Gile v. Gile

Case Date: 09/11/2002
Court: 5th District Appellate
Docket No: 5-01-0209 Rel

Notice

Decision filed 09/11/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0209

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


GRACE JEANNE GILE, ) Appeal from the
) Circuit Court of
           Plaintiff, ) Williamson County.
)
v. ) No. 63-CH-156
)
WILLIAM BUTLER GILE, SR.,  )
)
          Defendant )
)
(Grace Jeanne Gile, Petitioner-Appellant, v. )
Don Prosser, Executor of the Estate of ) Honorable
William Butler Gile, Sr., Respondent- ) Ronald Eckiss,
Appellee).  ) Judge, presiding.


PRESIDING JUSTICE MAAG delivered the opinion of the court:

Grace Jeanne Gile (petitioner) filed a petition in the circuit court of WilliamsonCounty on June 14, 2000, asking the court to declare that a 1963 decree dissolving themarriage of petitioner and William Butler Gile, Sr., was void because it was not signed bythe presiding judge and because it contained no provision for child support. The petitionalternatively asked the court to enter an order requiring William's estate to pay child supportand establishing the amount of support due and owing with interest. The action wasinstituted after William's death. The executor of William's estate filed a motion for aninvoluntary dismissal, and the trial court granted the motion and dismissed the petition onthe ground that the court lacked jurisdiction because the complaint had not been commencedwith the time allowed by law. Petitioner has appealed.

For the purposes of the motion, the following facts are not in dispute. Petitioner andWilliam were married on June 17, 1950. The parties were divorced in November 1955 inWilliamson County, Illinois. One child, Grayson Eugene Gile, was born to the coupleduring the marriage. Petitioner and William remarried on August 29, 1962. On October 24,1963, petitioner filed and personally presented her petition for the dissolution of the secondmarriage in the circuit court of Williamson County. William did not appear personally. Hefiled a written entry of appearance, a waiver of service, and a consent to an immediatehearing and a default. A decree, file-stamped October 24, 1963, states that the divorce wasgranted and that petitioner was awarded the care, custody, and control of the minor child,then five years old. The decree is unsigned and neither party was able to produce a decreecontaining the signature of the judge who presided over the divorce. A certified copy of theofficial registry of the Williamson County circuit court recites the decree, almost verbatim,and indicates that the court approved and entered the decree on October 24, 1963, and thatthe clerk of the court filed the decree in the record on October 30, 1963.

Neither party remarried. On April 18, 1999, William passed away. An estate wasopened and William's will was admitted to probate in Jackson County, Illinois. The executorof the estate notified Grayson that an estate had been opened and that he was a beneficiaryunder his father's will. In his will, William left $1,000 to Grayson and nothing to petitioner. Petitioner filed an action in the probate division of the Jackson County circuit court. She sought to renounce the will on the grounds that the 1963 divorce decree was voidbecause it was not signed by a judge and it did not provide for child support. The probatejudge determined that the validity of the decree should be resolved in the county where thedivorce petition was filed. Petitioner then filed an action in the circuit court of WilliamsonCounty. The petition alleged that the 1963 divorce decree is a void decree because it wasnot signed by the presiding judge and because it contained no provision for child support. Petitioner sought an order declaring that the 1963 decree is void and that the parties werenever divorced. In the alternative, petitioner sought an order nunc pro tunc that required thepayment of child support and that established the amount of support due and owing withinterest. The trial court determined that it lacked jurisdiction because the complaint was notcommenced with the time allowed by law, and it dismissed the petition.

On appeal, petitioner contends that the trial court erred in granting the estate's motionfor an involuntary dismissal. Before considering whether petitioner's action was timelyfiled, we must determine whether the decree is void. A void order may be attacked, eitherdirectly or collaterally, at any time. In re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d801, 806 (1994). A void order or judgment is one entered by a court without jurisdictionof the subject matter or the parties or by a court that lacks the inherent power to make orenter the order involved. In re Marriage of Mitchell, 181 Ill. 2d 169, 177, 692 N.E.2d 281,285 (1998); In re Estate of Steinfeld, 158 Ill. 2d at 12, 630 N.E.2d at 806. In contrast, avoidable order or judgment is one entered erroneously by the court having jurisdiction andis not subject to collateral attack. In re Marriage of Mitchell, 181 Ill. 2d at 174, 692 N.E.2dat 284. Once a court acquires jurisdiction, an order will not be rendered void merely becauseof an error or impropriety in the issuing court's determination of the law, and a court will notlose jurisdiction merely because it makes a mistake in determining the facts, the law, or both. In re Marriage of Mitchell, 181 Ill. 2d at 174-75, 692 N.E.2d at 284.

