
NO. 4-96-0886

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



In Re:  the Marriage of				)	Appeal from

JOHN P. FIELDS,					)	Circuit Court of

Petitioner-Appellant,		)	Livingston County

and						)	No. 94D130

DORIS E. FIELDS,	 				)

Respondent-Appellee.		)	Honorable

)	Harold J. Frobish,

)	Judge Presiding.

_________________________________________________________________





JUSTICE KNECHT delivered the opinion of the court:



In July 1994, petitioner John Fields filed a peti­tion for dissolution of his marriage to respon­dent Doris Fields.  In May 1995, the trial court granted the dissolution and entered the final judg­ment on remaining issues on August 5, 1996.  John ap­peals, arguing (1) the dissolution and supplementary orders of the trial court are void because no written stipulation waiving the two-year waiting period (750 ILCS 5/401(a)(2) (West Supp. 1995)) was filed and (2) the trial court abused its discre­tion in ordering him to pay $1,200 per month in maintenance.  We af­firm.

The parties were married in 1973.  Two children were born during the marriage, Carmen in 1974 and Aaron in 1976.  At the time of the July 1996 hearing on all ancil­lary mat­ters, Doris was 45 years old and John was 48.  Both parties were in good health.  

The hearing on grounds for dissolution was held in May 1995.  The testimony at the hearing indicated the parties had lived apart for approximately 11 months.  The trial court, after finding irreconcilable differ­ences existed between the parties, dissolved the marriage, stating "the parties have lived separate and apart for a period of time in excess of six months."

On appeal, John now argues, for the first time, this court should strike down the dissolution and supplementary orders of the trial court as being void, since no written stipulation waiving the two-year waiting period was ever filed pursuant to the Illinois Marriage and Dissolution of Marriage Act (Act).  See 750 ILCS 5/401(a)(2) (West Supp. 1995) ("If the spouses have lived separate and apart for a continuous period of not less than 6 months ***, the require­ment of living separate and apart for a continuous period in excess of 2 years 
may be waived upon written stipula­tion of both spouses filed with the court
" (emphasis added)).  Relying on 
In re Mar­riage of Robinson
, 225 Ill. App. 3d 1037, 588 N.E.2d 1243 (1992), John argues the written waiver of section 401(a)(2) of the Act is a statutory condition precedent to the trial court's obtaining of subject-matter jurisdiction in cases brought under the Act.

In 
Robinson
, the husband sought dissolution of his marriage, and the wife appealed the granting of dissolution.  Although she did not object to the husband's oral waiver of the two-year waiting period at trial, she argued on appeal the trial court was without juris­dic­tion to enter the dissolution order due to the lack of a written waiver.  Agreeing with the wife, the 
Robinson
 court held:

"Where a trial court is hearing matters re­lating to the dissolu­tion of a marriage, it is not acting within the unlimited juris­dic­tion conferred on it by the constitution but, rather, is limited to that granted in the [Act].  [Ci­tation.]  In addi­tion, case law clearly states that the [Act] is to be strict­ly construed.  [Ci­tation.]

*** [W]e find that the legislature in­tend­ed that a written waiver be filed before the court could obtain jurisdiction over the matter.  Accordingly, since a written waiver was not filed with the court, we find that the court was without subject[-]matter ju­ris­diction to enter an order of dissolu­tion."	

Robinson
, 225 Ill. App. 3d at 1038, 588 N.E.2d at 1244.  

However, both the first and fifth districts have refused to follow the third district's decision in 
Robinson
.  See 
In re Marriage of Yelton
, 286 Ill. App. 3d 436, 442, 676 N.E.2d 993, 997 (1997) (refusing to find trial court lacked subject-matter jurisdiction due to allegedly insufficient evi­dence satisfying two-year waiting period, noting the reason­ing of 
Robin­son
 "has been soundly reject­ed"); 
In re Mar­riage of Monken
, 255 Ill. App. 3d 1044, 1046, 627 N.E.2d 759, 760 (1994) (failure to file written stipu­lation waiving two-year waiting period does not render subsequent dissolu­tion order void for want of subject-matter jurisdic­tion, refus­ing to follow 
Robin­son
); 
In re Mar­riage of Jerome
, 255 Ill. App. 3d 374, 388, 625 N.E.2d 1195, 1206 (1994) (failure to bifurcate dissolu­tion proceedings and hear issue of grounds first does not deprive court of subject-matter jurisdic­tion, refus­ing to follow 
Robin­son
).  We agree with the 
Yelton
, 
Monken
, and 
Jerome
 courts and refuse to follow 
Robinson
.

