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Anderson v. Anderson

FEBRUARY 7, 1955.




Appeal from the Circuit Court of Kane county; the Hon. CHARLES A. O'CONNOR, Judge, presiding. Order affirmed.


On June 8, 1951, a decree of divorce upon the grounds of desertion was entered herein on the complaint of Lillian R. Anderson, plaintiff-appellee, hereinafter referred to as the plaintiff, against Arthur R. Anderson, defendant-appellant, hereinafter referred to as the defendant. On March 13, 1953 the defendant filed a verified "petition in the nature of a writ of error, coram nobis, to vacate and set aside decree for divorce and for leave of defendant to file a counterclaim for divorce and for the care, custody, and control of minor child." The plaintiff filed a verified answer to that petition. On November 6, 1953, the defendant filed a verified "amended petition of defendant to vacate decree, etc." On January 8, 1954, after a hearing on the defendant's petition, as amended, and the answer, the trial court entered an order finding that the defendant had failed to sustain the petition and that it should be denied and, accordingly, denied and dismissed the defendant's petition. From that order the defendant has appealed.

The defendant's theory is that the plaintiff at the time of the decree, June 8, 1951, had not "resided in the State one whole year next before filing . . . her complaint" (ch. 40, Ill. Rev. Stats. 1953, par. 3 [Jones Ill. Stats. Ann. 109.170]), the proceedings were not "had in the County where the plaintiff or defendant resides" (ch. 40, Ill. Rev. Stats. 1953, par. 6 [Jones Ill. Stats. Ann. 109.173]), the court therefore had no jurisdiction, "fraud, perjury, and deceit" were committed by the plaintiff on the court and defendant, and "duress and undue influence" were perpetrated by the plaintiff on the defendant.

The original complaint of the plaintiff in the divorce case, filed June 8, 1951, the same date as the original hearing and decree, alleges, in effect, so far as material, that "she is an actual resident of the County of Kane and State of Illinois, and has been a resident of the State of Illinois for more than one year last past continuously and immediately preceding the filing of the complaint"; the plaintiff and defendant were married August 24, 1937; they have no children of their own but have one adopted child, a boy, born June 14, 1945, who is in the custody of the plaintiff; plaintiff has at all times conducted herself as a kind, true, faithful, and affectionate wife; defendant has, without any reasonable or just cause, on or about March 15, 1950, deserted and absented himself from the plaintiff and has persisted in such desertion until the present time; the parties have no property except household furniture and an automobile, title to both being in both names; defendant is a chaplain in the United States Navy, earning about $400 per month, and able to support the plaintiff and the child. The complaint prays for a divorce, the award of custody of the child to the plaintiff, support for the plaintiff and the child, solicitor's fees, costs, the award of the household furniture to the plaintiff, and general relief.

On the same date, the defendant's appearance was filed, signed by him, waiving service of summons, consenting to the jurisdiction of the court, and consenting to an immediate hearing at any time without notice to him. The appearance was acknowledged and notarized the same date, reciting that the defendant had that day in person appeared before the notary and acknowledged that he signed the appearance as his free and voluntary act for the uses and purposes therein set forth.

On the same date, the defendant's answer was filed, signed by him, admitting the allegations of the complaint as to the parties' marriage and as to the adopted child, and denying all other allegations of the complaint, denying the plaintiff is entitled to the relief prayed, and praying that the complaint be dismissed. No attorney's name appears thereon as attorney for the defendant.

The decree of divorce, so far as material, recites that the cause came on to be heard on the complaint, the answer, and appearance, and the evidence adduced, and finds that the court "has jurisdiction of both the subject matter and of the parties to this cause, and that the equities of said cause are with the plaintiff"; that "the plaintiff and the defendant are residents of the City of Elgin, County of Kane, and State of Illinois, and have been such residents for more than one year prior to the filing of the complaint"; the parties were married (as alleged in the complaint); they have one adopted child, etc. (as alleged in the complaint); the plaintiff has at all times conducted herself as a kind, etc., wife (as alleged in the complaint); the defendant, without any reasonable or just cause therefor, did on or about March 15, 1950 desert and absent himself from the plaintiff, etc. (as alleged in the complaint); that a property settlement has been entered into between the parties, which is satisfactory to each, is reasonable, and is approved; the defendant is a chaplain, etc., has certain earnings, is able to support plaintiff and the child, and that the child is physically incapacitated and requires medical attention, etc.; and the plaintiff is a fit and proper person to have the custody of the child. The decree then divorces the parties; awards custody of the child to the plaintiff "with the right to the said defendant to see said child at all reasonable times and places"; orders the defendant to pay plaintiff $100 per month alimony for her support, and $125 per month child support, totaling $225; and orders the defendant to pay the plaintiff $150 for her attorney's fees, costs, and suit money.

