In re Marriage of Oettel , 2022 IL App (4th) 200404-U ( 2022 )

NOTICE
This Order was filed under
FILED
2022 IL App (4th) 200404-U April 4, 2022
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the NO. 4-20-0404 4th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re MARRIAGE OF ) Appeal from the
DAWN M. OETTEL, ) Circuit Court of
Petitioner-Appellee, ) Sangamon County
and ) No. 16D458
JOSEPH S. OETTEL, )
Respondent-Appellant. ) Honorable
) Jack D. Davis II,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶1 Held: The trial court’s order of June 6, 2019, was an enforcement order and not a
modification of the property division of a previously entered judgment of
dissolution of marriage, and the court’s order of July 22, 2020, was neither a
modification of that order nor of the prior judgment.
¶2 After several years of litigation, the parties were divorced in February 2018, and
as part of the judgment, the trial court entered an order establishing maintenance and dividing the
marital property of the parties between them. Postjudgment litigation then proceeded primarily
on those two issues. Petitioner, Dawn M. Oettel (Dawn), filed several petitions seeking
enforcement of the court’s orders, which resulted in subsequent orders entered by the trial court
on June 6, 2019, and July 22, 2020. Respondent, Joseph S. Oettel (Joe), argued the trial court’s
orders were modifications of the original property division and that the trial court lacked
jurisdiction so long after entry of the judgment. Dawn argued, and the trial court found, instead,
the orders were efforts to enforce the terms of the court’s previous judgment.
¶3 On appeal, Joe continues to claim the trial court lacked jurisdiction to enter the
July 22, 2020, order because it sought to modify the terms of the June 6, 2019, order, both of
which are improper attempts to modify the terms of a property division. We disagree.
¶4 I. BACKGROUND
¶5 The parties were married on July 23, 1994, and the marriage was dissolved by a
judgment of dissolution of marriage (Judgment) entered February 13, 2018. The property
division regarding the marital residence (Falcon Point) required the residence to remain listed for
sale and for both parties to cooperate with the realtor to market it. Respondent, who continued to
occupy the residence, was responsible for all mortgage payments, utilities, property taxes, and
“other reasonable expenses associated with his residence at the home.” Upon sale and
satisfaction of any indebtedness on the home, Joe was entitled to reimbursement for one-half the
cost of any repairs made, as well as any paydown on the principal, and the parties would split the
net proceeds evenly. A commercial property (Iles property), also subject to sale and division, is
not directly involved in the issues raised by this appeal. We take the time to outline the
procedural history of the litigation in some detail to elucidate the circumstances surrounding the
challenged orders in this appeal.
¶6 After the Judgment was entered, petitioner sought to obtain Joe’s compliance with
the terms of the Judgment as it related to the sale of the residence, leading ultimately to hearings
in February and April 2019 on a series of pleadings filed by Dawn seeking enforcement or
modification of the Judgment and findings of contempt against Joe. Written arguments of the
parties were submitted in May 2019, with Joe contending, among other things, Dawn’s
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suggestions for relief “[are] an attempt to redo the property division of the Judgment *** for
which the court lacks jurisdiction and the ability to do so.”
¶7 Those suggestions included Joe buying out her interest in the marital residence by
establishing her share of equity based on a reduced price of $505,000, a proposal Joe approved,
minus any credits to which Joe was entitled for repairs and payments in accordance with the
terms of the Judgment, or, if unable to obtain financing to do so, payment of her share upon sale
of the commercial property. Dawn also suggested reducing the price of the Falcon Point property
to an amount consistent with the realtor’s recommendations and selling the property “as is”
without the various repairs otherwise considered necessary before sale.
¶8 Dawn argued her suggested remedies were not an improper modification of the
property division but instead, consistent with the trial court’s retained jurisdiction to enforce its
own orders. She also argued both parties had “revested” jurisdiction in the trial court by
presenting evidence on the issue without objection by the other.
