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Mcdonald v. Neale

APRIL 30, 1962.

EUGENE F. MCDONALD, JR., PLAINTIFF,

v.

INEZ RIDDLE MCDONALD NEALE, DEFENDANT. INEZ RIDDLE MCDONALD NEALE, PETITIONER-APPELLANT,

v.

EUGENE M. KINNEY AND EDWARD MCCAUSLAND, CO-EXECUTORS OF THE WILL OF EUGENE F. MCDONALD, JR., DECEASED, RESPONDENT-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. THADDEUS V. ADESKO, Judge, presiding. Affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This action was commenced on December 5, 1958, by Inez Riddle McDonald Neale, to set aside a divorce decree entered on September 23, 1947, and the stipulated property settlement incorporated therein. At the close of petitioner's evidence the trial court dismissed her claim for want of equity, and this appeal followed.

Petitioner and respondent, Eugene F. McDonald, Jr., were married on July 16, 1931. On August 6, 1947, respondent *fn1 instituted divorce proceedings on the grounds of desertion. Upon being served with summons petitioner engaged an attorney, and on September 19, 1947, the matter was heard by agreement of the parties "on complaint and answer as in cases of default." The decree of divorce awarded respondent custody of their two children (a daughter then ten and a son then five), subject to rights of visitation by petitioner. The decree also approved the written agreement by which the parties settled their property rights. According to the agreement petitioner received the following: $125,000 in lieu of alimony, support, dower, and inheritance; $49,742 (or $34 per share) as consideration for assigning to respondent her title to 1463 shares of capital stock of Seneca Securities Corporation, a Delaware Corporation which controlled the Zenith Radio Corporation; $10,000 as consideration for her patent rights to an invention developed by respondent; $5,000 as consideration for the transfer to respondent of petitioner's interest in a residence, barn and other buildings known as the "McDonald Residence" on Mackinac Island, Michigan, and for the assignment of her interest in the furniture, silverware, linens and other personal property in that residence; and 1,000 shares of the capital stock of Zenith Radio Corporation, which, according to the agreement, completed a previous gift of 1,100 shares, not theretofore fully delivered by respondent.

Petitioner founds her right to recover upon the following propositions: first, that the decree of divorce is void on its face; second, that by virtue of § 72 of the Civil Practice Act [Ill Rev Stats c 110, § 72 (1957)] the decree should be set aside on the grounds of fraud, duress and mental incapacity; and finally, that the property settlement, aside from the validity of the divorce decree, should be set aside on the grounds of fraud, duress and mental incapacity. We will discuss these alternative contentions in the order mentioned.

Petitioner argues that the decree is void because the evidence in the divorce proceedings plainly reveals insufficient grounds for divorce under the Illinois statute, and that the fatal defect can be observed on the face of the decree since it was parenthetically stated therein, "a certificate of which evidence having been duly signed and sealed is filed herein and made a part hereof."

[1-3] It has long been the law of this state that a void judgment may be set aside at any time by motion or petition. [Hustana v. Hustana, 22 Ill. App.2d 59, 64, 159 N.E.2d 265; Ill Rev Stats c 110, § 72(7) (1961)]. The error importing voidness, however, must be apparent from an examination of the record, as the court cannot review the evidence. (Evans v. Clement, 14 Ill. 208; Cullen v. Stevens, 389 Ill. 35, 58 N.E.2d 456; Collins v. Collins, 14 Ill.2d 178, 151 N.E.2d 813.) The record, in a chancery case, consists of the pleadings, process and decree (Collins v. Collins, 14 Ill.2d 178, 183, 151 N.E.2d 813). Although the evidence in the instant case was incorporated into the decree by reference and may thus be said to have become a part of the record, its character as evidence was not thereby changed and it cannot therefore be reviewed in this type of proceeding. The rule is founded upon sound considerations: "a re-examination of the evidence upon collateral attack would result in far-reaching consequences, involving, among other things, the disturbing of titles long considered settled as well as weakening the jurisdictional presumption that has always obtained." Cullen v. Stevens, 389 Ill. 35, 42, 58 N.E.2d 456.