The defendant's verified petition, filed March 13, 1953, in the nature of a writ of error, coram nobis, to vacate and set aside decree for divorce, etc., alleges, in effect, so far as material, that he is a Lt. Comdr., Chaplain Corps, United States Navy, stationed at U.S. Naval Station, Great Lakes, Illinois; a decree of divorce was entered June 8, 1951; that on March 15, 1950 and for over a period of a year the defendant and plaintiff lived and cohabited in Flushing, N.Y.; that he was never separated from her because of his fault at any time since marriage except on Navy duties and then for never more than 3 weeks' periods while at sea; he maintained an apartment for self and family at Hunter Gardens, Flushing, Long Island, N.Y., from January 1, 1950 to March 30, 1951; the plaintiff's only corroborating witness, Lillian Strohm, her mother, lived with defendant and plaintiff at that apartment in the fall of 1950 for several weeks; he called at the office of the plaintiff's attorney, in Elgin, upon the plaintiff's invitation, signed some papers, but did not understand that one was an appearance and waiver of service of summons and consent to the immediate hearing of said cause, and he was never sworn by any notary on the acknowledgment attached to the appearance; he also discovered subsequently that he had signed an answer which was filed June 8, 1951; he never at any time saw a copy of the complaint and did not know the allegations thereof until they were examined by his attorneys; when he went to the plaintiff's attorney's office he was unaware of plaintiff's plans, did not question same until they entered the office, defendant then realized he was "tricked" into going there, then realized for the first time that plaintiff had in mind divorce proceedings, his grief and shock so overwhelmed him he did not have free use of his faculties, he felt he did not care what happened, did not understand what was happening; and if he executed any documents, he did not realize the significance of same; plaintiff had certain personal property of defendant and he had gone to Elgin to obtain it and make arrangements for a new apartment near Chicago when he discovered plaintiff's foregoing plans; he can corroborate his allegations by disinterested witnesses and documentary evidence to prove "there was never asserted any statutory grounds for desertion." The petition then prays the decree be vacated, the custody of the child be given defendant, leave be given him to counterclaim for divorce, plaintiff be required to answer his counterclaim, the cause be set for immediate hearing, and for general relief.

The plaintiff's verified answer to defendant's petition to vacate alleges, in effect, in substance, so far as material, that defendant is a chaplain, U.S. Navy; admits the decree; admits she testified at the divorce hearing that she had resided in Elgin, Illinois all her life and says such statement and all her other testimony is true; says defendant was guilty of cruel and unhuman conduct toward her but such was not mentioned in the proceedings because defendant is a minister and she did not wish to harm him; admits that during times when defendant was stationed outside of Illinois he maintained accommodations convenient to him in his employment; denies defendant's allegations as to his execution of the appearance, etc., and says any documents signed by him were read by and thoroughly understood by him; says the answer was read and understood by defendant at the time it was signed; denies defendant's allegations as to not seeing a copy of the complaint, and says a copy was submitted to him before the filing of the case; denies defendant's allegations as to the circumstances of his visiting her attorney's office, etc., and says she had told defendant she would not submit to indignities and cruelty suffered, insisted upon a divorce and custody of the child, negotiations went on for many weeks before filing the case, on his persuasion she agreed not to mention cruelty and other grounds which defendant said would cause him to lose his position in the Navy and ministry, defendant's primary concern was as to the effect of a divorce on his position and profession, and all documents he signed were read by, explained to, and fully understood by him; says there had been discord for years and divorce had been discussed many times; denies defendant can corroborate his allegations; says the real purpose of defendant's petition is to secure a reduction in support payments so he may marry someone to whom plaintiff is informed he is engaged; says the amount of support was the result of conferences and agreement with defendant; refers to the sufficiency thereof, the care of the child, and asks the petition be dismissed.

The defendant's amended petition to vacate decree, etc., filed November 6, 1953, alleges, in substance, that the plaintiff did not have a legal residence in Kane county, Illinois, in accordance with the statutes, the court did not have jurisdiction of the parties, and the plaintiff testified falsely as to the sworn allegations of the complaint.

At the original divorce hearing, the plaintiff testified, substantially, that she resided at 164 Harding street, Elgin, Kane county, Illinois, had resided in Elgin all her life; was married to defendant, they had one adopted child, afflicted presently with polio; did not get along well with defendant, they were not then living together; defendant deserted her March 15, 1950, they had not lived together as husband and wife since then, such was not because of her conduct, she's tried to make a happy home, but it was not, through no fault of hers; defendant is a chaplain in the Navy, referred to his earnings, they had discussed a property settlement and such had been arranged to her satisfaction; defendant had agreed on certain support for her and the child, and she requests custody. The plaintiff's mother, Lillian R. Strohm, also testified, substantially, that she has frequently visited in plaintiff and defendant's home, observed them, they have not to her knowledge lived together as husband and wife since March 15, 1950, and defendant's treatment of plaintiff was not good. Defendant was evidently not personally present at the hearing, nor was there any attorney for him, there was no cross-examination of plaintiff's witnesses, and no evidence presented for defendant.

At the hearing on the defendant's petition, etc., to vacate decree, etc., the defendant's evidence consisted of the defendant's testimony by deposition; the plaintiff's evidence was the testimony of Charles Lowry, county clerk of Kane county, Illinois, certain files and records of the county court of that county in the adoption case relating to plaintiff and defendant's child, and certain files and records of the clerk as to the voter's registrations of plaintiff and defendant. Plaintiff did not testify at the hearing.