¶9 The trial court’s written order, filed in June 2019, found Joe was in indirect civil
contempt for failing to pay maintenance as ordered, granted his request for a downward
modification of maintenance, granted his request to address an Internal Revenue Service debt by
requiring the parties to amend their tax returns, and found Joe in indirect civil contempt for
failing to comply with the court’s previous order regarding the listing of the Iles property.
Addressing the Falcon Point residence, the trial court began by noting the terms of the previous
order and held, “[b]ased upon the evidence, the court finds Joe has failed to cooperate with the
recommendations of the realtor concerning lowering the sales price” and has “refused to
cooperate with the marketing of the marital residence.” The trial court declined to find Joe in
contempt in this regard, as requested by Dawn, because it also found “he did not have the
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resources necessary to address the repairs.” The trial court recognized Joe’s claim the court no
longer had jurisdiction to modify the division of property and that Dawn’s request amounted to
an impermissible modification of the Judgment’s property division but disagreed, finding it
retained jurisdiction to enforce the terms of the Judgment.
¶ 10 The trial court ordered Joe to buy out Dawn’s interest in the Falcon Point
residence, valued at the suggested price of $505,000, by securing financing within 45 days
sufficient to pay Dawn her equity share minus “any bona fide credits he may have under the
provisions of the Judgment.” Alternatively, if unable to obtain financing, Dawn was to receive
her share of the equity (minus credits due Joe) from the sale of the Iles property. No posttrial
motions were filed and no appeal taken from the court’s ruling of June 2019.
¶ 11 Dawn filed a supplemental petition for rule to show cause in early April 2020 and
a motion for entry of judgment later in the same month. In the supplemental petition she alleged,
among other things, that Joe failed to obtain the necessary financing to purchase her interest in
the Falcon Point residence or explain his inability to do so, and he failed to cooperate with the
realtor to show the residence to an interested party. Dawn claimed Joe was “attempting to delay
and prevent sale of the residence, thus preventing the Petitioner from receiving funds due her,”
and she asked the trial court to order Joe to reduce the sale price to the previously recommended
$505,000 to increase the likelihood of sale. The motion for judgment asked that judgment be
entered on the amounts owed by the trial court’s previously ordered buy-out, as well as amounts
owed in unpaid spousal support and attorney fees.
¶ 12 Joe responded to the motion for judgment by filing a combined motion to dismiss
pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 2-619.1 (West
2018)), arguing, inter alia, Dawn sought a modification of the previously ordered property
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settlement, for which the trial court lacked jurisdiction. Claiming that Dawn’s motion for entry of
judgment was insufficient as a matter of law, Joe also sought dismissal under section 2-615 of
the Code (735 ILCS 5/2-615 (West 2018)). The parties then traded responses and replies on the
issues through May 2020. After a hearing by telephone, in the trial court’s docket entry order of
May 22, 2020, the court found it retained jurisdiction to enforce its orders and intended to do so.
The parties were ordered to cooperate with the realtor to resolve the sale of the Falcon Point
property, and the issue regarding Dawn’s equity and Joe’s credits was reserved.
¶ 13 The trial court also reserved issues relating to maintenance and set the matter for
further hearing in June 2020. Before that, Dawn filed a second supplemental petition for rule to
show cause and motion for entry of judgment, claiming Joe continued to refuse to follow the
recommendations of the realtor, including recommendations on pricing, that his failure to do so
was causing Dawn additional legal expenses, and he should be held in contempt, assessed all
costs, and jailed as a result. Two days later, Joe filed a motion to reconsider, asking the trial court
to “reconsider” its May 22, 2020, ruling by allowing him to obtain opinions from other realtors
regarding the list price for an “as is” sale of the home as suggested by the realtor. After a phone
conference to discuss scheduling a hearing on the motion, Dawn then filed a third supplemental
petition for rule to show cause and motion for entry of judgment, contending Joe had contacted
another realtor and indicated the Falcon Point home was no longer on the market, that Dawn no
longer had equity in the home, and in fact, she owed him money; all of which she said was
violative of the court’s previous orders and warranted a finding of contempt.