A judgment or order is void if the court that entered it lacked jurisdiction over the parties or the subject matter or if the court lacked the inherent power to make or enter the order involved.  
In re Estate of Steinfeld
, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994); 
People ex rel. Gibbs v. Ketchum
, 284 Ill. App. 3d 70, 76, 671 N.E.2d 1149, 1152 (1996).  Subject-matter jurisdiction "does not mean simply jurisdiction of the particular case before the court but jurisdiction of the class of cases to which the particular case before the court belongs."  
Jerome
, 255 Ill. App. 3d at 388, 625 N.E.2d at 1206.  While under earlier versions of our constitution subject-matter jurisdiction was conferred by the legislature through statutory enactments (see   

In re Estate of Mears
, 110 Ill. App. 3d 1133, 1137, 443 N.E.2d 289, 293 (1982) (tracing the evolution of subject-matter juris­diction and noting "a full progression has been made from the purely legisla­tive concept of jurisdiction embodied in the 1818 Consti­tution to the plenary concept now in force under the 1970 Consti­tution")), circuit court juris­dic­tion is exclusively consti­tutional in origin, except in the limited area of admin­istra­tive review (
In re Lawrence M.
, 172 Ill. 2d 523, 529, 670 N.E.2d 710, 714 (1996); 
In re M.M.
, 156 Ill. 2d 53, 65, 619 N.E.2d 702, 709 (1993)).  

Yet the legislature still retains some control over the subject-matter jurisdiction of the circuit courts, albeit some­what indi­rect­ly.  Under the Illinois constitution, circuit courts have origi­nal jurisdic­tion in all "justiciable" matters, subject to limited exceptions not relevant here.  See Ill. Const. 1970, art. VI, §9; 
In re Marriage of Bussey
, 108 Ill. 2d 286, 294, 483 N.E.2d 1229, 1233 (1985); 
In re Custody of Sexton
, 84 Ill. 2d 312, 319-20, 418 N.E.2d 729, 733 (1981).  Though the legislature has no power to limit a court's constitutional jurisdiction to hear a matter, it may, by way of statu­to­ry enact­ment, create a "justi­ciable mat­ter."  
M.M.
, 156 Ill. 2d at 65, 619 N.E.2d at 710; 
Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teach­ers, Local 504
, 128 Ill. 2d 155, 165, 538 N.E.2d 524, 529 (1989).  Where the legisla­ture creates rights or duties having no counter­part in common law or equity, a justicia­ble matter is created.  
M.M.
, 156 Ill. 2d at 65, 619 N.E.2d at 710; 
Board of Education of Warren Township High School District 121
, 128 Ill. 2d at 165, 538 N.E.2d at 529; 
Skilling v. Skilling
, 104 Ill. App. 3d 213, 219, 432 N.E.2d 881, 886 (1982).  Once a justiciable matter is creat­ed, the circuit courts obtain subject-matter jurisdiction over such matters by way of the constitution.  
M.M.
, 156 Ill. 2d at 65, 619 N.E.2d at 710.  
However, since the justicia­ble matter is statuto­ry in ori­gin, the legis­la­ture may impose nonwaivable conditions prece­dent to the courts' exercise of jurisdiction.  
M.M.
, 156 Ill. 2d at 65-66, 619 N.E.2d at 710; 
Mears
, 110 Ill. App. 3d at 1138, 443 N.E.2d at 293 (stating "the inquiry must be whether there exists a justi­ciable controversy, and if so, are there any statutory conditions precedent to judicial interven­tion").  
As this court has ex­plained, while the failure to comply with such conditions may result in what may be erroneously termed a "lack of jurisdic­tion," in reality the court suffers from "an inability to exer­cise juris­diction because the court cannot waive the condition."  
Mears
, 110 Ill. App. 3d at 1138, 443 N.E.2d at 293.  See also 
People ex rel. Brzica v. Village of Lake Barrington
, 268 Ill. App. 3d 420, 422, 644 N.E.2d 66, 68 (1994) ("In such a case, the legislature is not limiting or precluding the court's juris­dic­tion, but is merely defining the justiciable matter it has created so that certain facts must exist before a court can act in a particular case [citation], or grant the relief requested [citation]"); 
Skilling
, 104 Ill. App. 3d at 219, 432 N.E.2d at 886.  

