lacked authority to impose a security to guaranteerespondent's return, the traditional rule governing void and voidable judgments, as stated in Mitchell,indicates that the entirety of the liquidated damages portion of the judgment of dissolution is void. See Hulstrom, 342 Ill. App. 3d at 270-72 (distinguishing Mitchell and holding that the trial courtlacked the authority to divide the parties' social security benefits pursuant to the terms of the parties'marital settlement agreement). While the trial court had jurisdiction over the parties and thedissolution proceedings, its incorporation of the defective liquidated damages provision into thejudgment was void. See Hulstrom, 342 Ill. App. 3d at 273. Because this portion of the dissolutionjudgment was void, the doctrine of res judicata does not preclude respondent's challenge to theliquidated damages provision. See Hulstrom, 342 Ill. App. 3d at 273.

Although this issue was not raised by the parties, we note that the Agreement contained aseverability clause providing that, in the event that a portion of the Agreement is held invalid, "theremainder shall not be affected thereby and shall continue in full force and effect." In light of thisprovision, we have considered the possibility of severing the portion of the liquidated damagesprovision requiring respondent's return to Illinois. If we were to sever the first sentence of theprovision, the remainder of the provision imposes liquidated damages only upon respondent's failureto return Matthew to Illinois. However, after reviewing the testimony at trial and considering theappellate briefs filed in this court, we conclude that the parties intended the liquidated damagesprovision to require both petitioner and Matthew to return to Illinois by September 1, 2002. Lackingindicia that the parties intended that the language contained within the liquidated damages provisioncould be severed, and lacking a specific request to do so by either party, we conclude that ourseverance of the offending language would be improper. See generally Abbott-Interfast Corp. v.Harkabus, 250 Ill. App. 3d 13, 21 (1993) (noting that, in determining whether to sever unenforceableprovisions from an agreement, court must consider whether parties intended provisions of agreementto be severable).

Our discussion of the potential severability of the liquidated damages provision should not beviewed as an endorsement of a more narrowly drawn provision relating only to the return of the child. In light of our determination that the liquidated damages provision is void on the basis that it requiredrespondent's return to Illinois, we need not consider the enforceability of a provision imposingliquidated damages upon respondent for failing to return Matthew to Illinois. Rather, we simply notethat section 609(a) of the Marriage Act specifically addresses the trial court's authority to require theparty removing the child from Illinois "to give reasonable security guaranteeing the return" of thechild. 750 ILCS 5/609(a) (West 2002).

As a final argument, petitioner asserts that respondent should be equitably estopped fromchallenging the liquidated damages provision. Petitioner argues that he agreed to permit respondentto temporarily relocate to Kansas with Matthew in exchange for her promise to return by September1, 2002. Petitioner asserts that he relied on this promise in accepting the Agreement, changing hisposition in reliance on the judgment. We find no basis for the application of equitable estoppel in thiscase. Estoppel arises when a party by his or her words or conduct intentionally or through culpablenegligence induces reasonable detrimental reliance by another on his or her representations. In reMarriage of Schlam, 271 Ill. App. 3d 788, 794 (1995). Here, the record contains no evidence thatrespondent misrepresented or concealed material facts in making her original request to removeMatthew to Kansas. We therefore decline to invoke estoppel.

Rather, in light of our conclusion that the liquidated damages provision of the parties'dissolution judgment was void, we conclude that it was of no effect and could not be enforced by thetrial court. See Hulstrom, 342 Ill. App. 3d at 272. We therefore reverse that portion of the trialcourt's order requiring respondent to pay petitioner damages under the liquidated damages provision. As neither party raises any other allegation of error as to the remaining portions of the trial court'sorder granting the removal petition and denying the petition for rule to show cause, we affirm thatorder in all other respects.

For the foregoing reasons, we affirm in part and reverse in part.

Affirmed in part and reversed in part.

GROMETER, J., concurs.

JUSTICE KAPALA, specially concurring:

I agree with the majority's conclusion that the liquidated damages provision of the maritalsettlement agreement is void. However, I believe that, to the extent that the majority opinion holdsthat parties in a dissolution proceeding cannot fashion a marital settlement agreement that provideswhere the parties will reside, the majority decides an issue not raised in this case. Therefore, Ispecially concur.

The parties in this case have brought only the issue of the liquidated damages provision beforeus. Neither party is contending that the provision of their marital settlement agreement requiring respondent to return to Illinois with Matthew by September 1, 2002, is void. The majority's opinionstates that "the liquidated damages provision is void on the basis that it required respondent's returnto Illinois." Slip op. at 11. The liquidated damages provision did not require respondent's return toIllinois; a separate provision of the marital settlement agreement provided for respondent's andMatthew's return. The liquidated damages provision simply attempted to secure this return. It is theobligation to pay liquidated damages that is the basis of the issue before us; thus, only this provisionshould be held void. We should make no ruling as to the validity of the return provision itself.