[N.B.] The following motion and affidavit were filed with the Clerk of the First District Illinois Appellate Court on August 11, 1998. 

_________________________________________________________________

                              )
                              )
EUGENE W. ALPERN,             )    Appellate Ct. 1-92-2905,
     Respondent-Appellant     )    92-2975, 93-0240 & 93-0601
                              )
          v.                  )
                              )    Trial Ct. 91-D-5122
PHYLLIS ALPERN,               )
     Petitioner-Appellee      )    Judge Philip S. Lieb
                              )
                              )

NOW COMES the Appellant-Respondent, Eugene Alpern ("EUGENE"), and moves this Court to vacate its Rule 23 Order issued August 24, 1995 for the Court's want of subject-matter jurisdiction. In support of his Motion To Vacate Void Judgment under 735 ILCS 5/2 - 1401(f), EUGENE files the attached Affidavit and states as follows:

1. The purported order sending this appeal back with a mandate to the Circuit Court has no validity to be construed as a finding of jurisdiction where no jurisdiction existed.

2. A motion to vacate under 735 ILCS 5/2-1401(f) can be filed in any proceeding, "regardless of the nature of the order or judgment from which relief is sought; or of the proceedings in which it was entered." 735 ILCS 5/2-1401.

A Motion to Vacate a Void Order "must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof." 735 ILCS 5/2-1401(b). It is a new proceeding under the same file number.

It is therefore proper and a requirement that a 735 ILCS 5/2-1401(f) motion to vacate a void order of the Appellate Court be filed in the Appellate Court.

A motion to vacate a void judgment can be brought in any court. Evans v. Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (1990) ("a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally"); In re Marriage of Macino, 236 Ill.App.3d 886 (1992) ("if the order is void, it may be attacked at any time in any proceeding,".

3. There is no time limit within which to file a motion to vacate a void order or judgment. 735 ILCS 5/2-1401(f); People v. Wade, 116 Ill.2d 1, 506 N.E.2d 954 (1987) ("A void judgment may be attacked at any time, either directly or collaterally."); In re Marriage of Macino, 236 Ill.App.3d 886 (1992) ("if the order is void, it may be attacked at any time in any proceeding, ").

4. One does not have to evidence due diligence or have a meritorious reason for obtaining relief under a motion to vacate a void order or judgment under section f of 735 ILCS 5/2-1401.

Since the Appellate Court had no lawful authority to issue the order that it issued, and therefore had no lawful authority to send the mandate back to the trial court, the 92- 2905 consolidated action is still lawfully before this Court.

5. The only issue in a Motion to Vacate a Void Order or Judgment under 735 ILCS 2-1401(f) is "does an inspection of the record of the case support the conferring by law of subject- matter jurisdiction in the case"; no other issue applies to a 1401(f) motion.

6. All courts have a duty to vacate void orders. Jordon v. Gilligan, 500 F.2d 701, 704 (1974) ("A void judgment is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside."; 7 J. Moore, Federal Practice, 60.25."); Textile Banking Company, Inc. v. Rentschler, 657 F.2d 844, 850 (7th Cir. 1981) ("If the underlying judgment is void because the court lacked personal or subject matter jurisdiction or because the entry of the order violated the due process rights of the respondent, the trial judge has no discretion and must grant appropriate Rule 60(b) relief."); People v. Shurtleff, 355 Ill. 210, 189 N.E.2d 291 (1933) ("if it develops in the course of a proceeding that the court does not have jurisdiction in the particular case, any order except one dismissing the proceeding is void.") ("the court could do nothing but dismiss the proceeding"); People v. Magnus, 262 Ill.App.3d 362, 633 N.E.2d 869, 872 (1st Dist. 1994) ("The duty to vacate a void judgment is based on the inherent power of the court to expunge from its records void acts of which it has knowledge." Irving v. Rodriquez (1960), 27 Ill.App.2d 75, 79, 169 N.E.2d 145.); People v. Childs, 278 Ill.App.3d 65, 663 N.E.2d 161 (1996).

