Find Legal Information

28 June 2000

PRESIDING JUSTICE COOK delivered the opinion of thecourt:

Diana Hoover (Diana) and Don Hoover (Don) married inIowa in 1975. They lived together until approximately November4, 1993, at which time Diana moved to Illinois. On March 9,1994, Diana filed a petition for dissolution of marriage in thecircuit court of McLean County. Summons was issued to Don, aGeorgia resident, and he was personally served. The petition fordissolution requested that the court award Diana a judgment ofdissolution, her nonmarital property, her equitable share of themarital property, and other relief as the court deemed equitable. Don did not appear or file any responsive pleadings after beingserved.

On September 15, 1994, Diana sent notice to Don thatthe case was set for a default hearing on the petition fordissolution of marriage. Don did not appear for the hearing, andan order of default was entered. After hearing testimony fromDiana, the circuit court granted the petition for dissolution andruled on the division of various assets and liabilities. TheSeptember 27, 1994, judgment of dissolution attributes over$65,000 in liabilities to Don, for which he will "hold [Diana]harmless." The court also entered judgment against Don for$22,500, representing property Diana had contributed to startDon's business.

On March 12, 1998, Diana filed a citation notice,seeking collection of the $22,500 judgment. On April 15, 1998,Don, through his attorney, filed a general appearance. Twomonths later, Don filed a motion to dismiss the citation on thegrounds that the court lacked personal jurisdiction becauseIllinois was not the matrimonial domicile and he had not submitted to jurisdiction in Illinois. 735 ILCS 5/2-209 (West 1998). Two days later, Don filed a special and limited appearance,attacking jurisdiction on the underlying judgment. Don agreedthat the judgment dissolving the marriage was proper; however, hemoved to vacate the judgment as it related to property.

After hearing arguments, the court entered an orderstriking Don's special and limited appearance, finding that thegeneral appearance of April 15, 1998, subjected Don to personaljurisdiction and retroactively applied to the prior judgment ofdissolution. Don moved for reconsideration of the order, and thecircuit court denied the motion.

The issue presented for our review is whether Don'spostjudgment general appearance in response to the citationproceeding waived his objection to personal jurisdiction inIllinois as it relates to the judgment of dissolution. We findthat the circuit court's retroactive application of Don's generalappearance was in error.

Initially, we note that the circuit court did have inrem jurisdiction in this case, meaning jurisdiction over themarital status. In re Marriage of Brown, 154 Ill. App. 3d 179,182, 506 N.E.2d 727, 729 (1987). Section 401(a) of the IllinoisMarriage and Dissolution of Marriage Act provides in part:

"The court shall enter a judgment ofdissolution of marriage if at the time theaction was commenced one of the spouses was aresident of this State *** and the residence*** had been maintained for 90 days nextpreceding the commencement of the action orthe making of the finding ***." 750 ILCS5/401(a) (West 1994).

Diana met the requirements of section 401 in March 1994 when shefiled her petition for dissolution. Further, Don was personallyserved in Georgia with summons and the petition. Thus, thecircuit court had jurisdiction over the marital status andproperly terminated the marriage. However, before the circuitcourt can enter binding orders relating to property, it must havepersonal jurisdiction over the parties. Brown, 154 Ill. App. 3dat 186, 506 N.E.2d at 731; see R. Cook, Jurisdiction in Dissolution of Marriage Cases, 77 Ill. B.J. 266 (1989).

It is essential to the validity of a judgment that thecourt have subject-matter jurisdiction and in personam jurisdiction over the parties. Christiansen v. Saylor, 297 Ill. App. 3d719, 723, 697 N.E.2d 1188, 1191 (1998). A party over whom acourt fails to acquire jurisdiction may, at any time, eitherdirectly or collaterally, attack and vacate a judgment that thecourt enters against the party. Saylor, 297 Ill. App. at 723,697 N.E.2d at 1191.

Diana argues that Don's general appearance and motionto dismiss constituted a consent to personal jurisdiction inIllinois. The Code of Civil Procedure makes a distinctionbetween "general appearances" and "special appearances." 735ILCS 5/2-301 (West 1998). Section 2-301(a) of the Code of CivilProcedure (Code) provides:

"Prior to filing any other pleading ormotion, a special appearance may be madeeither in person or by attorney for the purpose of objecting to the jurisdiction of thecourt over the person of the defendant. Aspecial appearance may be made as to an entire proceeding or as to any cause of actioninvolved therein. Every appearance, prior tojudgment, not in compliance with the foregoing is a general appearance." (Emphasisadded.) 735 ILCS 5/2-301(a) (West 1998).

We note that section 2-301 was extensively amended,effective January 1, 2000, to eliminate some of the technicalchallenges that had been made to objections to jurisdiction. Pub. Act 91-145,