Appeal by petitioner from the Circuit Court of Bureau county;
the Hon. LOUIS A. ZEARING, Judge, presiding. Heard in this court
at the February term, 1954. Reversed and remanded. Opinion filed
May 17, 1954. Rehearing denied June 15, 1954. Released for
publication June 15, 1954.
MR. JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 15, 1954.
Samuel Potter and June A. Potter, husband and wife, together with their infant daughter, Sandra Ellen Potter, resided in the State of Ohio. On February 27, 1952, Samuel Potter went to a lawyer in Middletown, Ohio, and employed him to file a suit for a divorce against his wife, June A. Potter. The record shows the lawyer's name was Harry D. Becker of Dayton, Ohio and that Potter paid him the sum of $350 to start the suit. A complaint for divorce was prepared and it was sworn to by Samuel James Potter on February 27, 1952.
In his complaint for a divorce, after the allegations of the marriage, etc., it then follows: "The defendant has, in total disregard of her marital duties and in violation of her vows, been guilty of extreme cruelty towards this plaintiff by running around with a man, other than her husband, and whose name will be divulged at the time of the trial, against the wishes of this plaintiff, causing said plaintiff much embarrassment because their friends had knowledge of this dereliction of duty. Further, plaintiff states that said defendant argued constantly with this plaintiff, assaulted him and has placed him in a highly nervous condition.
"Plaintiff avers that the defendant has been guilty of gross neglect of duty toward him, their home and their said child; that she was a very poor housekeeper and neglectful wife; that he was forced to limit charge accounts because of her dissipations; that she ran through their savings and has forced him into debt; that she has refused on many occasions to change the baby from the time plaintiff left until his return home to change said child; that she did not feed the child properly, and beat said child frequently.
"WHEREFORE, Plaintiff prays that he may be divorced from the said defendant, that he be granted the care, custody and control of said child, and such other and further relief to which he may be entitled, either in law or in equity."
The suit was filed on March 6, 1952, and summons issued, and June Allen Potter is alleged to be a minor and living at the home of one Margaret Hovel. Summons was served and returned on March 7, 1952. On June 16, 1952, June Allen Potter, by her guardian ad litem, filed her answer to the plaintiff's complaint in which she denied any misconduct on her part and filed a cross-petition in which she alleged neglect and desertion by the plaintiff, and in her petition she asked for the care and custody of their minor child, Sandra Ellen Potter.
A hearing was had upon the original complaint and cross-complaint for a divorce and on July 20, 1953, the court entered the following decree: "This day this cause came to be heard upon the petition of the plaintiff, the answer of the guardian ad litem appointed for said defendant, being a minor over the age of 14 years, the answer and cross petition of the defendant, and the evidence adduced in support thereof, this cause having been regularly assigned for trial. The court finds that service of summons has been made upon the defendant upon the plaintiff's petition and upon the plaintiff upon the cross petition and does hereby approve and confirm the same.
"The Court further finds that at the time of the trial the plaintiff failed to appear to offer evidence in support of his petition and the court therefore dismisses said petition. The court further finds that the allegations of the answer and cross petition are true.
"Upon consideration whereof, the court finds that the defendant at the time of the filing of her cross petition had been a resident of the State of Ohio for more than the year last past and that she was at said time a bona fide resident of the County of Butler, having resided continuously therein for over the past ninety (90) days. That the parties intermarried on 11th August, 1950 at Jeffersonville, Indiana and that one child, Sandra Ellen, age 2 years was born of said marriage.
"The Court finds that the plaintiff has been guilty of gross neglect of duty towards the defendant, as is alleged in the cross petition, and the defendant is entitled to the relief prayed for.
"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the marital relations heretofore existing between the parties be and the same are hereby dissolved and both parties released from all obligations of the same; that the defendant be and she is hereby granted an absolute divorce from the plaintiff.
"And the Court coming now to the matter of custody of the minor child, hereby awards the custody of the same to the defendant and orders that the plaintiff return the custody and control of the child to the defendant forthwith. It is also ordered by the Court that the plaintiff shall pay to the defendant for the support of the minor child the sum of $10.00 a week, the first payment due on Saturday, July 25th, 1953 and a like sum each and every Saturday thereafter until the further order of the Court." The record shows that notice of the hearing was served on the plaintiff's attorney, Harry D. Becker of Dayton, Ohio.
On August 1, 1953, the People ex rel. Sandra Ellen Potter, by June A. Potter, her mother, filed a petition for habeas corpus in the circuit court of Bureau county, Illinois, for the possession of Sandra Ellen Potter and alleged that Samuel Potter and Mary Hayden were illegally holding the possession of said child. With her complaint she filed a certified copy of the divorce proceedings in Ohio. A hearing was had on this petition and the court denied the writ and ...