¶ 14 The trial court’s written order, reflecting the results of the hearing on Joe’s
motions on July 22, 2020, specifically noted:
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“The parties had discussions with the Court, commenting on the
impact of the June 6, 2019[,] Order, and the Court confirms that
Order required that Joe buy out Dawn’s equity in the Falcon Point
residence at $505,000.00, less bona fide credits due Joe up to June
6, 2019. The discussions which occurred in open court were not,
and shall not be, considered a change or modification of the June 6,
2019[,] ruling by the court.”
¶ 15 The trial court went on to order the Falcon Point residence remain for sale, with
Joe to choose the realtor and listing price as part of its ruling granting Joe’s motion for
reconsideration. He was to cooperate with the realtor’s recommendations, and it was understood
that Dawn’s signature, if required on the listing agreement, did not prejudice her buy-out at
$505,000.
¶ 16 Joe filed a notice of appeal from the July 22, 2020, order on August 20, 2020,
contending the order “effectively modifies the property division of the Judgment *** without
jurisdiction, and by the Court’s interpretation of its June 6, 2019[,] Order, renders the June 6,
2019[,] Order voidable for lack of jurisdiction.”
¶ 17 II. ANALYSIS
¶ 18 On appeal, Joe asserts the trial court lacked jurisdiction to enter the July 22, 2020,
order since it constituted an impermissible modification of the original property division
contained within the Judgment entered February 13, 2018. Further, he contended throughout the
proceedings the June 6, 2019, order was also entered without jurisdiction since it too sought to
modify the terms of the property division. Dawn maintains the position she took before the trial
court, i.e., that the two previous orders entered June 6, 2019, and July 22, 2020, were both the
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proper exercise of the trial court’s authority to enforce the terms of its own lawful orders.
Further, Dawn contends this appeal should be dismissed as untimely.
¶ 19 A. Jurisdiction
¶ 20 “[T]he ascertainment of its own jurisdiction is one of the two most important
tasks of an appellate court panel when beginning the review of a case.” People v. Smith, 228 Ill.
2d 95, 106, 885 N.E.2d 1053, 1059 (2008). “A timely filed notice of appeal is the only
jurisdictional step required to confer jurisdiction upon the appellate court.” People v. Abdullah,
2019 IL 123492, ¶ 21, 160 N.E.3d 833. The trial court’s order was entered on July 22, 2020, and
Joe’s notice of appeal was filed on August 20, 2020, asking that the July 22, 2020, order be
declared void for lack of jurisdiction. Under Illinois Supreme Court Rule 303(a)(1) (eff. Jul. 1,
2017), this was a timely filed notice of appeal. Dawn’s request for dismissal of the appeal,
claiming it to be untimely, confuses untimeliness with simply a losing argument for appellant
regarding the trial court’s jurisdiction to enter the July 22, 2020, order.
¶ 21 Since Joe questions the trial court’s subject matter jurisdiction, our standard of
review is de novo. Glass v. Illinois Department of Corrections, 2022 IL App (4th) 210740, ¶ 3.
De novo means we perform the same analysis a trial court would perform. Khan v. BDO
Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 146 (2011). “A circuit court’s subject
matter jurisdiction is conferred by our state constitution and extends to all ‘justiciable matters.’ ”
Oliver v. Kuriakos-Ciesil, 2020 IL App (4th) 190250, ¶ 17, 163 N.E.3d 1207 (citing McCormick
v. Robertson, 2015 IL 118230, ¶¶ 19-20, 28 N.E.3d 795). “ ‘[T]he question of subject matter
jurisdiction is a matter of the justiciability of the class of cases to which the instant case belongs.
Error or irregularity in the proceeding, while it may require reversal of the court’s judgment on
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appeal, does not oust subject matter jurisdiction once it is acquired.’ ” Oliver, 2020 IL App (4th)
190250, ¶ 17 (quoting In re M.W., 232 Ill. 2d 408, 423, 905 N.E.2d 757, 768 (2009)).
