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Varap v. Varap

NOVEMBER 3, 1966.

JOANN DARE VARAP, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

BARNEY VARAP, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County, Divorce Division; the Hon. ROBERT HUNTER, IRVING GOLDSTEIN, and FRED SLATER, Judges, presiding. Decree of divorce affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

The plaintiff and the defendant were married in 1959, lived together until 1962 and were divorced in 1965. The divorce was obtained by the plaintiff on the grounds of cruelty and desertion and she was awarded alimony in gross of $6,500 and attorney fees. The defendant appealed from the adverse decree and the plaintiff petitioned for temporary alimony pending the appeal and for attorney fees to defend the appeal. Her petition was granted. The defendant appealed from the post-decretal order and his two appeals have been consolidated. The plaintiff has cross-appealed from a finding in the divorce decree that she was not entitled to a fee interest in the home in which the parties lived.

This was the defendant's second marriage. His first wife obtained a divorce in Arizona in 1957. The defendant contends that the Arizona divorce was invalid and that because of this his marriage to the plaintiff was void ab initio and that she was not entitled to a divorce, alimony or attorney fees. The principal points urged by him in this appeal center around this contention. Subordinate points concern an order entered during the trial permitting the plaintiff to amend her complaint to add the charge of desertion; the amount of alimony awarded the plaintiff, and the lien for $6,500 granted the plaintiff on the home in which they lived. In her cross-appeal the plaintiff contends that, instead of being granted a lien she should have been declared the owner of a one-third fee interest in the property.

In an amended answer and in a counterclaim to the plaintiff's complaint, the defendant asserted that the divorce obtained by his first wife two years before his marriage to the plaintiff was void because the Arizona court did not have jurisdiction over his wife or himself. This affirmative defense was based on letters he had received from his wife which he claimed tended to show that she had not lived in Arizona for the period of time required by the law of that state as a condition precedent to obtaining a divorce and that she was not a resident of the county in which the divorce was filed. He claimed that he had no knowledge of this until 1963, although the letters were received by him in 1956 and 1957 and were at all times in his possession. He contended that jurisdiction over him was lacking because he had not been personally served with summons or served by publication. However, the exemplified copy of the Arizona divorce proceedings contained an affidavit that the summons and complaint had been served upon him by registered mail. The plaintiff moved to strike this portion of the pleadings and her motion was sustained.

The courts of one state must give full faith and credit to the divorce judgments of sister states (Williams v. North Carolina, 317 U.S. 287, 87 L Ed 279 (1942)) but they may inquire whether or not the court of another state entering a prior judgment had jurisdiction of the parties and they can disregard the judgment if they find it is void for lack of jurisdiction. Williams v. North Carolina, 325 U.S. 226, 89 L Ed 1577 (1944); Field v. Field, 215 Ill. 496, 74 NE 443 (1905).

If the defendant could sustain his burden of proof that his first wife was not domiciled in Arizona or that he was not properly before the Arizona court he could, under normal circumstances, contend that the court lacked jurisdiction to enter the prior judgment. However, because we hold that the defendant is estopped from claiming the invalidity of the prior decree, we do not find it necessary to ascertain whether or not the Arizona court was, in fact, lacking jurisdiction.

No case exactly like the present one has been brought to our attention but there are many cases which hold that a person who treats a divorce decree as valid by remarrying is estopped from later denying its validity. E.g.: McDonald v. Neale, 35 Ill. App.2d 140, 182 N.E.2d 366 (1962); Pierotti v. Pierotti, 343 Ill. App. 116, 98 N.E.2d 875 (1951); Scase v. Johnson, 130 Ill. App. 35 (1906); Blume v. Blume, 6 NYS2d 516 (1938); Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d 1 (1950). In the Pierotti case the court said: "[T]he rule is well and generally settled that one who accepts the benefits and privileges of a divorce decree by a remarriage, even though the decree be void for want of jurisdiction, is estopped from thereafter assailing such decree." In McDonald the court explained that, "The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, . . . whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights. . . ." The general rule is well stated in Restatement, Conflict of Laws (1934) subsection 112, comment A: "A spouse who treats as valid a decree for divorce by remarrying is precluded from subsequently disputing the validity of the decree although he neither obtained the decree nor was personally before the court which rendered it."

The defendant admits in his amended answer that he had been informed that the prior divorce proceeding was legal and that he was not advised that it might be otherwise until his attorney in the present litigation did so. It is evident that he accepted and recognized the Arizona decree. Public policy dictates that the defendant be estopped from challenging the validity of the prior decree. It would be grossly unfair to allow him to escape the obligations he has incurred to his second spouse, whom he married in reliance upon the validity of the prior divorce, and who undoubtedly married him in the belief that he was free to enter into a valid marriage, by asserting the nullity of the former decree. The law will not tolerate such inconsistent positions. The trial court did not err in striking the portions of the defendant's answer and counterclaim which pertained to this point.

Furthermore, Ill Rev Stats 1963, c 40, par 1, declares in part that when there has been a bigamous marriage the injured party may obtain a divorce and dissolution of the marriage. Chapter 40, paragraph 20, provides that when a woman is granted a divorce from a man who had another spouse living at the time of the marriage, the court may allow the plaintiff alimony as in other divorce cases. While these provisions may not be used as the basis for our present holding because they were not raised in the trial court, they do demonstrate that it is not the policy of the legislature to frustrate a person in the plaintiff's position nor condone conduct such as the defendant's.

The defendant next urges that the trial court erred in allowing the plaintiff to amend her complaint during the trial to charge the additional ground of desertion. He claims that the plaintiff had not proven an independent ground for divorce at the time the amendment was permitted and therefore she did not have the right to assert a cause of action for desertion. The crux of the defendant's argument is that when a person abandons her spouse she must have done so for reasons that would entitle her to a divorce before she would have a cause of action for desertion and since no such reasons existed in the present case the plaintiff did not have an action for desertion.

The plaintiff originally charged the defendant with cruelty. She testified that the defendant struck her without cause and threatened to kill her with a rifle on August 20, 1962. The defendant denied this. The plaintiff further testified that on November 21, 1962, while she was at the home of a friend of the family, the defendant came in and struck her again. Her testimony as to the latter date was corroborated by the friend and his thirteen-year-old daughter.

In his countercomplaint for divorce the defendant charged that the plaintiff committed adultery on the night of November 21, 1962, and he testified that, while looking through the window of the friend's home that evening, he observed the plaintiff come out of the friend's bedroom attired in a robe. He also introduced into evidence certain cards sent by the plaintiff to the friend which, he claimed, indicated that the relationship between them was something more than mere friendship.

The plaintiff denied that she had committed adultery at any time. The friend's thirteen-year-old daughter testified that the plaintiff was fully clothed and had wrapped Christmas presents and watched television with her all evening. The friend testified that the plaintiff was fully clothed at all times on the evening of November 21st, that he had not been alone with her, that he had gone to bed early that evening because he was recovering from an operation and that he was awakened when the ...


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