Dissolution of marriage and collateral matters are entirely statutory in origin and nature.  
In re Marriage of Henry
, 156 Ill. 2d 541, 544, 622 N.E.2d 803, 805 (1993); 
In re Marriage of Snyder
, 269 Ill. App. 3d 848, 849, 646 N.E.2d 1263, 1264 (1995).  When a court's power to act is set by statute, the court is governed by the rules of limited jurisdiction and must proceed within the strictures of the statute.  
M.M.
, 156 Ill. 2d at 66, 619 N.E.2d at 710.  John contends (and the 
Robinson
 court found) the two-year waiting period (or the written waiver there­of) of section 401(a)(2) of the Act is a statu­tory condition precedent to the trial court's subject-matter jurisdic­tion in this case.  See 
Robinson
, 225 Ill. App. 3d at 1038, 588 N.E.2d at 1244.  We disagree.

True conditions precedent to a trial court's exercise of subject-matter jurisdiction are rare.  Only where it is exceed­ing­ly clear the legis­la­ture intend­ed a particu­lar require­ment to serve as a limitation on the authori­ty of the court to act should a condi­tion precedent to jurisdic­tion be found.  
In re Marriage of Liss
, 268 Ill. App. 3d 919, 922, 645 N.E.2d 341, 344 (1994); 
In re Marriage of Florence
, 260 Ill. App. 3d 116, 121, 632 N.E.2d 681, 685 (1994); 
In re Marriage of Vernon
, 253 Ill. App. 3d 783, 788, 625 N.E.2d 823, 827 (1993).  For example, where the legis­la­ture creates a substantive right unknown at common law and makes time an inherent element of the right, such a time re­straint is a condition of liability and condition precedent to a trial court's exercise of jurisdiction.  
Pasquale v. Speed Products Engineer­ing
, 166 Ill. 2d 337, 366-67, 654 N.E.2d 1365, 1381 (1995).  In dissolution of marriage matters, the 90-day residence requirement of section 401(a) of the Act is a statutory condition precedent to jurisdiction.  
Vernon
, 253 Ill. App. 3d at 788, 625 N.E.2d at 827.  See, 
e.g.
, 
Arrington v. Industrial Comm'n
, 96 Ill. 2d 505, 508-09, 451 N.E.2d 866, 867 (1983) (when the circuit court hears cases on 
certiorari
 to the Indus­tri­al Commission, exhibition to the clerk of the circuit court of a receipt showing payment of the amount of the probable cost of the record is statutory condition precedent to jurisdic­tion); 
Brzica
, 268 Ill. App. 3d at 423, 644 N.E.2d at 69 (statu­tory conditions precedent to juris­diction in munici­pal annexation cases); 
In re Estate of Sutera
, 199 Ill. App. 3d 531, 537, 557 N.E.2d 371, 375 (1990) (noting "[w]hile the legislature could still impose substantive conditions prece­dent to the exercise of jurisdiction after 1964, the only condi­tion precedent to the exercise of jurisdiction in the case of will contests is that the petition be filed within the time limited by the statute after the admission of the will to pro­bate").  

Illinois courts have repeatedly refused to find 
any
 failure by a trial court, when proceeding under limited statutory juris­dic­tion, to comply with a statutory condition results in a void order or judgment.  See, 
e.g.
, 
Steinfeld
, 158 Ill. 2d at 15, 630 N.E.2d at 808 (1994) (holding failure to comply strict­ly with the statutory procedures of the Mental Health and Devel­opmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91½, par. 1-100 
et
 
seq
.) is proce­dur­al, not juris­dic­tion­al, error "despite the sub­stan­tial liberty interests at stake in such a proceeding"); 
In re W.D.
, 194 Ill. App. 3d 686, 691, 551 N.E.2d 357, 361 (1990) (holding the manda­tory timely service requirement of section 4-3 of the Juvenile Court Act of 1965 (Ill. Rev. Stat., 1987 Supp., ch. 37, par. 704-3(1) (now 705 ILCS 405/2-15 (West 1994))) is not a limita­tion on sub­ject-matter jurisdic­tion); 
Phelps v. Human Rights Comm'n
, 185 Ill. App. 3d 96, 98, 540 N.E.2d 1147, 1149 (1989) (finding a charge filed with the Depart­ment of Human Rights within the statutory 180-day period need not be verified prior to the expiration of the 180-day period in order for the Human Rights Commis­sion to later acquire juris­diction of a complaint concern­ing the same alleged viola­tion).  Nor does the manda­to­ry nature of the statu­to­ry re­quire­ment necessari­ly render the requirement juris­diction­al in the sense it cannot be waived.  
Sexton
, 84 Ill. 2d at 319, 418 N.E.2d at 732; 
DeCastris v. State Employees Retirement System
, No. 4-96-0632, slip op. at 12 (May 2, 1997), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___ (join­der requirement of section 3-107(a) of Administrative Review Law (735 ILCS 5/3-107(a) (West Supp. 1995)), although mandatory, is not jurisdictional and may be waived).  Such fail­ures are better charac­ter­ized as proce­dur­al defi­cien­cies, which do not divest the trial court of subject-matter jurisdic­tion.

