Lead Opinion
delivered the opinion of the court:
On Mаrch 2, 1997, in British Columbia, Canada, the respondent, Anezka Bouz, f/k/a Anezka Chrobak, a/k/a Agnes Chrobak, obtained a divorce from the petitioner, Karel Chrobak, a/k/a Charles Chrobak. Subsequently, in Illinois, the petitioner petitioned for a legal separation (see 750 ILCS 5/402 (West 2002)). On November 5, 1997, the trial court granted the petitioner’s petition for a legal separation and incorporated into that order the parties’ settlement agreement. Five years later, the respondent petitioned to vacate the legal separation order and the incorporated settlement agreеment (see 735 ILCS 5/2— 1401(f) (West 2002)), arguing that the trial court lacked subject matter jurisdiction to enter the separation order because the parties were divorced. The petitioner moved to strike and dismiss the petition, claiming, among other things, that the respondent was estopped from challenging the order because she accepted the financial benefits that the settlement agreement gave her. The trial court granted the petitioner’s motion to strike and dismiss, and this appeal followed. On appeal, the respondent contends that the trial court lacked subject matter jurisdiction over the proceeding for a legal separation. The petitioner claims that the respondent has waived this issue or is estopped from challenging the trial court’s jurisdiction. We agree with the petitioner’s estoppel argument. Thus, we affirm.
On December 29, 1962, the parties were married in Chicago, Illinois. They lived in Kane County as a married couple for nearly 30 years and raised three children, who are now adults. In February 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 the petitioner. The petitioner, who had no contacts with Canada, did not appear at the Canadian divorce proceedings. The parties’ marriage was dissolved in Canada on March 2, 1997, but the divorce decree did not address maintenance or the division of marital property.
On July 24, 1997, the petitioner petitioned for a legal separation in Illinois, acknowledging the Canadian divorce decree. The respondent was personally served with the petition for a legal separation, but she failed to attend any of the procеedings. At the subsequent hearing, the petitioner, who was the only witness to testify, agreed that the Canadian divorce order did not address property or 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 that he entered into the agreement freely, that the agreement was fair, and that the respondent signed the agreement. 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. The petitioner stated that the parties split the money he had in a pension, and he provided a survivor’s annuity to the respondent. The petitioner also has paid the respondent maintenance since February 1992, and, pursuant to the agreement, he will continue to pay her $1,000 per month until, among other things, she remarries or starts receiving social security. The trial court found that the respondent was in default by consent or otherwise, granted the petition for a legal separation, and incorporated into the judgment the settlement agreеment, which it found fair, reasonable, and not unconscionable.
On November 6, 2002, the respondent moved to vacate the judgment for a legal separation and the incorporated settlement agreement, arguing that the judgment was void because the parties were 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 and dismiss the pеtition to vacate, arguing, among other things, that the respondent should be estopped from challenging the order for a legal separation and the incorporated settlement agreement because she profited from the order when she accepted maintenance and other benefits. The trial court granted the petitioner’s motion to strike and dismiss, finding, among other things, that the respondent accepted the benefits of the settlement agreement. This timely appeal followed.
On appeal, the respondent claims that the trial court lacked subject mattеr jurisdiction over the legal separation proceedings because the parties were already divorced. The petitioner contends that the respondent has waived the argument or is estopped from challenging the trial court’s subject matter jurisdiction.
Before addressing these arguments, we consider our standard of review. The parties disagree about the proper standard to apply. The respondent claims that we should invoke a de novo standard of review because, among other things, the essential issue raised on appeal is whether the trial court had subject matter jurisdiction over the proceedings. See In re Marriage of Devick,
We next address the petitioner’s waiver and estoppel arguments. We will first consider the petitioner’s claim that the respondent has waived challenging the trial court’s lack of subject matter jurisdiction because she participated in the proceedings without objection. A judgment entered by v. court that lacked subject matter jurisdiction is void and may be attacked at any time and in any proceeding. Adamson,
Before considering the petitioner’s estoppel argument, we note that the special concurrence recites the test for collaterally attacking a void judgment that was delineated in the Restatement (Second) of Judgments § 12 (1982). Our supreme court mentioned this test in In re Marriage of Mitchell,
We now consider whether the respondent is estopped from claiming that the trial court’s order for a legal separation, which incorporated the parties’ settlement agreement, was void for lack of subject matter jurisdiction. In general, estoppel does not apply to void orders. Cash v. Maloney,
The question then becomes whether receiving maintenance and other financial benefits of a legal separation order amounts to “accepting benefits” as used in the estoppel rule. “Accepting benefits” is most often applied in cases where а party remarries in reliance on a divorce decree. See, e.g., In re Marriage of Gryka,
Turning to the facts presented in this case, we hold that the respondent is estopped from attacking the legal separation order, which incorporated the parties’ settlement agreement, because she benefitted from the order. Specifically, in June 1997, the respondent signed the settlement agreement, which gave her, among othеr things, a set amount of maintenance and a portion of the petitioner’s pension with a survivor’s annuity. The trial court entered the order for a legal separation on November 5, 1997, and incorporated into that order the settlement agreement. Although the respondent did not attend any of the proceedings for the legal separation, she was properly served with notice.
