dissenting:
This record discloses that the division of marital property provided in the decree of dissolution dated May 1,1978, simply embraced a division agreed upon by the parties. The husband’s counsel read and the wife’s counsel agreed that that decree incorporated the language:
"* * * it is further ordered that the parties having chosen to divide all marital property between themselves prior to the presentation of this case, it is cause [sic] to the court there is no marital property to be divided.”
Thus, the trial court was not called upon to hear evidence and divide the marital property within the criteria stated in section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503) and particularly subsection (c)(7), which provides for consideration of:
“(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; * * *."
The prior mandate of this court is framed as a determination that the marital pension was marital property and the language that the wife “has an interest to be determined by the trial court in 217/240 percent of James’ net retirement benefits as a part of the property settlement.” (Emphasis added.) 70 Ill. App. 3d 706, 709, 388 N.E.2d 1289, 1291.
Such language does not mean that the trial court must mechanically make such division and award it to the wife. Properly read, the sentence means that the stated percentage is marital property and that the trial court is to determine the wife’s interest in such marital property through the criteria stated in section 503 of the Act.
It appears in the record that the wife’s counsel insisted that in complying with the mandate filed the trial court was limited and bound to make only the mechanical division stated in the opinion of this court. I believe that the trial court was misdirected by such argument.
Without suggesting authority, the opinion asserts that the interests of the parties must be determined in terms of the conditions on May 1,1978. Within the boundaries of this record, the provisions of section 510(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(a)), which limit the revocation or modification of the terms of a decree fixing a property settlement does not properly become operative, for the decree of May 1,1978, did not, in fact, make a judicial determination of the proper division of marital property. It simply accepted the agreement of the parties. The language of this court’s opinion that the trial court determine the wife’s interest in the marital property required a hearing upon appropriate evidence which the record shows have not theretofore been heard.
I suggest that the interpretation of section 510 of the Act as stated in the majority opinion is incorrect. In In re Marriage of Herron (1979), 74 Ill. App. 3d 748, 393 N.E.2d 1153, the court considered the operative relation between section 610 of the Act and a timely motion under section 68.3 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 68.3.) Herron pointed out that section 610 was directed to “final” orders of the trial court, saying:
“We read nothing in section 610 which restricts the use of Civil Practice Act provisions or Supreme Court Rules to vacate or revise a judgment on grounds not peculiar to child custody cases. Thus, for example, section 610 does not preclude a motion under sections 50(5) or 68.3 of the Civil Practice Act * * *." (74 Ill. App. 3d 748, 753, 393 N.E.2d 1153, 1156.)
There is no contention that the husband’s motion was untimely and the Herron rationale is equally applicable to section 510 of the Act.
A misapprehension of the law by the trial court with regard to its authority upon remand supports the use of discretion by that court in granting a motion under section 68.3 of the Civil Practice Act. Fulwider v. Fulwider (1972), 8 Ill. App. 3d 581, 290 N.E.2d 264.
The majority opinion does not report the “just proportions” which it purports to provide for the parties. At the time of the remand, the husband had suffered a heart attack. In August 1979, he required heart bypass surgery. In the chronology of the record, he would have been recuperating from such surgery at the time of the court’s decree purporting to be pursuant to the mandate. A prognosis schedule extended rehabilitative therapy.
In 1979 his gross income from part-time employment was approximately $3900. His gross military benefit was $7450. In the first five months of 1980 the husband had had no employment. The hearing discloses that the wife was regularly employed at a bank earning $10,000 a year. She also received, at least for the time being, some $960 annually from her son. The living expenses of the parties were not remarkably different. Upon this record the trial court could reasonably conclude that the husband’s possibilities of earning a living were nil or substantially limited and that his only recourse was his military retirement benefit.
I would hold that the trial court correctly set aside its decree and heard the evidence under the provisions of section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) and that the trial court did not abuse its discretion in entering the decree now appealed.