Dead Beat Dad Enters a General Appearance

Mom gets a default judgment for dissolution of marriage in a country in Europe in l983. She and Dad have four young children. Mom never sees a dime from dad, who lives in the United States. Mom and dad have a piece of property in Europe, which the Swiss court executes on in l986, in order to have dad’s one half share allocated to his child support arrearage. The European country’s magistrate mails a letter to dad in the U.S., advising him that they will execute on the property, unless he can convince them that they shouldn’t. Dad writes a letter back to the magistrate, including all of his defenses, among them that the property is located in a county other than the county that the divorce took place in. The magistrate writes back to dad, advising him that his defenses did not help him at all, and that the court was giving his one half share to mom. As of the date of the property sale, dad was caught up in his child support arrearage.

Mom decides later to file a petition in the U.S. against dad for all of the money that was due her as of l996. Dad asserts that he was never served in the first place with notice of the default hearing in l983. He produces his alleged proof that he had moved from the address where he had supposedly been served.

ISSUE NUMBER ONE: Is the U.S. court bound to accept the findings of the European country’s court that dad was served before judgment was entered?

Evans v. Advance Schools, Inc., 70 Ill.App.3d 947, 388 N.E.2d 1004 (1979) holds:

“Where a judgment has been rendered by a court of general jurisdiction, there is a strong legal presumption that the court had jurisdiction to render the judgment and that its proceedings conformed to the law of the state in which it was rendered.”

As a general rule, each court has the power to determine its own jurisdiction over the subject matter and the persons before it, and the court’s determination as to its own jurisdiction is not generally open to collateral attack. Roth v. Northern Assurance Co., Ltd., 32 Ill.2d 40, 45, 203 N.E. 2d 415 (l964). Where the foreign court has already considered and rejected the claim that it lacked personal jurisdiction over the defendant, the court’s determination is usually res judicata as to that issue and is no longer open to collateral attack. Hays v. Louisiana Dock Co., 117 Ill.App.3d 512, 518, 452 N.E.2d 1383 (l983). Morey Fish Co. v. Rymer Foods, Inc., 240 Ill.App.3d 61, 608 N.E.2d 74 (1st Dist., 1993); Brownlee v. Western Chain Company, 49 Ill.App.3d 247, 364 N.E.2d 926 (1st Dist., l977)-Dad was afforded the opportunity to litigate the notice and due process issue in Mississippi, and therefore, the doctrine of res judicata bars Dad from attacking collaterally the Mississippi judgment in Illinois.

Where a court rendering judgment determined that it has jurisdiction of the person, the mere failure of the record to show facts sufficient to support a finding of jurisdiction will not invalidate the judgment, since the presumption is that the court heard other evidence not necessary to be preserved in the record, or that it acquired jurisdiction in some other manner than that stated. Bannon v. The People of the State of Illinois, 1877 WL 9932 (Ill.App. 2d Dist., 1877).

ISSUE NUMBER 2: Whether an appearance subsequent to judgment is a submission to the court’s jurisdiction for validation of a prior judgment?
Aside from the issue of initial service of process on Dad, he entered a general appearance in the European. Also, Dad has acted in reliance on the judgment that he now considers void. A deduction for his then-owed child support was made from Dad’s share of the parties’ apartment which had been sold in l986. See, In re Marriage of Sheetz, 254 Ill.App.3d 695, 627 N.E.2d 154 (1st Dist., 1993). The European court had earlier issued its notification of the sale of the property in 1986 to Dad, by certified mail. Dad did not object to the apartment sale, nor to the application of his share of the apartment to his child support arrearages from the European l983 judgment that he now questions. He did not even question whether there were any monies due to him after arrearages from l983 through date of sale of the apartment.

    In Powers v. Powers, 46 Ill.App.2d 57, 196 N.E.2d 731 (1964), a first district case, there is no distinction drawn between an appearance made prior to and subsequent to judgment. The case stands for the proposition that any appearance not strictly limited to contest jurisdiction and in any way appearing to the merits constitutes a general appearance for all purposes. That court was aware that the first district of Illinois has held in Community Bank & Trust Co. v. Pavlich, 84 Ill.App.3d 1080, 406 N.E.2d 164 (l980), that a Dad waived his jurisdictional argument, which attacked an order confirming a judgment by confession, and submitted himself to the jurisdiction of the court by not limiting his post-judgment appearance before the court to the narrow issue of service of process. In that case, the Dad requested and obtained two continuances of the citation proceedings and filed a motion to vacate the order confirming the judgment of confession alleging lack of personal jurisdiction but going on to raise a meritorious defense and due diligence. The court found these actions subsequent to judgment went beyond a special appearance and constituted a general appearance.