It has been held the failure to file affidavits pursu­ant to section 610(a) of the Act (750 ILCS 5/610(a) (West 1994)) does not render a sub­sequent judgment void for lack of subject-matter jurisdic­tion (
Sexton
, 84 Ill. 2d at 320-21, 418 N.E.2d at 733);  the failure to file notice in another state of a petition to change custody pursuant to section 511(c) of the Act (750 ILCS 5/511(c) (West 1994)) is procedur­al, not jurisdictional (
Bussey
, 108 Ill. 2d at 294-95, 483 N.E.2d at 1233); the filing of a fee peti­tion for attor­ney fees pursu­ant to section 508 of the Act (750 ILCS 5/508 (West 1994)) "goes to proce­dure and not sub­ject[-]matter jurisdic­tion" (
In re Marriage of Pagano
, 181 Ill. App. 3d 547, 554, 537 N.E.2d 398, 402 (1989)); and a trial court's order of child support as a percent­age of income rather than a dollar amount, contrary to the dictates of section 505(a)(5) of the Act (750 ILCS 5/505(a)(5) (West Supp. 1995)), does not render the order void for lack of jurisdiction.  See 
In re Marriage of Scott
, 286 Ill. App. 3d 1056, 1059, 678 N.E.2d 1, 3 (1996); 
In re Marriage of Baggett
, 281 Ill. App. 3d 34, 38, 666 N.E.2d 850, 853 (1996); 
Liss
, 268 Ill. App. 3d at 922-23, 645 N.E.2d at 344; 
Florence
, 260 Ill. App. 3d at 121, 632 N.E.2d at 685; but see 
In re Marriage of Sheetz
, 254 Ill. App. 3d 695, 700, 627 N.E.2d 154, 158-59 (1993).

We find no evidence the legislature intended the written stipulation requirement of section 401(a)(2) of the Act to be a limitation on the subject-matter jurisdiction of the trial court.  There is little to distinguish this requirement from the affidavit requirement of section 610(a), which the supreme court in 
Sexton
 found to be merely a proce­dur­al re­quire­ment.  See 
Sexton
, 84 Ill. 2d at 320-21, 418 N.E.2d at 733.  Just as failure to comply with the affidavit require­ment in 
Sexton
 did not render the subsequent order void for lack of jurisdic­tion, the parties' failure to file a written waiver of the statutory waiting period of section 401(a)(2) did not affect the trial court's jurisdiction over the dissolution proceed­ings here.  

We note this holding is consistent with the modern trend toward giving finality of judgments greater weight than validity of judgments (see 
Monken
, 255 Ill. App. 3d at 1047, 627 N.E.2d at 760; Restatement (Second) of Judgments §12, Comment 
a
, at 117 (1982)), a concern this court clearly ex­pressed in 
Vernon
.
  See 
Vernon
, 253 Ill. App. 3d at 788, 625 N.E.2d at 827.  Such a concern is especially acute where, as here, the com­plain­ing party has partici­pated in a suit to completion without objection to juris­diction.  See 
In re Marriage of Noble
, 192 Ill. App. 3d 501, 508, 548 N.E.2d 518, 522 (1989) ("Where the parties have had an opportunity to present evidence concerning the child's best interest, it would be senseless to exalt form over substance and remand for failure to file a proper pleading or affida­vit" pursuant to section 610(a) of the Act); Restatement (Second) of Judgments §12, Comment 
d
, at 120 (1982) ("Even if the issue of subject[-]matter jurisdiction has not been raised and deter­mined, the judgment after becoming final should ordinarily be treated as wholly valid if the controversy has been litigated in any other respect" pursuant to the doctrine of claim preclu­sion).

It is diffi­cult to compre­hend how John can reason­ably object to subject-matter jurisdic­tion at this junc­ture.  He petitioned for dissolu­tion.  He alleged in his petition the parties had been living "separate and apart for a continuous period of not less than six months, 
since
 
1987
."  (Emphasis added.)  He partic­i­pat­ed without objec­tion at the dissolution hearing in which testimo­ny indicated the parties had lived apart for approx­imately 11 months.  Most significantly, he 
drafted
 
the
 
disso­lu­tion
 
order
, pursuant to the trial court's request, which clearly stated "the parties have lived separate and apart for a period of time in excess of six months."  See 
In re Marriage of Stevens
, 183 Ill. App. 3d 160, 162, 538 N.E.2d 1279, 1281 (1989) (refusing to find court's order void where complaining party initiated custody modifi­ca­tion pro­ceed­ing and sat through al­legedly improper proceeding without objec­tion to court's juris­diction).  Consid­er­ations of judi­cial economy and simple justice require finding John waived any objection to the written waiver require­ment of section 401(a)(2) of the Act.  See 
Sexton
, 84 Ill. 2d at 322, 418 N.E.2d at 734.

