dissenting:
I cannot agree with the conclusion that the appeal in this case is untimely. The rationale offered for this result transcends the notion of elevating form over substance; it creates substance where none exists and is as untenable in theory as it is in practice.
At the outset, it cannot be overlooked that virtually every signif-
leant document and occurrence upon which the majority relies is not substantiated by the record on appeal. The majority candidly admits that the correspondence between counsel is not included in the record. Moreover, the arguments in the briefs concerning the substance of communications between counsel and the court cannot be verified by any document or evidence contained in the record. It is error to consider documents which are not properly a part of the record (see People v. Scudder Buick, Inc. (1971), 47 Ill. 2d 388, 390-91, 266 N.E.2d 324, 325-26), just as it is to rely upon statements of fact and arguments based on surmise which appear only in the briefs on appeal. See McArthur v. Weidert (1941), 310 Ill. App. 504, 508, 34 N.E.2d 715, 717.
Quite apart from these irregularities, however, are the conclusions the majority reaches from these nonrecord facts. The longstanding precedent in this State is that a trial court has jurisdiction for a period of 30 days after entry of a final order or judgment to modify that judgment not only on timely motion of a party, but also sua sponte, in order to do justice between the parties. (Welch v. RoMark, Inc. (1979), 79 Ill. App. 3d 652, 656, 398 N.E.2d 901, 904.) In Krieger v. Krieger (1906), 221 Ill. 479, 484, 77 N.E.2d 909, 911, the supreme court stated:
"During the term at which a judgment or decree is entered the record remains in the breast of the court, and the court may, at any time during the term, amend it or set it aside on its own motion or for good cause shown, as justice and the right of the case may seem to require.”
In this case, the court amended the February 8, 1993, judgment on March 3, 1993, when it added an additional provision concerning revised visitation rights. Whether that March 3, 1993, order was an agreed-upon accommodation to respondent or an inadvertent omission or oversight in the February 8, 1993, judgment is beside the point. The trial court had the inherent power to amend the judgment and, for all this record shows, that is precisely what it did.
Even if it were permissible to consider these nonrecord events, the majority’s conclusion fares no better. The letter from respondent’s counsel of February 8, 1993, to opposing counsel cannot rationally be considered a "post-trial motion.” In the first instance, it was addressed to opposing counsel, rather than the court, although a copy of the letter was apparently sent to the court. In addition, it was sent prior to respondent’s counsel’s knowledge that the court had already entered the judgment.
The majority’s additional, gratuitous argument that the March 3, 1993, amendment does not qualify as a nunc pro tunc order is correct, as far as it goes. No party to this appeal has made that argument, and there is certainly nothing of record which would have justified the entry of such an order had that theory ever been presented on appeal.
Finally, the majority’s reliance upon Leopando is clearly misplaced. The Leopando holding is that issues raised in a dissolution of marriage case are not separate claims and therefore are not appealable under Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).) This appeal does not concern the issue of whether there are separate claims. The amendment of an order concerning visitation is not a separate claim. The issue is the effect of the trial court’s subsequent modification of an otherwise final judgment within 30 days following its entry.
That the trial court could have required the parties to address this matter by a formal post-trial motion and could have declined to enter the March 3, 1993, order in the absence of a formal pleading requesting such relief is without doubt. The point is that the trial court did not do so.
The informal communications in this case which apparently led to the trial court’s decision to alter the judgment doubtlessly occur in any number of situations at the trial court level. They should not, however, be elevated to some form of exotic "under-the-table” post-trial motion practice as the majority has done. The principle that a trial judge has authority to modify an order within 30 days of its entry does not require that the court act in a vacuum without any external stimulus to prompt that decision.
In the absence of a claim that the court erred in entering the amended judgment, the issue of whether a post-trial motion is timely and proper should be judged by objective standards related to the timing of the motion and its subject matter. These issues should not be dependent upon or subject to appellate review because of subjective motivations which prompted the court to enter the underlying order in the first instance.
I dissent.