7. The Appellate Court only has subject-matter jurisdiction if the trial court held subject-matter jurisdiction. The People v. Industrial Sav. Bank, 275 Ill. 139, 113 N.E. 937 (1916) ("Where the trial court has no jurisdiction, an appeal or writ of error can confer no jurisdiction on the reviewing court."); Marriage of Arrington, 146 Ill.App.3d 121, 497 N.E.2d 117 (1st District, 1986) ("It is axiomatic that when a trial court has no jurisdiction, an appeal cannot act to confer jurisdiction on the reviewing court.").

It is well-settled law that there is a presumption against subject-matter jurisdiction in courts of limited jurisdiction, including courts of statutory jurisdiction, such as divorce courts. People v. R.D.S., 94 Ill.2d 77, 84 (1983) ("However, no such presumption prevailed in connection with special statutory jurisdiction. In such cases jurisdiction was never presumed, and whatever the jurisdiction of the court, the proceedings were required to be in strict conformity with the statute.").

The underlying case, 91-D-5122, is a divorce case, a product of a state statute, is a statutory proceeding and is governed by the law relative to a court of limited jurisdiction.

Appellate Courts are also courts of limited jurisdiction; therefore there is a presumption against subject- matter jurisdiction in Appellate Court proceedings. The Appellate Court is without subject-matter jurisdiction if the underlying trial court is without subject-matter jurisdiction.

EUGENE denies that this Appellate Court ever held subject-matter jurisdiction in case no. 92-2905 (consolidated); the Appellate Court only held the inherent power of the court to vacate the void judgment of the 91-D-5122 trial court. When subject-matter is denied, the party who claims that the Court has subject-matter jurisdiction has the burden to prove that the Court has subject-matter jurisdiction. Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991) ("the burden of proving jurisdiction rests upon the party asserting it."); Loos v. American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841 (1988) ("Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.").

The subject-matter jurisdiction of this Appellate Court has never been established.

8. A statement by a judge that he has subject-matter jurisdiction does not confer subject-matter jurisdiction upon his court. If the statement is not supported by an inspection of the record of the case, then no subject-matter jurisdiction was conferred, Lombard v. Elmore, 134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985) ("a trial court's express finding that it has jurisdiction does not confer jurisdiction.") ("a trial court's intent to retain jurisdiction does not confer jurisdiction."); Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1st Dist. 1975) ("Neither does the court acquire jurisdiction by a mere recital in an order, which is contrary to what is shown in the record"). The judge's statement is nothing more than an unproven allegation.

This Court had no authority to make a finding that it had subject-matter jurisdiction. The People v. Brewer, 328 Ill. 472, 483 (1928) ("If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding.").

This Court's, and the trial court's, allegation that it has subject-matter jurisdiction was not supported by the record of either case. Both courts acted without jurisdiction.

9. This Court inspected the record of trial case no. 91-D- 5122 and stated that "Although petitioner's petition is not included in the record on appeal". This Court confirmed EUGENE's statement of fact that there was no Petition in the record of the case.

Without a Petition for Dissolution of Marriage in the record of the case, the August 10, 1992 judgment was void, as well as the August 24, 1995 order of his Court.

10. On July 19, 1993 the Chief Deputy Clerk of the Circuit Court of Cook County had requested additional time for the Clerk to restore the file.

11. On February 9, 1994 this Court issued an order that stated "The parties are ordered to prepare and file their briefs based upon the record available". [Exhibit A].

The available record of case no. 91-D-5122 and the record presented to the Appellate Court for review were identical.

12. EUGENE has at all times challenged the lack of subject- matter jurisdiction of the 91-D-5122 trial court, and continues to deny that the 91-D-5122 trial court ever held subject-matter jurisdiction.

Courts have held that the burden of proving jurisdiction rests upon PHYLLIS ALPERN ("PHYLLIS"). Bindell, supra; Loos, supra. And the failure of PHYLLIS to establish that the 91-D-5122 trial court ever held subject-matter jurisdiction does not confer any subject-matter jurisdiction upon that court - it still remains without subject-matter jurisdiction, as long as there is no Petition which can be examined to determine if it complies with statutory requirements. Bates v. Board of Education, Allendale Community Consolidated School District No. 17, 136 Ill.2d 260, 267 (1990) ("it cannot confer jurisdiction where none existed and cannot make a void proceeding valid."). Nor does it confer any subject-matter jurisdiction upon this Court.

