People Ex Rel. Gibbs v. Ketchum , 219 Ill. Dec. 696 ( 1996 )

                             NO. 4-95-1012

                        IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS ex rel.) Appeal from

TAMMY GIBBS, as Parent and Guardian on     ) Circuit Court of    

behalf of RICHARD GIBBS, a Minor,          ) Champaign County

         Plaintiff-Appellant and Cross-   ) No. 91L1383

         Appellee,                        )

         v.                               )

KENNETH E. KETCHUM,                        ) Honorable

         Defendant-Appellee and Cross-    ) Donald R. Parkinson,

         Appellant.                       ) Judge Presiding.

_________________________________________________________________

         JUSTICE GARMAN delivered the opinion of the court:

         This is an appeal by plaintiff Tammy Gibbs of an order

denying her motion to vacate certain orders entered by the trial

court in connection with custody of her minor child and child

support payments to be paid by the child's father, defendant

Kenneth Ketchum.  The basis of her attack on the orders was alleged

lack of jurisdiction in the trial court to enter the orders.  We

now affirm.  

         The minor child of the parties was born on July 19, 1991.

A paternity action was commenced by the State.  Ultimately,

defendant admitted paternity after blood tests were completed.  A

judgment of parentage was entered on May 7, 1992.  An order for

support was entered on the same date, ordering defendant to pay

$126 biweekly for support of the child.    

         On December 4, 1992, defendant filed a petition seeking

a reduction of his child support payments, alleging that he and

plaintiff shared an approximately equal amount of time with the

child.  On January 26, 1993, counsel entered an appearance for

defendant and made an oral motion to withdraw defendant's petition.

The motion was allowed and the petition stricken.  On March 10,

1993, a "STIPULATION TO SET CUSTODY AND JOINT PARENTING AGREEMENT"

was filed, which had been signed by both parties.  That document

stated in relevant part:  (1) the parties had decided it was in the

best interest of the child to have a continuing, close relationship

with both his parents, and they had decided to share joint legal

and physical custody; (2) they would spend approximately equal

amounts of time with him; (3) while plaintiff has physical custody,

she may remove the child from the State of Illinois to the State of

Ohio, where she anticipates living; and (4) defendant will continue

to maintain health insurance on the child through his employer and

pay all uninsured expenses.  This stipulation was prepared by

counsel for defendant.  Plaintiff signed a "WAIVER" in which she

acknowledged her right to obtain counsel and stated her election to

proceed without counsel.  On March 16, 1993, the trial court

entered an order approving the stipulation which provided that (1)

the parties have agreed they will share joint legal and physical

custody of the minor child and have agreed to share an approximate-

ly equal amount of time with him; (2) the parties have agreed to

abate child support payments; and (3) the court has reviewed the

stipulation and finds the matters therein are fair, reasonable, not

unconscionable, and in the best interest of the child.  

         On January 13, 1994, defendant filed a petition asking

that plaintiff be held in indirect civil contempt, alleging that

(1) since March 16, 1993, the parties had shared custody of the

minor child on alternating weeks and that they had agreed to

Christmas visitation with plaintiff on December 23 and 24, 1993;

(2) the child was not returned to defendant by plaintiff at the end

of that time; (3) defendant left for vacation on December 29, 1993,

and, upon returning, was unable to locate plaintiff or the child;

(4) in attempting to find plaintiff, defendant learned she had

moved out of her trailer on December 24, 1993, without notice; and

(5) when plaintiff did call defendant, she told him she intended to

keep the child to "potty train" him and refused to tell defendant

her whereabouts, although she did provide him with a telephone

number in the Gays, Illinois, vicinity.    

         On September 12, 1994, a "STIPULATION TO MODIFY JOINT

CUSTODY AND PARENTING AGREEMENT" was filed, signed by both parties

and their respective counsel.  It alleged that after a partial

hearing on defendant's petition on February 16, 1994, the court

ordered plaintiff to return the minor child to defendant and

plaintiff requested a continuance to hire an attorney.  The

stipulation further provided that the parties agreed plaintiff is

in indirect civil contempt and that the court should reserve the

issue of sanctions.  It also provided detailed custody arrangements

and that defendant would be allowed to make up time lost with the

minor child due to plaintiff's conduct.  Plaintiff also agreed to

pay defendant's attorney fees in the amount of $341.  The stipula-

tion concluded by saying that all other provisions of the March 16,

1993, order were to remain in full force and effect.  An order was

entered approving this stipulation on September 12, 1994.  