¶ 22 Under section 510(b) of the Illinois Marriage and Dissolution of Marriage Act
(Marriage Act), “The provisions as to property disposition may not be revoked or modified,
unless the court finds the existence of conditions that justify the reopening of a judgment under
the laws of this State.” 750 ILCS 5/510(b) (West 2018). “The provisions for disposition of
property in a dissolution judgment are thus a vested right and the trial court lacks jurisdiction to
modify such provisions once judgment has become final.” In re Marriage of Davis, 292 Ill. App.
3d 802, 807, 686 N.E.2d 395, 399 (1997).
¶ 23 Here, Joe contends the trial court lacked “jurisdiction” to enter the order it did on
July 22, 2020, because it was a modification of a property settlement as part of the Judgment
entered in February of 2018. Joe claims support for his position lies in Waggoner v. Waggoner,
78 Ill. 2d 50, 398 N.E.2d 5 (1979), where the wife, through a motion for contempt, sought to
modify the terms of the property settlement which otherwise made her responsible for a pre-
existing lien on the marital residence she acquired in the divorce. The lien existed before the
settlement agreement was entered, but she contended she was not aware of it when she agreed to
take the property “ ‘subject to the indebtednesses.’ ” Waggoner, 78 Ill. 2d at 51. The Waggoner
court found the wife was not trying to enforce the terms of the existing decree but instead
“engraft new obligations onto the decree” by seeking to compel the husband to remove the lien
and attempting to do so through a contempt proceeding. Waggoner, 78 Ill. 2d at 54. There were
two problems with her approach: first, a modification of the property settlement was not possible
at that stage of the proceedings, and second, contempt was not the appropriate vehicle with
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which to seek a modification anyway. Waggoner, 78 Ill. 2d at 54. As a result, the trial court was
found to lack subject matter jurisdiction to hear the contempt petition. Waggoner, 78 Ill. 2d at 54.
¶ 24 Unfortunately for Joe, the trial court’s order here has no similarity to the contempt
petition in Waggoner. Parenthetically, we note the supreme court began its jurisdictional analysis
with the observation that “a court in a divorce proceeding retains jurisdiction for the purpose of
enforcing its decrees.” Waggoner, 78 Ill. 2d at 53. In fact, “a trial court has indefinite jurisdiction
to enforce the terms of a [marital] judgment that included a MSA [(marital settlement
agreement)].” In re Marriage of O’Malley ex rel. Godfrey, 2016 IL App (1st) 151118, ¶ 42, 64
N.E.3d 729.
¶ 25 B. June 6, 2019, Order
¶ 26 We outline the tortured path this litigation has taken in the past four years to
illuminate the efforts made to resolve the disposition of real estate holdings including the marital
residence and to explain the genesis of the orders. Joe claims the added language in the June 6,
2019, order, improperly modifying the original Judgement, was further modified by the July 22,
2020, order, thereby depriving the trial court of subject matter jurisdiction. The orders of June 6,
2019, and July 22, 2020, were the trial court’s best efforts to enforce the terms of the property
division originally made a part of the Judgment. The June 6, 2019, order arose out of a series of
enforcement petitions filed by Dawn, focused primarily on Joe’s failure to cooperate with the
realtor in selling the Falcon Point residence and the Iles property and failing to pay maintenance,
which Joe had also petitioned to modify. The trial court not only found Joe in contempt for the
unpaid maintenance, but it also found him in contempt for failing to cooperate with the realtors
concerning both the commercial real estate and the Falcon Point residence in question here.
¶ 27 In response to Joe’s claim it no longer had jurisdiction, the trial court concluded:
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“The court disagrees as the court retains jurisdiction to enforce the
terms of the Judgment. Among those terms are that the parties
were ordered to cooperate with the realtor in marketing the
property for sale. Joe has not reasonably cooperated with the
realtor. The provisions of the Judgment must be enforced.”