In the case of Marriage of Buchanio, 262 Ill.App.3d 910, 635 N.E.2d 980 (1st District, 1994), the father had filed his objections to personal jurisdiction after a judgment had been entered against him. He did, however, argue his objections to subject matter jurisdiction also. That court held,

“It is well-settled that ‘any action taken by the litigant which recognizes the case as in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction’ over his or her person.” In re Estate of Zoglauer, 229 Ill.App.3d 394, 397, 593 N.E.2d 93, 95 (l992); In re Marriage of Stafeil, 169 Ill.App.3d 630, 633-34, 523 N.E.2d 1003, 1005 (l988); Weierman v. Wood Landscaping, Inc., 259 Ill.App.3d 300630 N.E.2d 1298 (3rd Dist., 1994) in which Dad filed its first pleading to attack the court’s subject matter jurisdiction).

An accompanying or second, motion to dismiss (on other grounds) is a general appearance and a submission to the court’s jurisdiction, and waives the challenge to in personam jurisdiction. IRMO Villarosa, 237 Ill.App.3d 983, 605 N.E.2d 586 (4th Dist., 1992); Ahart v. Young, 194 Ill.App.3d 461, 551 N.E.2d 685 (1990); ETA Trust v. Recht, 214 Ill.App.3d 827, 831, 574 N.E.2d 4, 7 (1991).

A document is considered filed when it is deposited with and passes into the exclusive control and custody of the court clerk, who understandingly receives same in order that it may become part of the permanent records of his office. IRMO Linn, 260 Ill.App.3d 698, 632 N.E.2d 1109 (2nd Dist., l994). The Dad filed his general appearance when he forwarded his response to the European magistrate, in relation to the notice from the magistrate. The magistrate in response to dad’s documents mailed dad the court’s final decision that dad was liable.

In the case of Marriage of Lenhardt, 176 Ill.Ap.3d 429, 531 N.E.2d 123 (5th District, 1988), there was a simultaneous domestic violence and a modification of custody hearing. The court found that the filing of pleadings by the husband in relation to the petition to modify custody constituted a general entry of appearance in the domestic violence proceeding where the trial court found that documents filed in the modification proceeding applied to the domestic violence proceeding. Id.

Where the Dad is found to have voluntarily submitted himself to the court’s jurisdiction prior to judgment, the court has personal jurisdiction at the time it enters the judgment order, and the same logic serves to submit a Dad to the court’s jurisdiction as of the date he appeared, not retroactively as of the date of the ex-parte judgment, where his appearance comes after judgment is entered. (City of Chicago v. Bah, supra), and appearance subsequent to judgment may be construed as submission to the court’s jurisdiction for retroactive validation of a prior judgment where the Dad acts to accept the benefits of the judgment. (Rock Island Bank & Trust Co. v. Stauduhar, 59 Ill.App.3d 892, 902, 375 N.E.2d 1383 (1978); Lord v. Hubert, 12 Ill.App.2d 83, 86, 145 N.E.2d 77 (1957); IRMO Verdung, 162 Ill.App.3d 374, 515 N.E.2d 454 (2nd Dist., 1987); IRMO Paulius, 131 Ill.App.3d 343, 475 N.E.2d 1006 (1st Dis., l985).

In Rock Island, an individual (wife of one of the signers of the note in question) signed a written guarantee which guaranteed the payment of the loan evidenced by the renewal note. When the bank took judgment on the note, the husband and wife were both named in the judgment. Her later voluntary appearance in proceedings which released her husband from liability on the note did constitute a general appearance. Id.

In Bradshaw v. Pellican, 152 Ill.App.3d 253, 256, 504 N.E.2d 211 (l987), after the trial court had entered an order for support against the Dad, a later trial court order recited the agreement of the parties that a child support deficiency existed and created an installment plan for making up the deficiency. The court stated that,

“This clearly recognized the validity of the prior proceedings and invoked the court’s jurisdiction to alleviate the harshness of a contempt citation.” Therefore, the Dad’s special and limited appearance was converted by the court to a general appearance. Id.

In IRMO Stafeil, 169 Ill.App.3d 630, 523 N.E.2d 1003 (1st Dist., 1988), Husband filed a special and limited appearance, challenged the jurisdiction of the court over the subject matter and the jurisdiction of the court to enter personal judgment against him, and moved to vacate the default order against him. The Court ruled that he waived his special appearance by filing a motion to vacate and an objection to the notice of deposition for him, and the Court stated:

The rule has been for many years that a special appearance is waived when a party takes affirmative action dealing with substantive issues. A party cannot, by his voluntary action, request a court to exercise its jurisdiction and, at the same time, deny that said jurisdiction exists. Therefore, a party challenging jurisdiction of the court must limit his appearance solely to that purpose and where the party raises additional defenses, he has entered a general appearance. Id.