13. When subject-matter jurisdiction is denied, it becomes the responsibility of the party claiming that the court has subject-matter jurisdiction to prove that the court holds subject-matter jurisdiction. Bindell, supra; Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill.App.601, 428 N.E.2d 532 (1981) ("Where jurisdiction is denied by the defendant, the burden of proving its presence rests upon the party asserting it.").

This Court is not a party to the proceeding and therefore have no lawful authority to assert or prove that either Court has subject-matter jurisdiction.

14. At no time has PHYLLIS established, from the record of the case, that the 91-D-5122 trial court ever held subject-matter jurisdiction.

EUGENE has no burden to prove that the 91-D-5122 trial court lacks subject-matter jurisdiction; contrary it is the duty of PHYLLIS to prove that the 91-D-5122 trial court held subject- matter jurisdiction at all times.

15. Subject-matter jurisdiction cannot be conferred upon a court by agreement or by consent. Klopfer v. Court of Claims, 286 Ill.App.3d 499, 676 N.E.2d 679 (1st Dist. 1997) ("subject matter jurisdiction cannot be conferred by the consent or acquiescence of the parties, neither can it be conferred by estoppel"); Board of Educ. of City of Chicago v. Box, 191 Ill.App.3d 31, 547 N.E.2d 627 (1st Dist. 1989) ("subject matter jurisdiction cannot be conferred by any form of laches, consent, waiver, or estoppel.").

At no time has EUGENE consented to, acquiesced to, or agreed that the 91-D-5122 trial court ever held subject-matter jurisdiction; even if EUGENE had, no subject-matter jurisdiction could be conferred upon that court by that procedure.

16. At no time did the record of the 91-D-5122 trial court ever hold a Petition for Dissolution of Marriage which was valid.

17. Without a valid Petition for Dissolution of Marriage in the record of the 91-D-5122 trial court, the 91-D-5122 court was without subject-matter jurisdiction.

18. The Supreme Court, in Brown v. VanKeuren, 340 Ill. 118, 122 (1930), stated that:

"The petition required to put the court in motion and give it jurisdiction must be in conformity with the statute granting the right and must show all the facts necessary to authorize it to act, -i.e., it must contain all the statements which the statute says the petition shall state, - and if the petition fails to contain all of these essential elements the court is without jurisdiction."

The Illinois Supreme Court, in Agricultural Transp. Ass'n v. Carpentier, 2 Ill.2d 19, 116 N.E.2d 863 (1953) stated: "Where the Supreme Court has declared the law on any point, it alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound by such decision and it the duty of such lower tribunal to follow such decision in similar cases." This Court, as well as the 91-D-5122 trial case, without a Petition in the record of the case, have acted without jurisdiction.

EUGENE suggests that PHYLLIS removed whatever may have been filed as a purported Petition, as it did not comply with the requirements of VanKeuren. PHYLLIS had the burden to restore to the record whatever was filed as the original purported Petition.

19. PHYLLIS has the duty to prove that the purported Petition originally filed in case no. 91-D-5122 was in conformity with the statute granting the right and that it showed all the facts necessary to authorize the court to act, -i.e., it must contain all the statements which the statute says the petition shall state.

20. As PHYLLIS has not proved that the non-existent Petition for Dissolution of Marriage conformed to the requirements of the statute, the Petition did not confer subject- matter jurisdiction upon the 91-D-5122 trial court. Further such Petition is not a part of the record of the case, a Petition which the Petitioner must provide.

The presumption of a lack of subject-matter jurisdiction of the 91-D-5122 trial court, as stated by law continues, even to this day.

21. Since there is no proof that the 91-D-5122 trial court held subject-matter jurisdiction, this Appellate Court did not hold subject-matter jurisdiction to review the proceedings of the trial court. The People v. Industrial Sav. Bank, 275 Ill. 139, 113 N.E. 937 (1916) ("Where the trial court has no jurisdiction, an appeal or writ of error can confer no jurisdiction on the reviewing court."); Marriage of Arrington, 146 Ill.App.3d 121, 497 N.E.2d 117 (1st District, 1986) ("It is axiomatic that when a trial court has no jurisdiction, an appeal cannot act to confer jurisdiction on the reviewing court.").

22. The lack of subject-matter jurisdiction of the 91-D- 5122 trial court affirmatively appears from the record proper.

23. PHYLLIS has had more than 5 years to establish that the 91-D-5122 trial court held a valid Petition for Dissolution of Marriage. PHYLLIS has not provided such evidence. PHYLLIS should be estopped from attempting to provide such evidence after this period of time.