         On March 29, 1995, defendant filed a pro se petition for

a rule to show cause, alleging that plaintiff failed to pay the

attorney fees she had been ordered to pay.  On March 29, 1995, the

court issued a rule to show cause and ordered plaintiff to appear

on May 31, 1995.  On April 28, 1995, counsel for plaintiff filed a

motion to vacate the March 16, 1993, order and discharge the March

29, 1995, rule to show cause.  The motion alleged that (1) the

March 10, 1993, stipulation contained no agreement to abate child

support, although the March 16, 1993, order approving the stipula-

tion made such a finding; (2) prior to entry of the order, there

was no pleading on file asking for abatement of defendant's child

support payments since defendant's pro se petition for reduction of

child support had been stricken; (3) in the absence of a stipula-

tion between the parties to abate child support and of a pleading

asking for such relief, the trial court lacked subject-matter

jurisdiction and "inherent power and authority" to enter the March

16, 1993, order abating child support and, therefore, the order is

void; (4) since the record must stand as if the March 16, 1993,

order was never entered, the March 29, 1995, rule to show cause

must be discharged; and (5) since the March 16, 1993, order abating

defendant's child support is void, his original child support

obligation is still in effect and he is liable for arrearage and

for current support.  

         On October 13, 1995, defendant filed a motion to modify

or abate child support, asking the court (in the event its orders

of March 16, 1993, and September 12, 1994, are found to be void and

are vacated) to reduce or abate defendant's child support, alleging

a substantial change in circumstances had occurred in regard to the

split-custody arrangement.  

         On October 18, 1995, plaintiff filed an amended motion to

vacate, in which she also alleged the trial court was without

jurisdiction to modify the custody of the minor child in its March

16, 1993, order.  On that point, she alleged (1) there was no

explicit order of custody when the judgment of parentage was

entered and, pursuant to section 14(a)(2) of the Illinois Parentage

Act of 1984 (Parentage Act) (750 ILCS 45/14(a)(2) (West 1992)),

custody was thereby granted to plaintiff, since the order estab-

lished defendant's child support obligation; (2) the stipulation

entered into (March 1993) was therefore a stipulation to modify

custody, rather than set initial custody; (3) sections 601 and 610

of the Illinois Marriage and Dissolution of Marriage Act (Marriage

Act) (750 ILCS 5/601, 610 (West 1992)) require that modification of

custody proceedings be initiated by a petition to modify, and the

court must find by clear and convincing evidence that a change of

circumstances has occurred and modification is necessary to serve

the best interest of the child; (4) no such petition was filed, and

no findings were made by the trial court in its March 16, 1993,

order; and (5) therefore, the court lacked subject-matter jurisdic-

tion and "inherent power and authority" to enter the order

modifying custody.  

         Defendant submitted a request to admit facts to plaintiff

which asked her to admit that (1) on March 9, 1993, she met with

defendant and his attorney and reviewed the stipulation and signed

it; (2) plaintiff reviewed the draft order signed by the court on

March 16, 1993, which provided that the parties had agreed to abate

child support payments; and (3) after the March 16, 1993, order,

she stopped receiving child support payments from defendant and

never informed him she believed he was improperly withholding the

payments from her.  Plaintiff filed objections to some of the

questions, based upon the parol evidence rule.  

         Defendant filed a memorandum of law in response to

plaintiff's amended motion to vacate, in which he set forth a

statement of facts, alleging that (1) he and plaintiff met in his

attorney's office in March 1993, and they reviewed the stipulation

and the draft order entered by the court on March 16, 1993; (2)

plaintiff had orally agreed that defendant's child support should

be abated and understood the issue was to be submitted for the

court's approval; (3) in doing so, plaintiff authorized defendant's

attorney to submit the stipulation and draft order reflecting the

abatement of child support; (4) at no time after March 16, 1993,

did plaintiff request or demand that the abated child support

payments be resumed; and (5) the omission of the agreement on

abatement of child support from the March 1993 stipulation was by

inadvertence, and the draft order of March 16, 1993, accurately

reflected the parties' agreement.  The memorandum also alleged that

should the trial court decide that its March 16, 1993, order was

void, plaintiff should be estopped from enforcing any provision of

the prior order for support or custody, arguing that defendant

relied upon plaintiff's agreement to the terms of custody and

support by ceasing all child support payments, providing for the

child when he has physical custody, and continuing to provide

medical insurance for him.  The memorandum also argued that if the

court vacated its March 16, 1993, order, the September 12, 1994,

order should remain in effect because of the language in that

order, providing the parties would abide by the unaltered terms of

the stipulation.  Defendant viewed this as a reaffirmance by

plaintiff of the March 1993 stipulation.  Defendant also asked that

plaintiff be ordered to pay his legal fees because of her bad

faith.  The memorandum was supported by an affidavit from defendant

which supported the factual allegations of the memorandum.  