    Dad cannot now deny that the judgment against him is conclusive. The important basis of res judicata is that the party against whom the doctrine is raised has litigated or had an opportunity to litigate the same matter in a former action. Drabik v. Lawn Manor Savings and Loan Association, 65 Ill.App.3d 272, 382 N.E.2d 333 (1st Dist., l978). The doctrine of res judicata or collateral estoppel is based on the principle that a cause of action, once adjudicated by a court of competent jurisdiction, should be deemed settled between the parties and their privies, except in a direct proceeding to review or set aside such adjudication. Id. The doctrines of res judicata and estoppel apply, not only as to the matters litigated in the former action, but as to all matters which might have been litigated and decided in that action. The latter issues are deemed to have been waived. (People v. Lynch, 32 Ill.App.3d 350, 336 N.E.2d 626 (1975)); Pedigo v. Johnson, 130 Ill.App.3d 392, 474 N.E.2d 430 (4th Dist., l985)-Plaintiff argues that res judicata is not applied to a judgment which he claims is void for failure to comply with the notice provision. However, he had already attacked the decision in an earlier court hearing. Drabik v. Lawn Manor Savings and Loan Assoc., 65 Ill.App.3d 272, 382 N.W.2d 333 (First Dist., l978); Builder’s Plumbing Supply Co. v. Zambetta, 143 Ill.App.3d 188, 492 N.E.2d 977 (2nd Dist., l986).

In IRMO Yakubec, 154 Ill.App.3d 540, 507 N.E.2d 117 (1st Dist., 1987), the Father alleged in his post-decree defense that he was not the father of the minor child, in response to the mother’s Petition for Rule to Show Cause, and he alleged fraud on the mother’s part in her leading him to believe that he was the father of the child. The court found that the question of parentage had been adjudicated and relied upon in determining the rights of the parties at the time the divorce decree had been entered. It denied father’s Motion to Strike the Rule against him, and the court stated:

The doctrine of res judicata provides that a cause of action finally determined by a court of competent jurisdiction cannot be litigated by new proceedings. The purpose of the doctrine is to prevent relitigation in a subsequent proceeding of questions settled by a court of competent jurisdiction in a prior suit between the same parties.

The Yakubec Court found that the question of the husband’s parentage of the minor child was adjudicated and relied upon in determining the rights of the parties at the time the divorce decree was entered. The husband’s further contention that the wife cannot enforce the divorce decree since is was not revived is without merit. Id.

Alleged formal defects and irregularities in process claimed or the service thereof must be taken advantage of at the first opportunity, and before any step in the cause is taken; otherwise they will be held to be waived. Ford v. Continental Illinois Nat. Bank & Trust Co., 18 Ill.App.3d 166, 309 N.E.2d 332 (1st Dist., 1974); Petition of Tax Properties Corp. for a Tax Sale Refund, 23 Ill.App.3d 142, 318 N.E.2d 650 (5th Dist., l974); Charles v. Gore,  248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist.); Ahart v. Young,  194 Ill.App.3d 461, 551 N.E. 2d 685 (5th Dist., 1990). Any appearance not shown as a special appearance must be taken as general. Id.

In the case of State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (l986), cited by Dad in our case, the Dad filed his special and limited appearance at his earliest and first opportunity. It would not have mattered if Dad had filed his argument to jurisdiction in the appellate court, as long as that was the Dad’s first opportunity to have done so. Our dad’s facts are quite different.

In Brownlee v. Western Chain Co., 49 Ill.App.3d 247, 364 N.E.2d 926 (1st Dist., 1977), an Illinois manufacturer could not collaterally attack a default judgment obtained in Mississippi on grounds of lack of notice and lack of jurisdiction, where manufacturer previously filed a special and limited appearance in Mississippi court to vacate the default judgment on the same grounds, the motion was denied, the Mississippi Supreme Court affirmed the trial court, and the manufacturer sought no further direct appeal.

Dad argues that the United States court does not have jurisdiction over him, because he alleges that he was not served with process in l983. He has waived any jurisdictional argument that he may have had, because he did not raise it in his first opportunity in l986 when he filed responses to execution on that l983 judgment, and he appeared generally before that Court.

Dad received dual benefit from the sale of the Israeli apartment in 1986: a) he avoided contempt proceedings against him in Europe and b) application of his share of the proceeds from this sale to his wife and children reduced his arrears without objection by him.

Should we trust dad to put his check in the mail now?

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