It is clear from the record in the divorce proceedings that petitioner was personally served, that she stipulated to have the cause heard as a default matter, and that she was represented by her counsel at the hearing. The decree found, as alleged in the complaint, that ". . . on, to-wit, June 1, 1945, the defendant wilfully deserted and absented herself from the plaintiff without any reasonable cause and without fault on his part, and has continued so to do without interruption for more than two (2) years since said date to the present time and the filing of the complaint herein." Petitioner would have us declare that the trial judge found that the statutory grounds of desertion and entered the decree on the basis of mistaken judgment. This we cannot do. (Van Dam v. Van Dam, 21 Ill.2d 212, 171 N.E.2d 594.) Petitioner's right to seek review of the transcript of evidence, on appeal or by writ of error, has long since passed. The record does not show on its face that the divorce decree was erroneous.

The principal question remaining concerns petitioner's allegations that she was mentally incompetent at the time of the execution of the property agreement and the entry of the divorce decree, that the settlement and decree were obtained by means of fraud and duress, and that she brought the instant suit within the allowable time after the fraud and duress came to an end. After hearing considerable testimony consuming about 5,000 pages of transcript, and after examining numerous exhibits and depositions the trial judge found that the evidence was not sufficient to justify vacating the decree upon these grounds.

[4-6] At the outset petitioner contends that the trial judge erred in failing to consider the evidence in the proper manner at the close of petitioner's case, i.e., in the light most favorable to petitioner, together with all reasonable inferences which can be drawn from the evidence. So considered, argues petitioner, the evidence clearly reveals a prima facie case of fraud, duress and mental incapacity. It is clear from the language of the statute that petitioner misinterprets the role of the trial judge in ruling on a motion presented under § 64(5) of the Civil Practice Act [Ill Rev Stats c 110, § 64(5) (1961)]. That section, as amended in 1955, provides that in equity and non-jury law cases the defendant may move for a finding in its favor at the close of plaintiff's case, and that "in ruling on the motion the court shall weigh the evidence." This change in the Civil Practice Act, expressly for the purpose of expediting trials, permits the trial judge, at the close of plaintiff's case, to evaluate the evidence and determine the credibility of witnesses. Under such circumstances the trial judge must decide whether the inferences and conclusions adduced by him from the evidence result in a prima facie case before ruling on the motion. Our view of the trial judge's role here is substantiated not only by the plain language of the section and the historical notes pertaining thereto, but also by the view uniformly taken of the comparable provision found in Federal Rule 41(b) [Fed R Civ P 41(b)]. *fn2 (Allred v. Sasser, 7 Cir, 170 F.2d 233; Penn-Texas Corp. v. Morse, 7 Cir, 242 F.2d 243, 246; Chicago & Northwestern Ry. Co. v. Froeling Supply Co., 7 Cir, 179 F.2d 133, 135.) The trial judge was thus bound to give the evidence such weight as he believed it entitled to receive. We recognize, however, that great caution should be exercised by a trial judge before determining a lawsuit after having heard only one side of the case.

The petition in the instant case was filed more than eleven years after the entry of the divorce decree. At no time during that period did petitioner seek relief by way of a bill of review or writ of error coram nobis. Both of these procedural methods, upon which the period of limitation was one year, were superseded by the unified procedure provided in § 72 of the Civil Practice Act which became effective on January 1, 1956. The part of that section pertinent here reads:

(3) The petition must be filed not later than 2 years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.

The instant petition was filed neither within the limitation period provided under the former practice nor within that afforded by § 72(3). Petitioner claims that the limitation period was tolled because of the continuing duress exerted over her by respondent, which did not terminate until May of 1958, when the respondent died. To sustain this position the petitioner offered testimony to show that she was seriously ill, with resulting weakness and nervousness, during the summer of 1947, and that consequently she was unable to comprehend or transact any important business matters at the time the property settlement was negotiated and the divorce obtained. Further testimony was introduced to show that respondent was an unusually strong and domineering person, that he drank excessively during their marriage and frequently discharged firearms in a reckless manner, that he intimidated petitioner and her parents and caused them to fear him greatly, and that his duress continued through all the years that followed until respondent died, "because of the great fear that she had of severe physical injury or even death at his hands."

The evidence reveals that the petitioner was never declared or adjudicated insane; that shortly before the divorce proceedings petitioner and a friend, in anticipation of the money from the property settlement, made plans to enter a photography business in Jacksonville, Florida, and after the entry of the decree consummated those plans and actively engaged in said business; and that petitioner subsequently worked as a private secretary for General Omar Bradley who testified that petitioner was "perfectly capable" and not insane during the time she worked for him from November, 1954 to March, 1957. There was no showing of duress stemming from respondent's drinking and use of firearms after the termination of the marriage. During the eleven years after the entry of the divorce decree petitioner and her parents carried on extensive correspondence with the respondent, and ...


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