Despite knowledge of the Canadian divorce order and the Illinois proceedings for a legal separation, the respondent never timely challenged the trial court’s subject matter jurisdiction. She never objected to the trial court’s jurisdiction over the matter during the proceedings, she did not file a posttrial motion challenging the trial court’s subject matter jurisdiction within 30 days after entry of the legal separation order, and she did not appeal the legal separation order. Instead of taking any of these steps, the respondent, who has never denied that she received financial benefits of the legal separation order, waited five years after the order was entered before she sought to vacate it. These same types of factors were considerеd in Yelton, and we determine that they are equally applicable here. See Yelton,
The special concurrence asserts that the acceptance of benefits cannot be purely financial. We disagree. Courts have recognized that the estoppel rule is a combination of estoppel and ratification. See In re Marriage of Paulius,
The special concurrence stresses that the estoppel rule has rarely been invoked when neither party remarries. In making this observation, the special concurrence quotes the policy behind the rule, which provides that the rights of children to a marriage and spouses of future marriages must be protected. However, the policy also serves to protect the parties to the dissolution proceedings. Specifically, “it is fundamentally and legally inconsistent for divorced parties to accept the benefits of a dissolution judgment, while later asserting the judgment granting them those benefits never existed as a matter of law.” Schlam,
The respondent claims that the estoppel rule should not be invoked and relies on Bratkovich v. Bratkovich,
Several years later, the husband petitioned to expunge the January 1958 order vacating the parties’ first divorce decree. The trial court denied the petition, and the appellate court reversed, holding that the order vacating the divorce decree was void because it was entered more than 30 days after the decree. Bratkоvich,
We agree with Bratkovich in that the situation in that case did not fall within the estoppel rule as it relates to remarriage. We also conclude that Bratkovich does not fit within the estoppel rule that applies outside of remarriage. Specifically, the husband was not accepting benefits of the divorce decree and was not attacking the validity of the divorce decree. To the contrary, the husband claimеd that the divorce decree was valid and that the order vacating the decree was void. That is not the same set of circumstances that is presented in this case. Thus, we determine that the respondent’s reliance on Bratkovich is misplaced.
The respondent also argues that “accepting the benefits of property and maintenance will not require that she be estopped in the absence of a showing that [the petitioner] would be prejudiced in any material way.” In support of this argument, the respondent cites In re Marriage of Reib,
In that context, the husband argued that the wife could not challenge the divorce decree because she accepted $800 per month in maintenance and $32,500 from the sale of the marital residence. The appellate court disagreed, noting that a party cannot attack a divorce decree after enjoying its benefits if the opposing party would be disadvantaged upon reversal of the dissolution order. Reib,
Reib clearly is inapplicable to this case. Specifically, we first note that Reib is factually distinguishable. Here, in contrast to Reib, the respondent is not accepting the dissolution of the parties’ marriage while also claiming that the division of the parties’ property is inequitable. Rather, the respondent contends that the entire order is void for lack of subject matter jurisdiction. Moreover, Reib involved a situation where the trial court’s award greatly disadvantaged the wife. No similar evidence is presented here. More importantly, Reib is legally inapplicable. When a party accepts the benefits of a dissolution judgment, that party is estopped from challenging the judgment as void even in the absence of prejudice to the other party. Schlam,
Because we determine that the respondent is estopped from challenging the trial court’s jurisdiction to enter the legal separation order and incorporate the settlement agreement, we will not address the other issues the parties raise on appeal.
Thus, for the reasons stated above, we affirm the judgment of the circuit court of Kane County.
Affirmed.
Concurrence Opinion
specially concurring:
I agree with the majority’s conclusion that respondent may not successfully challenge the trial court’s subject matter jurisdiction. However, I believe that we need not reach the issue of estoppel to so conclude because I find that respondent cannot collaterally attack subject matter jurisdiction in this case. Therefore, I specially concur.
The majority states that “[a] judgment entered by a court that lacked subject matter jurisdiction is void and may be attacked at any time and in any proceеding. [Citation.]”
“ ‘When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation except if:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking the capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.’ ” (Emphasis omitted.) In re Marriage of Hulstrom,342 Ill. App. 3d at 271 , quoting Restatement (Second) of Judgments § 12 (1982).
