Opinion
No. 1-18-1774 No. 1-19-0162 (cons.)
12-20-2019
In re MARRIAGE OF MICHELE BERRY, Petitioner-Appellee, and MICHAEL BERRY, Respondent-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
No. 14 D 330603
Honorable Mark Joseph Lopez, Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.
Justices Rochford and Delort concurred in the judgment.
ORDER
¶ 1 Held: We affirm the order of the circuit court granting the petitioner's emergency petition to escrow funds as the circuit court had jurisdiction over the entire divorce proceedings.
¶ 2 The respondent, Michael Berry, appeals, pro se, from an order of the circuit court that: (1) required him to immediately execute a quitclaim deed transferring his interest in the marital property, located at 13819 Jarvis Road, Cypress, Texas (marital residence), to the petitioner,
Michele Berry, and (2) ordered the petitioner to execute any and all documents to effectuate the sale of the marital residence and the distribution of the proceeds from the sale. For the reasons that follow, we affirm.
¶ 3 The following factual recitation necessary to the resolution of this appeal is adduced from the pleadings and orders of record. On September 19, 1981, the respondent and the petitioner were married in Illinois and, subsequently, moved to Texas where they acquired the marital residence. In October of 2013, the petitioner filed for divorce in Texas and, in November of 2013, returned to Illinois. In June of 2014, the petitioner's attorney withdrew as counsel in the Texas divorce proceedings, and the petitioner filed a motion to voluntarily non-suit the Texas divorce proceedings, which was granted on July 14, 2014. On June 19, 2014, the petitioner filed for divorce in Illinois. On December 7, 2015, the circuit court of Cook County entered a bifurcated judgment of dissolution of marriage, finally resolving only the issue of the grounds for divorce and leaving all other ancillary issues pending.
¶ 4 On June 25, 2018, the petitioner filed an Emergency Petition to Escrow Funds and for Other Relief seeking an order, requiring, inter alia, that the respondent: (1) execute a disbursement of proceeds statement directing Allegiance Title to place the marital residence proceeds in escrow, and (2) execute a limited power of attorney in favor of the petitioner to execute any and all documents relating to the sale of the marital residence and to sign any documents necessary to place the proceeds of the sale in escrow. On July 27, 2018, the trial court entered an order on the emergency petition that required the respondent to execute a quitclaim deed transferring his interest in the marital residence to the petitioner and ordered the petitioner to execute any and all documents to effectuate the sale of the marital residence and the distribution of the proceeds from the sale, including placing the funds into escrow. The July 27, 2018 order also noted that trial on
all ancillary issues that remained pending had taken place and "[f]inal [j]udgment will be entered in the immediate future."
¶ 5 On August 17, 2018, the respondent filed his notice of appeal, pursuant to "Supreme Court Rule 308," stating that the trial court did not have "judicial authority" over the marital residence, which is the subject of the July 27, 2018 order, because it is controlled by the laws of Texas not the laws of Illinois. In his notice of appeal, the respondent also requested that this court consider the question of "whether a division of assets can be by 'Order' irrespective of how fatally flawed the 'Order' is by a circuit court when there has been no final resolution as to division of marital assets and debts and the issue of dissipation has yet to be addressed by the Court."
¶ 6 In his brief on appeal, the respondent presents no argument as to the propriety of the July 27, 2018 order specifically, but instead, argues that "an external fraud" was committed upon the court by the petitioner. He maintains that, as a result of this "external fraud," the trial court did not have personal jurisdiction over him or subject matter jurisdiction and consequently, the "entire [divorce] proceeding" is void. The petitioner has not filed an appellee's brief with this court. However, this court, on its own motion, ordered the case taken on the appellant's brief only. See In re Marriage of Tomlins & Glenn, 2013 IL App (3d) 120099, ¶ 18 (where the record is simple and the allegations of error can be easily decided without the aid of the appellee's brief, this court will consider the appeal) (citing First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976)).
