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Tailby v. Tailby





Appeal by defendant from the Circuit Court of Shelby county; the Hon. WARD P. HOLT, Judge, presiding. Heard in this court at the February term, 1951. Affirmed. Opinion filed March 7, 1951. Released for publication April 3, 1951.


The complaint in this case was filed in the circuit court of Shelby county, Illinois, on July 6, 1948, by plaintiff appellee, Mae Cox Tailby, against defendant appellant, Clarence Burr Tailby, to obtain a judgment against defendant for the amount of accrued and unpaid alimony and solicitor's fees alleged to be due plaintiff under a New York court decree, and asking that such New York court decree for alimony and solicitor's fees be established as a foreign judgment and enforced by appropriate equitable remedies.

The present case was tried before the court without a jury. We do not consider it necessary to state the pleadings.

The circuit court of Shelby county entered an order in which it was ordered, adjudged and decreed that a decree of the Supreme Court of Kings county, New York, entered November 2, 1945, for the payment of attorney's and solicitor's fees was a valid judgment of the State of New York, that the plaintiff have and recover in the Illinois court proceeding from the defendant on said New York judgment $12,050 for her alimony and counsel fees up to and including October 3, 1949, together with the sum of $1,128 for her alimony from said last date to March 10, 1950, making a total of $13,178 and ordered that the defendant's counterclaim be dismissed. This appeal is by the defendant from such last order.

Plaintiff and defendant were married in the State of New York on May 28, 1926, and thereafter lived together as husband and wife in the State of New York for several years.

They separated in 1933 and thereafter did not live together. Her residence at all times since 1941 has been and is in the State of New York. At all times since 1941 his residence has been in some State other than New York. For the last several years his residence has been and is in Illinois.

In August 1941, a written agreement was executed by plaintiff in New York and by defendant in Illinois, which stated that plaintiff was about to commence an action in the Supreme Court of Kings county, New York, for an absolute divorce, and had been advised by her counsel that she could not obtain a valid decree of divorce in New York unless she obtained service of process on the defendant in that State, or unless the defendant voluntarily entered his appearance in such a suit, that defendant agreed, in the event the plaintiff should institute suit in such New York court, he would voluntarily enter his appearance therein by counsel of his own selection, upon the express condition that if a decree of divorce was granted the decree should provide for the payment of alimony in gross of $1,200, that he did not agree plaintiff was entitled to a decree of divorce, or to assist her in obtaining a divorce, but only to enter his appearance on condition that if an award of alimony in gross of $1,200 was entered in such proceeding he would pay such sum in satisfaction of said decree, provided said decree should then be fully satisfied of record and all obligations of the defendant thereunder were deemed to be fully discharged, and that in any decree of divorce entered in such New York court she would not ask for an allowance of alimony in any amount exceeding $1,200.

At the time such agreement was executed each of them had been advised by reputable counsel to the effect and each evidently believed that such agreement when executed would be legal and binding.

After the execution of such agreement and on August 20, 1941, the plaintiff filed suit for divorce in the Supreme Court of Kings county, New York, on the ground of adultery. The defendant, by his attorney, pursuant to such agreement, entered his general appearance. On October 23, 1941, in such suit the New York court entered an interlocutory decree of divorce in favor of plaintiff because of the adultery of the defendant. The only statement in such decree with reference to property settlement or payment of any money was: "Ordered . . . that defendant pay to plaintiff the sum of $1,200 in full settlement of all alimony." On January 31, 1942, an order was entered by the New York court making such interlocutory decree final.

After the entry of such interlocutory decree the plaintiff was paid all moneys due her under the property settlement agreement.

At the time of the entry of the divorce decree the plaintiff was apparently in good health and was earning her own livelihood. Thereafter the plaintiff became ill and in 1944 became practically blind and in destitute circumstances, and an object of charity.

In July 1945, plaintiff filed proceedings in such New York court to modify such decree of divorce, in which proceeding the defendant entered his special appearance, and under such special appearance his counsel contended before the New York court that the decree of divorce fixing total alimony of $1,200 was final and could not be changed or modified by the court.

On motion of plaintiff such special appearance was dismissed and defendant was then ordered by such New York court to appear generally if he be so advised, which he did not do. Thereupon defendant appealed to the Appellate Division of the New York court for leave to appeal to the court of appeals from the entry of the order dismissing his special appearance, and his motion for leave to appeal was denied.

Thereafter defendant filed an action in the United States District Court for the Eastern District of New York, petitioning for a temporary injunction to restrain plaintiff upon making application in the Supreme Court of Kings county for an order to modify the decree of divorce. Thereafter the United States District Court denied defendant's motion for ...

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