         Plaintiff filed a motion asking that the memorandum be

stricken, the defendant sanctioned, and that the trial judge recuse

himself.  The motion alleged the memorandum was an obvious attempt

to present a factual scenario to the court prior to the hearing on

plaintiff's motion to vacate and was an ex parte communication with

the court as to what are arguably inadmissible facts and is an

"end-run" around the objections made by plaintiff to the request to

admit facts.  

         A hearing was held on November 20, 1995, on the motion to

vacate.  The court allowed plaintiff's motion to strike defendant's

memorandum on the basis that it was filed too late, but allowed

defense counsel to argue whatever she wanted from the memorandum.

Defense counsel attempted to call defendant's former attorney,

James Mullady, to testify as to how the March 1993 stipulation was

reached and agreed to by the parties.  The court allowed an offer

of proof in which Mullady testified that plaintiff indicated her

agreement (at the March 9, 1993, meeting) to the fact of the child

support abatement and joint custody.  The court sustained

plaintiff's objection to the proposed testimony.  The court

acknowledged the March 1993 stipulation did not state the parties

were agreeing to abate child support, but found such an agreement

to be fairly inferred from the contents of the stipulation.  The

court also noted it is desirable to encourage parties to agree upon

matters of custody and child support, if possible.  The court

denied plaintiff's amended motion to vacate and found defendant's

request to admit facts and motion to reduce or abate support moot.

Plaintiff filed her notice of appeal.  Defendant has filed a notice

of cross-appeal, alleging that (1) plaintiff should be equitably

estopped from enforcing the prior order on custody and child

support; (2) the trial court erred in striking defendant's

memorandum in opposition to plaintiff's motion to vacate; and (3)

the order of September 12, 1994, should remain in force, even if

the March 16, 1993, order is vacated.

         Section 14(a)(2) of the Parentage Act provides that if a

judgment of parentage contains no explicit award of custody, the

establishment of a support obligation or visitation rights in one

parent shall be considered a judgment granting custody to the other

parent.  Therefore, the original judgment of parentage operated to

vest custody of the child in plaintiff.

         Plaintiff points out that the March 16, 1993, order did

not initially set custody; rather, it modified her sole custody of

the child which was initially set in the judgment of parentage.

She argues that the March 16, 1993, order is void because there

were no pleadings on file requesting modification of custody or

support.  She also argues that the statutory scheme of the Marriage

Act, with respect to modification of child custody and child

support, limits the jurisdiction of the circuit court by requiring

a motion or petition be filed requesting the relief sought.  She

notes that section 610(a) of the Marriage Act (750 ILCS 5/610(a)

(West 1992)) refers to a "motion to modify a custody judgment," and

that section 510(a) of the Marriage Act (750 ILCS 5/510(a) (West

1992)) also refers to the filing of a "motion for modification" of

child support.  

         "A judgment is void if the court lacked juris-

         diction over the parties or subject matter, or

         if it 'lack[ed] the inherent power to enter

         the particular order involved.'  [Citation.]

         It is axiomatic that a void judgment can be

         attacked at any time, directly or collateral-

         ly.  ***

              *** Circuit courts have 'original juris-

         diction of all justiciable matters' with only

         limited exceptions.  [Citation.]  A justicia-

         ble question is one which involves the adverse

         legal interests of the parties.  [Citation.]

         The court's authority to exercise its juris-

         diction and resolve a justiciable question is

         invoked through the filing of a complaint or

         petition.  [Citations.]  These pleadings

         function to frame the issues for the trial

         court and to circumscribe the relief the court

         is empowered to order; a party cannot be

         granted relief in the absence of corresponding

         pleadings.  [Citations.]  Thus, the circuit

         court's jurisdiction, while plenary, is not

         boundless, and where no justiciable issue is

         presented to the court through proper plead-

         ings, the court cannot adjudicate an issue sua

         sponte.  Orders entered in the absence of a

         justiciable question properly presented to the

         court by the parties are void since they

         result from court action exceeding its juris-

         diction."  Ligon v. Williams, 264 Ill. App. 3d

         701, 706-07, 637 N.E.2d 633, 637-38 (1994).