In this case, respondent is attempting to attack the trial court’s subject matter jurisdiction five years after the petition for legal separation was granted. Resрondent’s attack was a petition brought under section 2 — 1401(f) of the Code of Civil Procedure (735 ILCS 5/2— 1401(f) (West 2002)). A petition brought under section 2 — 1401 is considered a separate legal proceeding, not a continuation of the old proceeding. Sarkissian v. Chicago Board of Education,
As to the first exception, I do not believe that the subject matter of this case was plainly beyond the jurisdiction of the trial court. The Canadian divorce decree could be acknowledged under principles of comity and the decision to recognize the decree would be in the discretion of the trial court. See In re Marriage of Kohl,
Next, I do not find that the second exception is met. The trial court’s judgment did not overrule or reverse the Canadian divorce. In fact, the trial court’s decision incorporating the marital settlement agreement merely supplemented the Canadian divorce decree by deciding the unresolved issues. I do not find that such a supplementation amounts to infringing upon the authority of the Canadian court.
Finally, the trial court had all facts before it that were necessary to determinе whether it had jurisdiction. Petitioner testified in the trial court proceedings and acknowledged the Canadian divorce decree. Therefore, the trial court was well aware of the decree and chose to exercise jurisdiction. There is no other lack of knowledge alleged by respondent and, thus, the third exception is inapplicable.
Accordingly, as our holding in Hulstrom is controlling and none of the exceptions are applicable, I would hold that respondent cannot collaterally attack subject matter jurisdiction in this case. Therefore, I would not rely on estоppel to resolve this case. I note that the majority contends that in Mitchell our supreme court elected not to adopt the Restatement rule enunciated in Hulstrom. I disagree. The court in Mitchell simply stated that “[t]he parties do not ask us to adopt the rule expressed in the Restatement, however, and therefore we need not decide in this case whether to take that step.” In re Marriage of Mitchell,
Moreover, were I to address the estoppel issue, I would find that its application is inappropriate here. It is true that courts have used the doctrine of estoppel by remarriage to bar parties from challenging the subject matter jurisdiction of the trial court. See, e.g., In re Marriage of Yelton,
In my opinion, the policy grounds behind the estoppel by remarriage doctrine support my conclusion. It has long been recognized that the rule of estoppel in marriage cases is “founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce.” McDonald,
“Estoppel by remarriage serves several purposes. It protects the marital status and character of third parties who marry believing their spouse has been granted a valid and final divorce. [Citation.] Estoppel by remarriage also ensures a child, one or both of whose parents divorced before remarrying, has the benefit of a lawfully married mother and father. [Citation.] Finally, estoppel by rеmarriage protects the rights of other persons whose rights have been finalized by the dissolution judgment. [Citation.] Two policies underlie these considerations. First, the rights and position of a third party dependent on the validity of a dissolution judgment should not be put in jeopardy by a motion to vacate. Second, it is fundamentally and legally inconsistent for divorced parties to accept benefits of a dissolution judgment, while later asserting the judgment granting them those benefits never existed as a matter of law.” Schlam,271 Ill. App. 3d at 793-94 .
In other words, the importance of the institution of marriage, and all the rights and responsibilities cоncomitant with the institution, outweigh the importance of ensuring the integrity of judgments. I simply do not believe that there are similar policy concerns in this case where the benefits accepted did not involve remarriage but were simply financial. The jurisdiction of a court is fundamental to the court’s ability to render a decision. Du Page County Election Comm’n v. State Board of Elections,
The majority comments that the precedent for aрplying estoppel when financial benefits are present is long established. I once again reiterate that in all but one of the cases cited by the majority there was a remarriage and, thus, the facts of those cases differ in a material sense from this case. Furthermore, an award of financial benefits can easily be undone through repayment, whereas the ramifications when a remarriage is involved cannot be so easily resolved. Moreover, to the extent that the cases cited by the majority do stand for the proposition that financial benefits alone are sufficient to evoke estoppel, I disagree with such a holding for the reasons I have outlined above.
Furthermore, while I recognize that my analysis forecloses a collateral attack in this case, the majority’s reasoning forecloses collateral attacks in marriage dissolution cases where such a foreclosure is not warranted. For example, in a case where the trial court adjudicated issues plainly beyond its jurisdiction, the reasoning I employed would allow the collateral attack, as the first exception enunciated in Hulstrom would be applicablе. However, under the majority’s approach, if a party accepted the financial benefits flowing from such a judgment, he would be estopped from challenging the judgment. In a nutshell, the majority’s approach would let stand the judgment of a court, which was plainly without jurisdiction to enter the judgment, simply because money had changed hands. I believe that such a result is antithetical to the principle that the power of a court to render a decision is fundamental. Accordingly, I would not extend the concept of estoppel by remarriage to encompass the facts of this case, where the only benefit accepted is financial.