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Ludwig v. Ludwig

OPINION FILED SEPTEMBER 17, 1952.

ROBERT R. LUDWIG, APPELLEE,

v.

BERNICE LUDWIG, APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. HARRY C. DANIELS, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Defendant, Bernice Ludwig, has prosecuted this appeal from a decree entered by the circuit court of Du Page County awarding plaintiff, Robert R. Ludwig, a divorce from defendant on the grounds of desertion, and vesting plaintiff with full title to certain real property formerly held by the parties in joint tenancy.

The propriety of the decree of the circuit court depends primarily upon the validity and legal effect of a prior divorce decree entered by a Nevada court granting defendant a divorce from plaintiff on the grounds of mental cruelty, and upon the nature of defendant's interest in the property held in joint tenancy.

From the record it appears that plaintiff and defendant were married in Chicago on February 14, 1932. In 1935 plaintiff, with his own funds acquired before marriage, purchased their residence property situated in Wheaton, Du Page County, Illinois. Although title to the property was taken in the names of plaintiff and defendant jointly, the attorney explained to defendant at the time of the conveyance that title was taken in that manner for convenience so as to avoid the expense of probate in case either party died, and to insure defendant survivorship rights if plaintiff died during their marriage.

Despite the fact that plaintiff objected to defendant's working, since he earned a good income which was made available to defendant, she substituted as secretary for Earle B. Tilton during parts of the years 1937, 1938 and 1939. In July, 1939, defendant first informed plaintiff that she wanted a divorce. Plaintiff endeavored to dissuade her but she was insistent, and after repeated conversations she persuaded him to see her attorney in Chicago, who, in turn, unavailingly urged plaintiff to sign certain papers with reference to the divorce.

According to the uncontroverted facts, corroborated by the testimony of defendant's parents who lived in the vicinity and saw the parties frequently, plaintiff treated defendant very well, and provided most generously for her. However, on August 26, 1939, without any provocation, defendant left plaintiff and went to live in Chicago.

According to her testimony, defendant went to Nevada to get her divorce early in November, 1939, and a divorce decree on the grounds of mental cruelty was entered by the Nevada court on February 16, 1940. Two days later, however, defendant was seen in Chicago, and during the month of February, 1940, she wrote her mother from Chicago that she had returned to the city. Defendant remained there until March, 1941, when she went to Nevada to marry Earle B. Tilton immediately after he had secured his Nevada divorce. She wrote her folks that she had "gone through a marriage ceremony." Defendant and Tilton returned to Illinois directly, and then moved to Wisconsin where they are presently residing.

In May, 1941, defendant's parents moved in with their son-in-law, plaintiff herein, and they have made their home together since that time. Plaintiff has at all times paid the taxes and all expenses incidental to the maintenance of the controverted property.

In the fall of 1947, Judge Samuel Perry, who was then counsel for plaintiff, endeavored to get a quitclaim deed from defendant, since her name appeared of record as a joint tenant. Judge Perry's testimony reveals a visit with Mrs. Tilton in her home in Milwaukee, Wisconsin. In an extended interview, defendant unqualifiedly disclaimed any title or interest in the property presently in dispute. She said, "I took what I wanted. By agreement with him I went to the safety vault and I took what I thought was mine and I have never heard from him since, and this is the first I heard of any property and I have been divorced and I am not interested there any more." However, she suggested that if her signature was necessary on any papers plaintiff could make her a monetary offer, but she refused to sign anything.

In June, 1950, plaintiff instituted this proceeding for divorce on the grounds of desertion, and requested the court to vest him with title to the controverted property. On the basis of substantially the foregoing evidence, the circuit court entered a decree granting plaintiff the divorce and directing defendant to convey her interest in the premises to plaintiff.

Inasmuch as title is directly put in issue a freehold is involved (Holmstedt v. Holmstedt, 383 Ill. 290,) and this court has proper jurisdiction of the appeal. In determining whether the circuit court erred in entering the aforementioned decree we shall consider first whether this divorce proceeding was barred by the prior Nevada decree.

The principles underlying the validity of out-of-State divorce decrees have recently been reviewed and promulgated anew by both this court and the Supreme Court of the United States. Williams v. North Carolina, 325 U.S. 248; Esenwein v. Pennsylvania, 325 U.S. 279; Atkins v. Atkins, 393 Ill. 202.

According to our determinations, which are clearly consistent with those of the Supreme Court of the United States, the introduction of an out-of-State divorce decree constitutes prima facie evidence of its validity. (Esenwein v. Pennsylvania; Atkins v. Atkins.) However, if the litigant who would escape the operation of the out-of-State decree sustains the burden of impeaching the jurisdictional prerequisite of bona fide domicile, then the decree will be deemed neither valid nor entitled to full faith and credit. Esenwein v. Pennsylvania; Atkins v. Atkins.

In the Atkins case, this court affirmed its former opinion on this issue in the same case, 386 Ill. 345,) in the light of the decisions of the Supreme Court of the United States, which were interpreted as holding that the power of a court to grant a divorce is founded on domicile, and that the full-faith-and-credit clause operates only with respect to judgments rendered by a court whose jurisdiction, either as to subject matter or the person, is not impeached. With reference to the case before it the court stated at page 207: "It was, at least, impliedly held in our former opinion that the credit to be attached to the Nevada decree depended solely upon the fact of appellant's domicile in that State. * * *. It was held that since appellant was ...


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