¶ 7 Initially, we note that the respondent's brief fails to adhere to the supreme court rules governing appellate review. The brief does not contain a jurisdictional statement or statement of the facts without argument or comment as required by Rule 341(h). Ill. S. Ct. R. 341(h) (eff. May 25, 2018). The brief also does not contain an appendix with the order appealed from and an index
to the record as required by Rule 342. Ill. S. Ct. R. 342 (eff. Oct. 1, 2019). Although, our review is hindered by the insufficiency of the respondent's brief, meaningful review is not precluded as the merits of the case can be ascertained from the record on appeal. Twardowski v. Holiday Hospital Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001).
¶ 8 In this case, the respondent mischaracterizes this appeal as one from the July 27, 2018 interlocutory order of the trial court pursuant to Rule 308. First, we note that, this is not a proper appeal pursuant to Rule 308 as the trial court did not certify a question and the respondent did not file an application for leave to appeal in violation of Rule 308 (a) and (b) (eff. Oct. 1, 2019). Further, the respondent's brief contains no argument as to the propriety of the July 27, 2018 interlocutory order, but instead challenges the jurisdiction of the circuit court. Consequently, the respondent maintains that the "entire [divorce] proceeding" is void, which would include the July 27, 2018 order.
¶ 9 "Supreme Court Rule 303(b)(2) provides that a notice of appeal 'shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.' " General Motors Corp. v. Pappas, 242 Ill. 2d 163, 175-76 (2011); Ill. S. Ct. R. 303(b)(2) (eff. Sept. 1, 2006). A party's filing of the notice of appeal is the jurisdictional step initiating review. General Motors Corp., 242 Ill. 2d at 176. The appellate court lacks jurisdiction and must dismiss the appeal unless there is a properly filed notice of appeal. Id. "When an appeal is taken from a specified judgment only, or from a part of a specified judgment, the court of review acquires no jurisdiction to review other judgments or parts thereof not so specified or not fairly to be inferred from the notice as intended to be presented for review on the appeal." Burtell v. First Charter Serv. Corp., 76 Ill. 2d 427, 434 (1979) However, "the unspecified judgment is reviewable if it is a 'step in the procedural progression leading' to the judgment specified in the notice of appeal." Id. at 435.
¶ 10 In the present case, the respondent filed a timely pro se notice of appeal referencing only the July 27, 2018 interlocutory order of the trial court, which granted the petitioner's emergency petition to escrow funds from the sale of the marital property. However, the respondent's appellate brief requested that this court find that the "entire [divorce] proceeding" is void for lack of personal and subject matter jurisdiction.
¶ 11 Before addressing the merits, we note, that because the respondent failed to make any argument in his brief on appeal as to the propriety of the July 27, 2018 interlocutory order itself, he has forfeited this issue. See. Ill. S. Ct. R. 341 (h)(7) (eff. May 25, 2018) ("Points not argued are forfeited").
¶ 12 The only remaining issue is the respondent's argument that the entire divorce proceeding is void because the trial court did not have personal jurisdiction over him or subject matter jurisdiction. A void order "may be attacked at any time or in any court, either directly or collaterally." Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). Whether an order of the circuit court is void for lack of subject matter jurisdiction and personal jurisdiction is a question of law, we review de novo. See McCormick v. Robertson, 2015 IL 118230, ¶ 18; see also BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17.
¶ 13 We find that the circuit court had personal jurisdiction over the respondent because the record reflects that he was properly served with summons and with the petition for dissolution of marriage on July 8, 2014. In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367 (2001). We further find that the circuit court had subject matter jurisdiction over the proceedings as divorce proceedings are within the general jurisdiction of the circuit courts. In re Marriage of Yelton, 286 Ill. App. 3d 436, 442 (1997).
¶ 14 Having rejected the respondent's jurisdictional argument, we affirm the circuit court's
order of July 27, 2018.
¶ 15 Affirmed.