In this case, petitioner has not claimed that the decree is void because the court lackedjurisdiction over the parties or the subject matter. Petitioner initially contends that the decreeis void because there is no evidence that it was signed by the judge. However, aside fromreferences to Illinois Supreme Court Rule 272 (137 Ill. 2d R. 272), petitioner has cited noauthority to support her claim that a judicial signature is required to establish the validity ofa decree or judgment.

At the outset, we note that Supreme Court Rule 272 went into effect on January 1,1967. 36 Ill. 2d R. 272. The decree at issue was entered in 1963, several years before Rule272 was conceived. Prior to the adoption of Rule 272, an oral pronouncement of the court'sdecision, made in open court, or a written pronouncement of the court's decision, approvedby the judge and filed with the clerk of the court, constituted the entry of the judgment in acase at law, and a written decision, approved by the chancellor and filed for the record,constituted the entry of the judgment in a case in equity. People ex rel. Schwartz v.Fagerholm, 17 Ill. 2d 131, 135-37, 161 N.E.2d 20, 23-24 (1959). It is the entry of thejudgment or decree on the record that gives it validity. Horn v. Horn, 234 Ill. 268, 274, 84N.E. 904, 906 (1908) ("It is not necessary that the decree should be signed by the chancellor,but its entry on the record by the clerk gives it validity."); Dunning v. Dunning, 37 Ill. 306,316 (1865) ("there is no law with which we are familiar, requiring the presiding judge of aCircuit Court to sign a decree which he directs the clerk to enter"). A decree was not validand effective unless it was signed or approved by the chancellor or court and entered on therecord. See Jackman v. North, 398 Ill. 90, 105-06, 75 N.E.2d 324, 332 (1947); McKeon v.McKeon, 4 Ill. App. 2d 515, 524, 124 N.E.2d 564, 569 (1955). Although Rule 272 is notapplicable in this case, we note that its adoption did not abrogate this principle. In fact, Rule272 recognizes that a final judgment may be entered without the signature of the judge. 137Ill. 2d R. 272; Robertson v. Robertson, 123 Ill. App. 3d 323, 326, 462 N.E.2d 712, 714(1984).

In this case, the parties produced an unsigned, file-stamped decree and a certifiedcopy of the official registry of the Williamson County circuit court. The decree, file-stamped October 24, 1963, granted the divorce and awarded the care, custody, and controlof the minor child to petitioner. The court registry documents the appearances of petitionerand her counsel and sets out the court's findings and judgment. It indicates that the courtapproved and entered the decree on October 24, 1963, and that the clerk of the court filedthe decree in the record on October 30, 1963. There is sufficient evidence in this record toshow that the 1963 decree was a written pronouncement, approved by the presiding judgeand entered into the official court registry by the clerk as directed by the circuit court. Thus,it is a judgment of record and is valid. See Fagerholm, 17 Ill. 2d at 137-38, 161 N.E.2d at23-24; Scott v. Dreis & Krump Manufacturing Co., 26 Ill. App. 3d 971, 982-84, 326 N.E.2d74, 81-82 (1975). That the divorce decree was not signed by the presiding judge or,alternatively, that a signed copy of the decree cannot be located does not render the decreeinvalid.

Petitioner also contends that the decree is void because the trial court lacked authorityto enter the judgment in the absence of some provision for child support. Petitioner arguesthat the failure to provide for child support in the divorce decree violated Illinois publicpolicy.

The divorce decree at issue was entered in 1963. At that time, the Divorce Actgoverned dissolution actions. Ill. Rev. Stat. 1963, ch. 40,