¶ 28 One lens through which we can look to see whether a trial court’s action
constitutes an improper modification of property distribution can be found in In re Marriage of
Hall, 404 Ill. App. 3d 160, 935 N.E.2d 522 (2010). In Hall, when it was later learned the trial
court had entered a Qualified Domestic Relations Order (QDRO) that inadvertently omitted the
husband’s pension plans, the wife sought modification based on mutual mistake. The trial court
denied the motion, concluding the evidence was insufficient to establish mutual mistake and the
wife was required to establish the defect was the result of duress, disability, or fraud. On appeal,
the Second District found it had been the intention of the parties for the wife to receive 50% of
the husband’s pensions and she was not required to show duress, disability, or fraud because her
petition was not intended to reform the marital settlement agreement, but to enforce the
agreement as intended by the parties. The Hall court relied on similar circumstances found in
In re Marriage of Allen, 343 Ill. App. 3d 410, 798 N.E.2d 135 (2003), where the petitioner-wife
learned the trial court entered a QDRO using the wrong formula, petitioned to amend the QDRO
to reflect the formula contained in the judgment, and was successful. The respondent-husband
argued on appeal the trial court did not have jurisdiction to modify the judgment. Relying on the
court’s “indefinite jurisdiction to enforce the judgment,” the court in Allen concluded the
petitioner was merely attempting “to enforce the petitioner’s rights and obligations.” Allen, 343
Ill. App. 3d at 412-13. Based on this, the court in Hall identified two criteria we can consider
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when determining whether a party is seeking to modify or enforce a property division. It found
the changes requested by the wife “did not impose new or different obligations on the parties,”
and it further found they were “necessary to enforce the petitioner’s rights and obligations.”
(Internal quotation marks omitted.) Hall, 404 Ill. App. 3d at 165.
¶ 29 Here, according to the terms of the original Judgment, the parties were ordered to
“reasonably cooperate with the realtor to market and competitively price the home for sale.” Joe,
who was permitted to reside in the home, was responsible for the payment of the mortgage,
utilities, property taxes, and other reasonable expenses associated with his residence at the home.
Upon sale, he was entitled to reimbursement for one-half the costs of any repairs made, as well
as other reimbursements for payments made “from the date of the entry of the Judgment though
[sic] the date of the sale.” The net proceeds of the sale were then to be divided evenly between
the parties. By the time of the June 6, 2019, order, the trial court had presided over numerous
contested hearings between the parties on a multitude of issues and heard a substantial amount of
testimony over the course of two separate hearings in February and April 2019, relating, in large
part, to the continued efforts to sell the Falcon Point marital residence and the Iles property.
Finding Joe to have been noncompliant in efforts to list and market the commercial property, in
the June 6, 2019, order, the trial court found him in indirect civil contempt. Regarding the Falcon
Point residence, the trial court reiterated the terms of the original Judgment as outlined above,
noting first how, within the terms of the Judgment, the trial court “retained jurisdiction to enforce
its division of marital property and debt.” Joe had originally been found responsible for making
any necessary home repairs prior to sale because he continued to reside in the home and was in a
better position financially to do so. Unfortunately, the evidence presented at the hearings
revealed, among other things, he had made several employment decisions, including forgoing
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financial opportunities worth more than $70,000 a year, for questionable reasons, and he was no
longer able to pay for the repairs. The trial court further outlined how, even though the realtor
was a friend of Joe’s, he was unable to secure Joe’s cooperation in either getting repairs
completed, authorizing photographs, or even facilitating a “virtual tour” of the home for
marketing purposes. Additionally, Joe refused the realtor’s repeated recommendations to reduce
the price for sale.
¶ 30 It was this combination of factors which caused the trial court to conclude Joe’s
failure to cooperate with the realtor’s recommendations to successfully market the residence
required the court to fashion a proper remedy. Although Joe continually maintained the value of
the home exceeded $580,000, he did so without any credible supporting data, and both the realtor
and Dawn sought to have it listed at $505,000. Dawn’s resolution was to suggest the trial court
order Joe to buy her out at the $505,000 figure, which would then establish her equitable interest.
Joe would remain entitled to credits for repairs and payments as provided in the Judgment. If he
was unable to obtain financing to buy her out, her share could come from the sale of the
commercial property or the house when sold. Ironically, the offer to purchase Dawn’s interest at
the $505,000 figure was also proposed by Joe in his written closing argument submitted
simultaneously with Dawn’s.
