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Kay v. Kay

FEBRUARY 27, 1964.

ORVEL KAY, PLAINTIFF-APPELLANT,

v.

MARION KAY, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. ELMER N. HOLMGREN, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

This appeal is from an order denying the petition of the plaintiff to vacate the decree of divorce granted his wife.

In November 1962, the plaintiff, Orvel Kay, sued his wife for divorce on the ground of cruelty. The defendant, Marion Kay, filed her appearance on December 4, 1962. On December 17th she was granted leave to file a counter-complaint for divorce, which was also on the ground of cruelty, and the plaintiff was granted leave to file his answer to the counter-complaint — both instanter. The answer, signed for the plaintiff by his attorney, denied the acts of cruelty. On the same day a stipulation was filed, by counsel for the parties, to have the counter-complaint heard as an uncontested matter at the convenience of the court. The case was heard the same day. The court found the issues for the defendant and ordered that a decree for divorce be prepared.

On December 19, 1962, the plaintiff served notice on his own and his wife's attorney that he would appear in court on December 20th and move to set aside the finding of December 17th and for an order allowing him to employ counsel. On December 20th he appeared pro se and made the motion. The motion to set aside the finding of December 17th was denied. The divorce decree was entered on January 2, 1963, after notice had been given to the plaintiff personally and to his former counsel. On January 30th the plaintiff, represented by new counsel, filed a petition to set aside the divorce granted his wife. This petition was also denied and the present appeal is from the order denying the petition.

The second petition stated that new evidence and fraud had been discovered since the entry of the decree; that the defendant first learned that he had been divorced through a newspaper article and that he had no counsel at the time the decree was issued. The new evidence was said to be that he was not guilty of the cruelty charged; that there had been no agreement as to property rights; that he had gone into debt to purchase their home; that he furnished the home but that his wife had taken some of the furnishings and that he had cancelled his life insurance at the persuasion of his wife.

The fraud was said to be that he was not allowed to attend, had no notice of, and had not consented to the divorce hearing; that his attorney filed an answer not signed by him; that his wife should have been defaulted for failing to answer his complaint; that no order was entered withdrawing his complaint for divorce; that he and his wife had been married only six months; that one of his wife's witnesses was unknown to him and had committed perjury; that the court was not informed of the situation surrounding the marriage; that the court failed to consider the record and the complaint, and that the court did not allow him to procure new counsel.

As can be readily seen, much of what was designated as newly discovered evidence was not that at all, and much of what was designated as fraud was not fraudulent. Almost all of these contentions have now been abandoned. Just three assignments of error are raised in this appeal:

"(1) The court erred in refusing to allow plaintiff to procure new counsel.

"(2) The plaintiff's attorney had no authority to waive the rights of the plaintiff by entering into a stipulation with opposing counsel or by signing the plaintiff's name to the answer made to the defendant's counter-complaint.

"(3) The defendant's attorney was put on notice by the stipulation entered into between counsel, which released the plaintiff's cause of action, to inquire into the authority of the plaintiff's attorney to make a settlement."

The first point urged by the plaintiff is that under the factual situation which prevailed at the time the motion was made, "The court erred in refusing to allow plaintiff to procure new counsel prior to the entry of the decree of divorce. . . ." The motion referred to is that of December 20, 1962, and the point is directed to the order entered on that date. However, the plaintiff has not appealed from the order of December 20th. His notice of appeal is limited to the order entered January 29, 1963.

"Orvel Kay, counter defendant, appellant, hereby appeals to the Appellate Court of Illinois from the Order entered in this cause refusing to set aside or vacate the Decree of Divorce entered into the 2nd day of January, 1963 as set forth in the petition filed by Orvel Kay on January 29, 1963."

Moreover, the record does not show that the trial court refused to permit the plaintiff to obtain different counsel; the order of December 20th contains nothing to this effect. On the other hand, the record does show that the plaintiff replaced his counsel by representing himself. He served notice of his own motion on his counsel and on his wife's attorney, and filed it in the clerk's office on December 19th. He appeared in court, in the presence of his counsel, and made his motion pro se on December 20th. The decision to represent himself was the plaintiff's prerogative and he has no reason to complain.

The second point, that the decree should be vacated because the plaintiff's counsel exceeded his authority, also requires reference to the order of ...


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