We next consider John's claim the trial court abused its discretion in ordering him to pay $1,200 per month in mainte­nance.  John does not argue maintenance was unwarranted; rath­er, he argues the amount of the award was excessive.  In its supple­men­tal judg­ment order of August 6, 1996, the trial court made the following findings.  The parties had been married for 22 years.  Doris has a high school education and is employed full-time as a certified nurses' aide at a retire­ment center.  Her net monthly income from this employment is approxi­mately $780.  She lives on real estate owned by her mother and pays no rent.  Her monthly expenses were approximately $1,500.  John has worked for the Metra Railroad for the past 23 years and earns $56,000 per year, which yields a net income of approximate­ly $3,400 per month.  The court found John's monthly expenses to be equal to those of Doris, approximately $1,500 per month.  It is at this point John claims the trial court erred.  He argues the trial court under­stated his monthly expenses and thereby overestimated his ability to pay.  See 750 ILCS 5/504(a)(1), (a)(2) (West 1994) (in deter­min­ing amount of maintenance, trial court must consider both "the income and property of each party" and "the needs of each par­ty").  

On appeal, John contends his monthly expenses were closer to $2,500.  He bases this figure on his testimony he is currently paying $1,050 per month to reduce old debts.  However, the record indicates the minimum monthly payments on these debts total nowhere near the $1,050 allegedly being paid monthly by John.  John's financial affidavit lists minimum monthly debt payments totalling $440 per month, and John testified he was paying an additional $100 per month on back taxes he owed.  Adding $540 to John's claimed monthly living expenses of $1,350 still leaves him over $300 in excess monthly funds.  While John may very well wish to pay off his debts rapidly, he cannot do so at Doris' expense.

John contends the $1,200-per-month maintenance award was exces­sive in light of Doris' income-expense disparity of only $700.  However, although it is difficult from the trial court's order to determine the exact apportionment of marital assets and debts, the court may have felt Doris deserved higher maintenance in light of the property division.  John does not argue he received a smaller portion of the parties' marital property, and the record shows John's "Tier One" railroad retirement benefits, which the trial court recognized it could not divide, totalled close to $70,000.  Moreover, simply because a trial court's award of maintenance results in one spouse having a surplus of income does not automatically mean the court abused its discre­tion.  When the Act refers to the "needs" of the spouse seeking mainte­nance (see 750 ILCS 5/504(a)(2) (West 1994)), it does not neces­sarily mean minimum needs.  
In re Marriage of Gunn
, 233 Ill. App. 3d 165, 175, 598 N.E.2d 1013, 1020 (1992) (uphold­ing mainte­nance award that resulted in $800 monthly surplus for wife).  Fur­ther, a spouse who lived frugal­ly during a mar­riage is not required to live frugally following dissolu­tion where the other spouse's superi­or earning power justifies addi­tional maintenance and a resulting surplus of income.  See 
In re Marriage of O'Brien
, 235 Ill. App. 3d 520, 524, 601 N.E.2d 1227, 1230 (1992) (holding past frugal lifestyle did not mean spouse failed to "prove" her reasonable post-disso­lution needs, finding husband's implicit suggestion "the reward for frugality is poverty" to be "outra­geous").  The trial court here ordered mainte­nance until Decem­ber 31, 1998, after which it would be reviewable at the request of either party.  We cannot say the court abused its discretion.

This court's decision in 
In re Marriage of Wisniewski
, 107 Ill. App. 3d 711, 437 N.E.2d 1300 (1982), is distinguishable from the present case.  In 
Wisniewski
, this court found the trial court had abused its discretion in ordering the ex-husband to pay $600 per month in maintenance, where the ex-wife's income-expense disparity was $200 per month.  However, there was evidence the ex-wife was acquiring skills that would soon allow her to cover her living expenses with her salary.  
Wisniewski
, 107 Ill. App. 3d at 718-19, 437 N.E.2d at 1306.  In addition, the 
Wisniewski
 court had already determined the case was to be remanded for valuation and division of the ex-husband's pension, which added to the need to reassess the amount of maintenance.  
Wisniewski
, 107 Ill. App. 3d at 719, 437 N.E.2d at 1306.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

McCULLOUGH and GARMAN, JJ., concur.