¶ 31 The trial court elected to accept this suggestion, which not only removed the need
of the parties to cooperate further in the sale of the residence but left Joe free to sell it for more,
obtaining the benefit if he could. The ultimate sale price of the house, or the value of Dawn’s
equitable interest in it, was never a fixed figure in the Judgment, and the court’s decision “did
not impose new or different obligations on the parties.” Further, based on the ongoing problems
in obtaining Joe’s cooperation, it was “necessary to enforce the petitioner’s rights and
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obligations.” (Internal quotation marks omitted.) Hall, 404 Ill. App. 3d at 165. The condition
contained in the June 6, 2019, order requiring Joe to refinance the home to pay Dawn her
equitable interest or, if unable to do so, pay it from the sale of the Iles property, was no different
than the terms of the original Judgment. He was still entitled to reimbursement for the same
repairs and expenses, and her equitable share remained the same, with payment coming from the
sale of the Iles property instead of the sale of the residence since Joe had obstructed any effort to
successfully market the Falcon Point residence. At the time of the original Judgment, it was
contemplated that credit for the satisfaction of any outstanding debts, costs of repairs, or other
expenses relating to the Falcon Point residence would come from either the sale of the residence
or the commercial property, as evidenced by the included contingency for satisfying any
outstanding debts, costs of repairs, or other expenses paid by Joe “if the Iles property is not
sold.” Instead, by the time of the June 6, 2019, order, it was apparent the commercial property
was likely to sell before the residence, the sale of which, after the order, would fall squarely
within the control of Joe alone. Whether payment came from the sale of the home or the
commercial property, the adjustments and Dawn’s share remained the same. Again, these were
conditions and terms which were neither new nor different and were necessary to effectuate the
terms of the Judgment.
¶ 32 Little discussion is needed to dispel Joe’s claim the order fails to designate when
credits were to be determined against Dawn’s share. Under his scenario, they continue
ad infinitum unless or until he eventually sells the house. The order of June 6, 2019, was clear;
“Joe is ordered to buy out Dawn for the value of the residence of $505,000.” He was then to
obtain financing within 45 days to do so, minus any “bona fide credits he may otherwise have
under the provisions of the Judgment.”
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¶ 33 Here, the trial court was making a determination, based on the recommendation of
both parties, of what Dawn’s equitable interest or “share” would be, thereby setting the date on
which Joe’s credits were to be calculated. The rights of the parties were fixed as of the date of
the order. The trial court’s order became effective June 6, 2019—the date it was entered—and
Joe’s credits were to be calculated as of that date. Remember, the intent of the order was to
remove the need for the parties to be jointly involved in the sale of the house any further, accept
the proposal from both sides to buy her out at the $505,000 figure, and allow Joe to manage any
sale thereafter as he saw fit. Not only is there nothing new about these conditions, but they arose
from the recommendations of both parties. For Joe to claim the court erred by crafting a
resolution including a buy-out of Dawn’s interest at the $505,000 figure, he ignores his own
invitation to the court to consider it as a resolution of the issue. In his written arguments to the
court in May 2019 he said, “If she is willing to sell it for that amount of money, Joe should have
the option to purchase Dawn’s interest in the property for an amount equal to what she would net
from the sale of the premises at a $505,000.00 sale through the realtor.” A party cannot complain
of error that he invited. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, ¶ 152,
18 N.E.3d 215. “Invited error is a form of estoppel that bars a party from complaining on appeal
about ‘error which that party induced the court to make or to which that party consented.’ ”
LifeEnergy, LLC v. Illinois Commerce Comm’n, 2021 IL App (2d) 200411, ¶ 76 (quoting In re
Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004)). Here, there was no error,
but Joe is still prohibited from complaining about the trial court’s selection of a course of action
he suggested.
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¶ 34 For all these reasons, we find the trial court’s order of June 6, 2019, was a proper
exercise of the court’s continuing jurisdiction to enforce its own prior judgments. See In re
Marriage of Warner, 2020 IL App (3d) 190198, ¶ 22, 151 N.E.3d 220.