         At oral argument in this appeal, plaintiff's counsel

argued that a stipulation is not a pleading, a position with which

we do not agree.  Plaintiff has cited no cases in support of such

an argument.  In support of her argument that the March 16, 1993,

order is void, she cites the Ligon case in which plaintiff filed a

complaint to establish defendant's paternity.  Three attempts to

serve defendant were unsuccessful.  Finally, defendant was served

and he, along with the assistant State's Attorney, appeared at a

hearing.  Plaintiff was not given notice of the hearing and was not

present.  Defendant admitted paternity, and the trial judge awarded

custody to him.  Plaintiff filed a petition under section 2-1401 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1992)),

seeking to have the court's order awarding custody vacated.  The

trial court denied her motion, and she appealed.  The appellate

court held the custody judgment void, noting that plaintiff had

received no notice of the hearing.  The court also noted plaintiff

sought no relief on the custody issue in her complaint, nor had

defendant filed any pleading asking for custody.  Thus, the court

acted without jurisdiction and its custody order was null and void.

Ligon, 264 Ill. App. 3d at 709, 637 N.E.2d at 639.  She also cites

Blisset v. Blisset, 123 Ill. 2d 161, 526 N.E.2d 125 (1988), in

which the court held that an agreement whereby a divorced mother

agreed to waive future child support payments in return for the

father foregoing future visitation was unenforceable.  The court

emphasized that modification of child support and visitation are

exclusively judicial functions and that parents can create an

enforceable agreement for modification of support only by petition-

ing the court for modification and then establishing, to the

court's satisfaction, that an agreement reached between the parents

is in the best interests of the children.  Blisset, 123 Ill. 2d at

168, 526 N.E.2d at 128.  

         Plaintiff also cites this court's decision in In re

Marriage of Azotea, 200 Ill. App. 3d 182, 558 N.E.2d 550 (1990),

where the trial court awarded a judgment to the wife for delinquent

child support owed by the husband.  However, the wife had not

petitioned the court on the arrearage; the issue arose during the

wife's testimony in which she stated she had withheld her own child

support payments because the husband still owed her back child

support.  On appeal, this court reversed the award of back child

support to the wife, holding there was no proper pleading before

the court on that issue and that the court erred in determining the

arrearage.  Azotea, 200 Ill. App. 3d at 185, 558 N.E.2d at 553.  

         The Blisset case is inapplicable to the situation in the

instant case.  In Azotea, this court merely held it was error for

the trial court to decide the arrearage issue, not that the court's

order was void or that it lacked jurisdiction to enter the order.

The Ligon case is also largely inapplicable because, in that case,

the trial court had nothing whatsoever before it asking that

custody of the child be awarded to one party or the other.  In

addition, the mother did not have notice that the court would

decide the custody issue, and the order failed for that reason as

well.  In the instant case, the court had before it a stipulation

signed by both parties stating that they would have joint legal and

physical custody of the child.  Stipulations which simplify,

shorten, or settle litigation between parties are to be encouraged.

They will be upheld unless they are fraudulent or contrary to

public policy.  In re Marriage of Ealy, 269 Ill. App. 3d 971, 974-

75, 647 N.E.2d 307, 310 (1995).  While there was no pending

petition or motion before the trial court in this case, that fact

alone will not deprive the court of the authority to act where the

parties agree in a stipulation concerning some matter which

requires resolution by the court.  

         Plaintiff also points out that two years from the date of

the judgment of parentage had not passed prior to the March 16,

1993, order and there was no waiver of the two-year limitation on

custody changes contained in section 610(a) of the Marriage Act.

However, that section allows the parties to stipulate that a motion

for change of custody may be filed within the two-year period.  The

stipulation by the parties in this case adequately fulfilled that

requirement.  

         Plaintiff next argues that the March 16, 1993, order is

void because of the provision in the order that the parties agreed

to abate child support when there was no statement to this effect

in the stipulation.  Although this might otherwise be a difficult

question, it is easier to resolve here because in the parties'

September 12, 1994, stipulation, plaintiff, who was then represent-

ed by counsel, reaffirmed all provisions of the March 16, 1993,

order not modified by the September 12, 1994, order.  The provi-

sions as to child support were not modified by that order.  We note

that less than two years passed between the March 16, 1993, order

and the September 12, 1994, stipulation and order.  Therefore,

plaintiff could have filed a motion to vacate the March 16, 1993,

order under section 2-1401 of the Code.  Instead, she indicated her

agreement to the continued effectiveness of the child support

abatement in the September 12, 1994, stipulation.  Having done so,

she may not now complain that the trial court exceeded its

authority in entering the March 16, 1993, order.  

         In light of our decision, we need not address the issues

raised in defendant's cross-appeal.  For the reasons stated, the

trial court's order denying plaintiff's amended motion to vacate is

affirmed.      

         Affirmed.

         GREEN and McCULLOUGH, JJ., concur.