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Jones v. Jones

JANUARY 30, 1963.




Appeal from the Superior Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Affirmed in part, reversed in part, and cause remanded with directions.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT. A default divorce decree against the defendant was entered in this case after notice by publication. The prayer for alimony and for support of the two minor daughters of the parties was reserved until personal service was had on the defendant. Later he was personally served and a temporary order was entered for him to pay $50 a week for support of the children. He did not comply, was found guilty of contempt and was ordered confined to the County Jail.

The defendant appeals from the contempt finding, the commitment order and from the refusal of the court to vacate the divorce decree. The principal contentions are that the service obtained by publication was fraudulent, that the court did not have jurisdiction over him or the case, that the decree and all orders entered subsequent to it are void, and that the court erred in denying a motion for a change of venue.

The marital trouble of the Joneses has come to the attention of this court on other occasions. One of these was a divorce suit commenced by the present plaintiff in 1956 on the ground of cruelty. The defendant counterclaimed on the ground of desertion. The trial court dismissed both the complaint and countercomplaint for want of equity. The defendant appealed.

He had informed the trial court and in his appeal advised this court that he did not want a divorce. His objection to the dismissal of his counterclaim for want of equity was that it would be res judicata of the other relief prayed for in his complaint: custody of the children and certain alleged rights in the property of his wife. This court affirmed the dismissal of the complaint but reversed the dismissal of the counterclaim in order to preserve the defendant's right to prosecute his prayer for other relief. The cause was remanded with directions that the defendant be allowed to delete his prayer for divorce and that "the cause then proceed to hearing on such amended cross-complaint." Jones v. Jones, 26 Ill. App.2d 484, 168 N.E.2d 783 (1960). The mandate of this court was filed in 1960 but the defendant did not exercise the privilege granted him.

In the instant case the plaintiff's complaint charged the defendant with extreme and repeated cruelty and with having deserted her and their two daughters. The complaint described the defendant as a self-employed lawyer, possessing "various holdings of real estate held in his name or in various trusts . . ." and with income in excess of $15,000 a year.

On the date the plaintiff filed her complaint she also filed an affidavit asserting that upon diligent inquiry the defendant's place of residence could not be ascertained. The summons gave no address for service and the sheriff's return, of the same date, was that the defendant was not found. Notice of the suit was published and a copy of the publication notice was mailed to the last known address of the defendant as set forth in the affidavit of non-residence. The defendant neither appeared nor answered and a default was taken.

At the default hearing the plaintiff testified that her husband was not practicing his profession, that she had searched for but had not found him, that the address given in her affidavit was the last one he had used on his correspondence, that he no longer lived there and that he could not be traced through the post office.

The divorce decree was entered on June 30, 1961. Within 30 days the defendant, pro se, entered a special appearance and filed a petition to vacate the decree. His petition charged that the decree was based on perjury and it challenged the jurisdiction of the court over his person and the case. It asserted that his wife knew where he was living because of letters he had written to his daughters which bore his return address, because she had been informed of his address by his brother and because her own brother, who was her agent, had communicated with him there. The challenge to the court's jurisdiction of the case was grounded on the fact that the complaint was filed contrary to the provisions of the so-called "cooling off" law, Ill Rev Stats (1959), c 40, §§ 7b, 7c.

As he stepped from the courtroom after filing his petition to vacate, he was served with a petition for alimony and child support and with a summons.

The defendant's petition to vacate was assigned to the judge who entered the decree, but the plaintiff's petition for alimony and child support came before the judge hearing divorce motions. Because of this, and because of the natural division of the case into these two parts, we will treat each part separately beginning with the one which culminated first: the petition for alimony and child support.

This petition came on for hearing on August 1, 1961. The defendant again appeared pro se and again objected to the court's jurisdiction over his person. The court's order noted this, gave him three days to answer the petition or to plead and set the hearing for August 8th. He chose to plead and on August 4th filed three pleas in abatement, a petition praying that the plaintiff be required to answer the pleas, and a petition asking for the dismissal of the plaintiff's petition. The first of the pleas of abatement repeated the points made in his motion to vacate the decree as to the court's jurisdiction over his person and prayed that the service of summons be held void. It also quoted 14 paragraphs from his answer in the prior divorce case, noted that the trial court had found in his favor on the issues raised in the answer, that the Appellate Court had affirmed this finding, and then made the following declaration about the prior decree: ". . . said decree is in full force and effect, and should put an end to the litigation herein." The second plea in abatement questioned that portion of the decree which gave custody of the children to his wife, the contention being made that this same issue and the issue of support were pending in the previous divorce suit because of the remandment by the Appellate Court. Jones v. Jones, 26 Ill. App.2d 484, 168 N.E.2d 783. The third plea elaborated on his objections to the court's jurisdiction of the case because of purported violations of the "cooling off" provisions of the Divorce Act.

On September 8, 1961, the petitions and pleas were assigned to the judge from whom this appeal is taken. On September 13th the court held that it had jurisdiction of the plaintiff's petition and entered a temporary order, effective as of August 1, 1961, for the defendant to pay $50 a week for the support of the children. No alimony order was entered. The pleas in abatement were referred to a master.

On September 21st the plaintiff petitioned for a rule to show cause alleging that the defendant was $350 in arrears. The rule was entered, made returnable September 25th and the defendant was given three days to answer or plead. On September 25th the defendant, still appearing pro se, objected that the notice he received was improper. The rule was then continued to September 27th and made returnable instanter on that day. The case was set especially for 9 a.m. The defendant served notice that he would appear on the 27th to object to the court's jurisdiction over his person and to move that the order for support and the rule to show cause be vacated.

On September 27th the defendant objected to the hearing taking place because an attorney he had retained was engaged elsewhere. The court noted that the attorney's appearance was not on file, that the defendant had been appearing pro se, that the hearing had been especially set and stated that ...

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