¶ 35 C. July 22, 2020, Order
¶ 36 Joe’s primary claim on appeal is that the trial court was without jurisdiction to
enter its order of July 22, 2020, because it was a modification of the terms of the property
division in the original Judgment, as well as a modification of the June 6, 2019, order, which he
contended was improperly entered for the reasons we have discussed above. Like the June 6,
2019, order, the July 22, 2020, order was preceded by a series of petitions seeking enforcement
of the previous court orders, noting Joe’s continued refusal to cooperate with the realtor. In the
order, the trial court expressly found discussions held by the parties during the hearing preceding
the written order “were not, and shall not be, considered a change or modification of the June 6,
2019[,] ruling by the court.” Once again, the court laid out the terms of the June 6, 2019, order
requiring Joe to buy out Dawn’s equitable interest in the Falcon Point residence at $505,000
minus any credits due Joe up to June 6, 2019, the date of the order. The court further noted the
residence was to remain for sale, and it became Joe’s responsibility to choose the realtor and
listing price for sale. Any signature required of Dawn on the listing agreement did not prejudice
her right to be bought out at the $505,000 figure agreed to by the parties.
¶ 37 Considering the sequence of events leading up to the July 22, 2020, order, it is
clear from this record the trial court was not seeking to modify either the original property
division contained in the Judgment or the June 6, 2019, order. Nothing about the July 22, 2020,
order added new terms to the property division. The Falcon Point residence remained to be sold,
the parties had agreed on a price at which Dawn’s equitable interest would be calculated, and Joe
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was still to receive the credits outlined in the Judgment up to the date of the court’s June 6, 2019,
order fixing the interests of the parties in the real estate.
¶ 38 Since Joe maintained throughout the proceedings the house was worth more and
refused to accept the recommendations of the realtor, the trial court fashioned a remedy whereby
he could hire whomever he chose as the realtor and could set the sale price. Once again, he was
ordered to cooperate with the realtor, although his track record to date had not been good. The
July 22, 2020, order did not impose new or different obligations on the parties. As we noted
above, a modification occurs under section 510(b) of the Marriage Act (750 ILCS 5/510(b)
(West 2018)) “when new obligations are engrafted onto a party under the order.” Warner, 2020
IL App (3d) 190198, ¶ 22. In Warner, the roles were reversed and the wife, who was awarded the
farm, was ordered to pay her husband an equitable share either by securing financing or selling
the farm. Warner, 2020 IL App (3d) 190198, ¶ 6. Much like the case before us, after several
years of contentious litigation, the trial court found the wife was “ ‘defending the status quo
through procrastination and intransigence’ ” and ordered the farm sold at a price offered by a
buyer located by the husband. Warner, 2020 IL App (3d) 190198, ¶ 16. On appeal, the wife
claimed the trial court lacked subject matter jurisdiction to modify the property disposition under
section 510(b). Warner, 2020 IL App (3d) 190198, ¶ 20. The appellate court found the trial court
was simply enforcing the original judgment. Warner, 2020 IL App (3d) 190198, ¶ 24. The wife’s
obligation under the original judgment had been to sell the farm and settle the marital estate, and
the court’s resolution was merely enforcement of that judgment within the “ ‘indefinite
jurisdiction’ ” of the trial court. Warner, 2020 IL App (3d) 190198, ¶ 24. The same is true here.
Although the mechanics of the process were, by necessity, changed due to Joe’s complete lack of
cooperation, the parties continued to receive what they were awarded in the property division,
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there were no new or different obligations imposed on them, and the terms ordered were
“necessary to enforce the petitioner’s rights and obligations.” (Internal quotation marks omitted.)
Hall, 404 Ill. App. 3d at 165.
¶ 39 III. CONCLUSION
¶ 40 For all these reasons, we find the trial court’s July 22, 2020, order was an order
enforcing, not modifying, the property division contained in the original Judgment and fell
within the “indefinite jurisdiction” of the trial court. Accordingly, we affirm the judgment of the
trial court.
¶ 41 Affirmed.
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