Appeal from the Circuit Court of Williamson county; the Hon.
C.E. WRIGHT, Judge, presiding. Decree affirmed.
JUDGE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
The plaintiff, George P. Champion, filed his complaint in two counts, alleging that he is domiciled in Williamson County, Illinois, although physically absent therefrom by reason of his service in the U.S.A.F. Count I prayed for a declaratory judgment that a decree of divorce, entered in Mexico in favor of plaintiff, is valid. Count II, in the alternative, prayed for a divorce on the ground of desertion. Summons was served on defendant in Virginia.
No question of venue was raised by defendant. She filed a motion to dismiss Count I under Section 48 of the Practice Act [Ill. Rev. Stats. ch. 110] on the ground this suit is barred by a prior judgment. The motion asserted that a decree was entered in Virginia in which this defendant was granted Separate Maintenance, and in which the validity of the Mexican decree was an issue, and that decree had been held void.
Defendant also moved to dismiss Count II on the ground that it was not filed in compliance with the Illinois Divorce Act [Ill. Rev. Stats. ch. 40], the suit had not been begun by praecipe for summons in divorce, and no order had been obtained permitting the filing of the complaint before 60 days. The motions were sustained as to both counts, the suit dismissed, and plaintiff perfected this appeal; defendant cross-appealed on a question of attorney's fees.
It is not disputed that the parties in this suit had some litigation in Virginia involving the validity of a decree for divorce which plaintiff had obtained in Mexico. The jurisdiction of the Virginia court over the parties and the subject matter is not questioned. Therefore, it is undisputed that the decree of the Virginia court is entitled to full faith and credit in Illinois, to the same extent as if the litigation had occurred in this state. However, plaintiff contends the Virginia court held the Mexican decree is void only in Virginia, leaving open the same question in Illinois.
Attached to the complaint and the motion in this Illinois case were the various pleadings and orders entered in the courts of Mexico and Virginia, and their correctness is not questioned; hence, there is no dispute of fact presented to this court. The only question is whether the legal effect of the prior proceedings justified the decree of dismissal from which this appeal is taken.
The Virginia decree contained the following, in which we place in italics the salient portions forming the basis of argument. The Virginia court found:
"(4) That the complaint, Helen J. Champion, defendant in the Mexican divorce suit, did not submit to the jurisdiction of the Mexican court and the jurisdictional fact and bona fides of the domicile in Mexico claimed by George P. Champion are therefore in question."
"(5) That considering the circumstances of George P. Champion's presence in Mexico and all the facts of evidential value bearing on the question of domicile, the court is of the opinion that George P. Champion failed to establish the domiciliary residence in such federal district of Mexico necessary to vest jurisdiction in the Mexican court to decree a severance of the bonds of matrimony existing between the parties or to award custody of the infant child to the said George P. Champion."
"(6) That the court is of the opinion that the decree of the 10th District Court (Federal District) in Mexico City, Mexico, is not entitled, under the rules of international comity, to recognition as a valid decree in the State of Virginia."
In this court, the briefs contain discussion of the law of comity, and plaintiff also asserts the doctrine of "divisible divorce," in addition to his contention that the Virginia decree found the Mexican divorce void only in Virginia. When a prior judgment is pleaded in bar of an action, the rule is as follows:
"The general rule is that, on the principle of res judicata, a judgment rendered by a court having jurisdiction of the parties and subject matter is conclusive and indisputable evidence as to all facts or questions in issue in the action and actually determined therein, when the same fact or question is again put in issue between the same parties or their privies, even though the subsequent proceedings are on a different cause of action." 23 I.L.P. Judgments, Sec. 377; City of Elmhurst v. Kegerris, 392 Ill. 195, 64 N.E.2d 450; Hoffman v. Hoffman, 330 Ill. 413; O'Brien v. O'Brien, 311 Ill. App. 435; 30 Am. Jur., Judgments, Sec. 324, 371, 375, 376.
The scope of the prior adjudication is determined from a consideration of the judgment actually entered with respect to the issues presented for decision rather than from any opinion rendered. Adams v. Pearson, 411 Ill. 431, 104 N.E.2d 267. The court looks to the proceedings in the earlier case to ascertain what the issues were and how they were decided. 23 I.L.P. Judgments, Section 382; Katz v. Berkos, 316 Ill. App. 569, 45 N.E.2d 566. Accordingly, we have quoted portions of the Virginia decree and now refer to the pleadings.
The complaint filed in Virginia was designated "Complaint in the Circuit Court of Arlington County, Virginia, for Separate Maintenance." The defendant there (plaintiff here) filed a "Special Plea in Bar of Complaint for Separate Maintenance," in which he says he is not the husband of complainant by reason of the decree in Mexico. Thereafter, there was filed an "Amended Complaint for Separate Maintenance," in which it is alleged among other things that the Mexican decree is null and void in the State of Virginia and also asserted "that the complainant is still lawfully married to, and the wife of, the defendant and that, as his wife, she is entitled to ...