The defendant's deposition on behalf of his verified petition, as amended, is lengthy and we'll summarize only certain essentials thereof. He says he is a chaplain, U.S. Navy, Great Lakes, Illinois, was so on June 8, 1951, being then attached to the same command though in a different billet; there was never any separation between plaintiff and defendant, except as defendant's duties at sea required; on March 15, 1950 he was at sea, plaintiff was in their apartment at Flushing, N.Y., he arrived at Brooklyn March 22, 1950, and he remained with her continuously thereafter until March 30, 1951, when his duties took him to Parris Island, S.C. A week or two after April 1, 1951 he obtained an apartment at Parris Island, he telephoned plaintiff in New York, she said she would not come down, not live with him, and requested transportation arrangements for her and the child to Elgin, Illinois; she was in New York until April 27, when she, the child, and the household effects were removed to 164 Harding street, Elgin, Illinois, an apartment she rented. He next saw her there May 3 or 4, 1951, he then being en route in his duties to Great Lakes, Illinois, he asked what was wrong, she gave no answer, she refused to let him stay at the apartment, he stayed at the YMCA, Elgin. The first conversation about divorce was early in May 1951, when she "tricked" him into coming to her Elgin attorney's office, defendant having on an off-duty day been riding with plaintiff and the child in their car, she driving, she having said she had some business to transact downtown and had to obtain a city license sticker for the car, and she picked up her mother on the way downtown. They all went on the elevator of a building up to her attorney's office, he did not leave the elevator and went back down again, she accompanying him; her attorney and mother conversed with him on the first floor of the building, the attorney saying "It certainly won't hurt, come up to my office and talk things over," so defendant went up "to see what was going on." It was there made known to him she was suing him for divorce, he protested about property settlements, support, and maintenance, he thought she was mentally unstable, he was heartbroken and crushed, he said he did not want a divorce, he plead with her, she was adamant. He demanded certain life insurance policies on his life and some U.S. war bonds her attorney evidently had at the office; the conference there was long, he protested against divorce, he was without funds, he needed a car, he feared coming into court, he felt divorce would damage his position as a chaplain and minister, he was emotionally ill, frightened, crushed. He agreed to let them sue him for divorce and to make some financial settlement. No papers were submitted to him to sign on that day. He saw her about every week thereafter, asked her to live with him, she declined. A week after the first meeting at her attorney's office she and he again went to the attorney's office, a "paper" was then signed, there was further discussion about support payments, a "financial agreement" was signed then or at the first meeting at the attorney's office. He was not at the attorney's office June 8, 1951, he had signed the appearance, he had signed the answer, he read the documents, they did not mean too much to him, he did not see how a court could grant a divorce since she had no justifiable grounds, and he denied "the allegations." He signed the appearance under pressure of grief, bewilderment, fear of his career being at stake, and thought she was mentally and emotionally ill, and hoped they could re-establish their home, by his not appearing in court and not making a battle of great proportions. He knew the documents he executed were to be used by plaintiff in furtherance of her proposed divorce action. During one of the conferences at her attorney's office defendant asked that the "petition be placed in his name rather than hers." After a financial agreement was executed by him he obtained back his insurance policies shortly before June 8, 1951. He learned a divorce had been granted her the next day after it occurred, by a telephone talk with plaintiff. After the divorce he received a copy of "her petition and a copy of the Court decree," he was shocked and incensed, her statements were false, her mother's statements as to desertion were false. He is and has been paying plaintiff $225 per month, $125 for child support, $100 for her support. Plaintiff now is at Emory University, Georgia, with the child. Defendant testified extensively about plaintiff's alleged conduct while married, plaintiff's alleged cruelty on several occasions, and plaintiff's alleged misconduct on several occasions. After they were married in 1937, they lived for awhile with her parents, evidently in Elgin, Illinois, then at Wheaton, Illinois, while he and she completed college, then with her parents in Elgin, then Dallas, Texas while he was at Theological Seminary until 1940, then at another seminary in Chicago, then in May 1943 he entered the Navy, and thereafter he was at various places as duties required, either in this country or aboard ship. The child stayed with him a few days at Christmas 1952. Defendant is now engaged to marry a naval nurse. He was to leave Great Lakes July 3, 1953 for sea duty. While defendant's petition was pending he telephoned plaintiff and told her unless she accepted $99.50 a month he might have to resign from the Navy and possibly she might not then receive anything. After the divorce plaintiff gave defendant a statement of some kind for Navy purposes so that anything in the divorce case would not jeopardize his position, which statement defendant has and has not yet had to use.

On behalf of the plaintiff at the hearing on defendant's petition the county clerk identified the plaintiff and defendant's verified petition of July 3, 1947 in the county court of Kane county for adoption of their child, which alleged among other things that plaintiff and defendant were residents of Kane county, Illinois, at 386 East Chicago street, Elgin; and also identified plaintiff's and defendant's voter's registration cards, which indicate defendant's verified registration as of July 8, 1950 at 386 East Chicago, Elgin, Illinois, the term of residence stated being 1943 to date, and that at the time of the next election he would have resided in Illinois one year and the county 90 days, etc., and which ...

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