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Van Dam v. Van Dam

MARCH 21, 1960.

JUEL N. VAN DAM, PLAINTIFF-APPELLEE,

v.

RAYMOND C. VAN DAM, DEFENDANT-APPELLANT.



Appeal from the City Court of Blue Island; the Hon. MAURICE SCHULTZ, Judge, presiding. Order reversed and cause remanded with directions.

JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 9, 1960.

This is an appeal from an order denying defendant's amended petition under Section 72 of the Civil Practice Act, [Ill. Rev Stats 1959, c 110, § 72], seeking to set aside a divorce decree obtained by plaintiff. The principal question is whether there was a proper basis for the court's order waiving the provisions of Sections 7b and 7c, Chapter 40, of the Illinois Revised Statutes, 1959, relating to the "cooling-off" period in divorce cases.

On August 9, 1958, plaintiff filed her praecipe for summons in a divorce suit. It was served August 10, 1958. On August 15, 1958, the following proceedings were had:

Motion for waiver of the 60-day "cooling-off" period provided by Ch. 40, Sec. 7(b), on the ground that plaintiff "fears" her husband is creating liabilities that may cause her irreparable injuries, and that it is necessary to establish as quickly as possible her lack of liability for any debts created by him.

An order was entered waiving compliance with Section 7(c).

An order was entered restraining defendant from purchasing, charging, or opening charge accounts, and that such injunctional order issue without notice and without bond.

The complaint was filed and concurrently an appearance was filed in the name of Raymond C. Van Dam, as defendant and "sel . . . as attorneys therein," signed by defendant.

A stipulation was filed, signed by plaintiff, by plaintiff's attorney, and by defendant pro se, in which it was agreed that plaintiff should have the household furnishings in their apartment and that ". . . this cause come on for hearing as in cases of default." It was further agreed that defendant should pay plaintiff the sum of $5000 in cash upon the entry of the decree in lieu of alimony.

The cause was brought to trial, witnesses were sworn and testified, and at the conclusion the court directed plaintiff's attorney to prepare the transcript and decree.

All the foregoing proceedings were had on August 15, 1958. On August 23, 1958, a report of proceedings was filed and a decree entered, allowing the divorce on the ground of adultery, giving plaintiff household furnishings, and ordering and decreeing that defendant should pay $5000 in lieu of alimony.

On October 14, 1958, notice was served of defendant's petition to set aside the decree. On October 17, 1958, the petition was filed pursuant to leave of court. A motion to strike this petition was allowed on January 23, 1959, and leave was given to file an amended petition. On February 21, 1959, the amended petition was filed. It alleged in substance that the decree was entered in violation of Ch. 40, Sec. 7c; that no notice was given to defendant of intention to apply for injunctive relief, and that the writ of injunction was not served on defendant. It denies charges of adultery, and it charges force, extortion and intimidation; that the affidavit relative to incurring liabilities was false; that it was also false in alleging that plaintiff was without funds; that plaintiff had personal property of the value of $150,000; that plaintiff continued to live with defendant after the divorce; that she concealed from him the fact that she was going through with the divorce; and that defendant did not know of the decree until August 29, 1958, when plaintiff moved the household furniture out of their apartment.

A motion to strike the amended petition was allowed on April 29, 1959, and an order was entered denying the petition, from ...


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