EUGENE suggests that the reason PHYLLIS has not provided such evidence is that such evidence does not exist, nor has it ever existed.

24. Where jurisdiction is challenged, the party claiming that the court has jurisdiction has the burden of producing the record which evidences that the court has the jurisdiction to act. EUGENE does not have the requirement to produce any record relative to jurisdiction. Only PHYLLIS has that burden, and she did not met her burden of proving that the trial court held subject-matter jurisdiction.

EUGENE suggests that this reviewing court placed the burden on the wrong party; it denied due process of law to EUGENE.

25. As the Supreme Court has held, in Franson on Behalf of Franson v. Micelli, 172 Ill.2d 352, 666 N.E.2d 1188 (1996) that Illinois courts, including the Appellate Courts, have a duty not to exceed their jurisdiction and must vacate any void decision. The Court stated "When, as here, the appellate court has considered the merits of a case when it had no jurisdiction to do so, we must vacate the court's judgment and dismiss the appeal."

This Court, just as in the Franson court, should not have attempted to consider the merits of the case when it did not have the subject-matter jurisdiction to do so.

This court has a duty to vacate the void Rule 23 order that it improperly issued and a duty to vacate the void trial court judgment.

26. As this court was without subject matter jurisdiction to review the orders/judgment of a trial court without subject- matter jurisdiction, this court only had the inherent power to vacate the orders and judgment of the 91-D-5122 trial court for want of subject-matter jurisdiction.

This Court further has inherent power to declare any order void which was entered on any issue involved or on any procedural order entered as an adjunct to its consideration of any issue before it (whether on review or in any original proceeding).

A court does not need subject-matter jurisdiction to vacate a void order; it only needs the inherent power of the court, which every court has, to vacate the void order issued on August 24, 1995.

27. EUGENE suggests that since this Court has determined that there was no Petition in the record of appeal (a record identical to the record of the case), the natural and reasonable consequences of those facts are embodied in the law which states that jurisdiction was never conferred upon the trial court. This Court should therefore vacate the trial judgment as being void for lack of jurisdiction.

28. In courts of limited jurisdiction, such as in divorce courts and in Appellate Courts, the court must make, among other things, findings of fact as to their subject-matter jurisdiction. In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977) ("in a special statutory proceeding an order must contain the jurisdictional findings prescribed by statute."); Zook v. Spannaus, 34 Ill.2d 612, 217 N.E.2d 789.

No findings of fact as to subject-matter jurisdiction appear in the purported orders or the purported judgment of the 91-D-5122 trial court or in this Appellate Court. The fact that the Appellate Court found no petition in the record of the trial court case militates against any supposition that there was subject-matter jurisdiction.

29. Since this Court found the lack of a Petition for Dissolution of Marriage in the record of the trial case, the judgment of the trial court was void, and no justiciable controversy was presented to either the trial court or this Court.

It is a clear and well-defined dominant public policy of the State of Illinois for Courts to vacate all void orders and judgments. Franson, supra; Shurtleff, supra; Magnus,supra. EUGENE suggests that this Court should follow the well- established strong public policy and vacate the void 91-D-5122 trial judgment and the void 92-2905 Appellate order.

WHEREFORE, the Appellant-Respondent prays that this Court will

A. issue an Order vacating its Order of August 24, 1995 for lack of subject-matter jurisdiction, and

B. issue an order vacating the orders/judgment of the 91- D-5122 trial court for lack of subject-matter jurisdiction.

                                   Respectfully submitted,

                                   ___________________________
                                   Eugene Alpern

Eugene Alpern
P.O. Box 672
Morton Grove, IL 60053-0672

_________________________________________________________________

                              )
                              )
EUGENE W. ALPERN,             )    Appellate Ct. 1-92-2905,
     Respondent-Appellant     )    92-2975, 93-0240 & 93-0601
                              )
          v.                  )
                              )    Trial Ct. 91-D-5122
PHYLLIS ALPERN,               )
     Petitioner-Appellee      )    Judge Philip S. Lieb
                              )
                              )

I, Eugene Alpern, being duly sworn and deposed, hereby states that if called to testify in this matter, I could and would testify to the following to my personal knowledge:

1. That I am the purported respondent in Phyllis Alpern v. Eugene Alpern, case no. 91-D-5122 (Cook County), and that I am of legal age and a resident of Morton Grove (Cook County) Illinois.

