APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of De Kalb
County; the Hon. CASSIUS POUST, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 18, 1958.
This court has allowed plaintiff's petition for leave to appeal from a judgment of the Appellate Court, affirming a decree entered by the circuit court of DeKalb County, awarding plaintiff, Betty Adele Wright Stevens, a divorce from defendant, Chester A. Stevens, and disposing of certain real estate to which plaintiff had exclusive title.
The essential issues are first, whether the Appellate Court erred in concluding that a freehold was involved, and in reviewing the cause without determining the freehold issue; and, secondly, whether the particular property disposition was in accordance with the provisions of the Divorce Act.
The operative facts pertaining to those issues are that on May 16, 1956, plaintiff, Betty Adele Wright Stevens, filed suit for divorce from defendant, Chester A. Stevens, on the grounds of extreme and repeated cruelty. Defendant denied in general plaintiff's allegations, and filed a counterclaim for separate maintenance, charging adultery, and praying for custody of the children. The jury, impanelled at defendant's request, returned a verdict finding that defendant was guilty of cruelty as charged, and that plaintiff was not guilty of adultery; and the court took under advisement plaintiff's motion for judgment on the verdict, made orally immediately after the verdict, and again, in writing, on September 28, 1956. Subsequently, in chambers, the court indicated that it intended to order that plaintiff's Glencoe property, in which the court found each party had $6,500 invested, be sold to pay the debts of both parties without reference to whether the indebtedness was incurred before or after suit was filed. Plaintiff then moved for a hearing to make a matter of record her exclusive title to the Glencoe property and the facts supporting her claim to retain it.
At the hearing thereon, on October 19, 1956, plaintiff testified that title was put in her name alone, since she put into the marriage approximately $48,000 from her inheritance, which defendant had promised but failed to repay. She itemized the stocks and bonds cashed in that connection, and also testified that she had borrowed, at defendant's request, some $1,600 from the DeKalb Trust and Saving Bank, using her own stock as collateral, which sum was still owing.
Evidence relating to the financial status of defendant included the sworn statement of his employer that his salary was $795 per month, and his earnings the preceding year were $8,430; defendant's testimony that his take-home pay was $600 a month, and that he owned no property; testimony that defendant had a personal indebtedness of over $2,000, most of which was incurred after the service of the summons in this cause, and a total indebtedness of $5,571.75; and that plaintiff's bills, including those for moving and storage, totaled $992.65.
The decree was entered several months later, on December 21, 1956, as originally contemplated. It granted plaintiff a divorce from defendant; awarded her custody of the children, subject to defendant's visitation rights; found the parties to be owners, with equal equities, of the Glencoe property; ordered its sale and an equal division of the net proceeds after the payment of the mortgage and the total indebtedness of both parties, including attorney fees; and ordered defendant to pay $75 per month for each of the three children and $100 a month for plaintiff.
After plaintiff perfected her appeal, the property was sold, pursuant to the decree and stipulation of the parties, for $38,500. The balance of the proceeds, amounting to some $16,198, after payment of the mortgage, was delivered to the clerk of the court, who still retains possession thereof.
Plaintiff appealed only from those parts of the decree which deal with the property rights of the parties, including primarily the sale and distribution of the proceeds of the sale of her real estate to pay debts and attorney's fees, and from the alimony provisions. She contends that the chancellor exceeded his authority under the Divorce Act by ordering the sale of property belonging to the party granted the divorce, and the payment of creditors' claims and attorneys' fees from the proceeds of the sale.
Defendant, however, argues in his brief, which plaintiff moved the court to disregard since it was filed long after the due date, that plaintiff had released all errors relating to the property disposition by agreeing to the sale; that since a freehold was involved, plaintiff, by appealing to the Appellate Court, waived her right to object to errors relating to the freehold; and that defendant should be entitled to amend his complaint to claim rights to plaintiff's property as supported by the record.
In an opinion filed September 9, 1957, the Appellate Court held that there was no waiver of errors by plaintiff, since the sale was pursuant to a court decree and the proceeds were held by the clerk of the court; that inasmuch as a freehold was involved, the court lacked jurisdiction on all assignments of error directed to that issue; and that since no motion was made to transfer the cause, the court would affirm the decree, as it was not against the manifest weight of the evidence. The Appellate Court thereafter denied plaintiff's petition for rehearing, her motion to transfer the cause to the Supreme Court under section 86 of the Civil Practice Act, and her motion for a certificate of importance.
We have allowed plaintiff's petition for leave to appeal, and in reviewing the cause we will consider, first, whether the Appellate Court erred in affirming the trial court without considering the disposition of the Glencoe property on the ground that it involved a ...