2. That I have never been served with a Petition for Dissolution of Marriage which is valid.

3. That on May 21, 1993 Presiding Judge Benjamin Mackoff ordered the Clerk of the Circuit Court of Cook County to restore the record of case no. 91-D-5122.

4. That on July 19, 1993 the Chief Deputy Clerk of the Circuit Court of Cook County requested from the Appellate Court additional time to complete the restoration of the 91-D-5122 record of the case.

5. That the Chief Deputy Clerk of the Circuit Court of Cook County had on September 30, 1993, caused to be made an affidavit which was filed with the First District Appellate Court, case no. 1-92-2905, in Eugene Alpern, Appellant v. Phyllis Alpern, Appellee, that a portion of the record of case no. 91-D- 5122 was missing. The affidavit included a record of those documents that were within the record of the 91-D-5122 trial case. Said affidavit was filed with the Appellate Court in case 1-92-2905 and was incorporated into, and can be found in, the Appellate Court case record.

The Petition for Dissolution of Marriage was not itemized in the affidavit as among those items which were in the record of the case, which was certified to the Appellate Court.

6. That on February 9, 1994 the First District Appellate Court issued an order that stated "The parties are ordered to prepare and file their briefs based upon the record available".

The available record of case no. 91-D-5122 and the record presented to the Appellate Court for review were identical.

7. That even of today, Donna Hubbell of the Clerk of the Circuit Court of Cook County, who has been placed in charge of all documents in case no. 91-D-5122, has informed me that none of the missing documents have ever shown up.

8. That Justices O'Brien, Theis, and Hoffman, in their Rule 23 order, stated that "Although petitioner's petition is not included in the record on appeal".

9. That the record presented to the Appellate Court and the record of case no. 91-D-5122 are identical.

10. That the Illinois Supreme Court has repeatedly ruled that:

"The petition required to put the court in motion and give it jurisdiction must be in conformity with the statute granting the right and must show all the facts necessary to authorize it to act, -i.e., it must contain all the statements which the statute says the petition shall state, - and if the petition fails to contain all of these essential elements the court is without jurisdiction."

11. That Judge William Ward, on December 8, 1997, inspected the record of case no. 91-D-5122 and stated that he could not find any Petition for Dissolution of Marriage in the record of the case.

12. That Eugene Alpern has at all times believed and asserted that no court in case no. 91-D-5122, or in any case associated with case no. 91-D-5122, had any subject-matter jurisdiction in that case.

13. That Eugene Alpern at all times has denied that any judge in case no. 91-D-5122, or in any case associated with case no. 91-D-5122, had any subject-matter jurisdiction.

14. That Eugene Alpern has demanded that Phyllis Alpern produce a certified copy of the Petition for Dissolution of Marriage from the record of case no. 91-D-5122.

15. That Phyllis Alpern has never produced a copy of a valid Petition for Dissolution of Marriage filed in case no. 91- D-5122.

16. That all orders and judgments rendered in case no 91-D- 5122 were void ab initio.

17. That Phyllis Alpern has never denied that a Petition for Dissolution of Marriage is not in the record of case no. 91- D-5122.

18. That Phyllis Alpern has never contested the issue that a Petition for Dissolution of Marriage which was valid was never filed in the 91-D-5122 trial court action.

19. That I have no recollection of any kind, oral or written, wherein I agreed that a valid Petition of Dissolution of Marriage was ever filed in the 91-D-5122 trial case.

20. That the failure of Phyllis Alpern to furnish a valid Petition for Dissolution of Marriage does not comply with her duty to maintain the burden of her proving by requisite facts to give the Court subject-matter jurisdiction.

FURTHER AFFIANT SAYETH NAUGHT.

Dated August 11, 1998

                                   _____________________________
                                   Eugene Alpern


Sworn & subscribed before me
this 11th day of August 1998.



___________________________________
Notary Public

Copyright© 1998 by Citizens for Legal Responsibility®.
                    All rights reserved.



email: clr@clr.org

        Return to Justice Sheila M. O'Brien main page

        Return to Home Page

August 11, 1998