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Kazubowski v. Kazubowski

MARCH 14, 1968.

BETTY DOLAR KAZUBOWSKI, PLAINTIFF-APPELLEE,

v.

EDWARD J. KAZUBOWSKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Henry County; the Hon. DAN H. McNEAL, Judge, presiding. Certain appeals dismissed and certain decree and orders affirmed.

PER CURIAM.

The nature of the appeal and the proceedings in this Court can best be understood by a recital of what apparently transpired in the trial court.

The proceeding arose as an action for divorce by Betty Dolar Kazubowski as against appellant, Edward J. Kazubowski. As a result of a jury trial, the issues on the complaint of plaintiff were found in favor of plaintiff and against defendant (and as against defendant on defendant's counterclaim). By reason thereof, a decree for divorce was entered on June 13, 1966. There were no children of the parties and no custody problems are involved.

The decree contained a recital that there was "no reason for delaying enforcement or appeal of this portion of the order" as an attempt to comply with section 50(2) of the Civil Practice Act (1965 Ill Rev Stats, c 110, § 50(2)). The decree made no adjustment of property rights but such matters were reserved by the court for later determination. On July 12, 1966, a post-trial motion was heard with respect to the decree of June 13, 1966, and such motion was denied.

Thereafter, on July 25, 1966, a four-page stipulation was entered into by attorneys for each of the parties presumably settling all property rights. Among other things the stipulation provided for a $15,500 payment by the defendant (the husband) to the plaintiff and such payment was to be secured by a "second mortgage" on property which was owned jointly. To carry this into effect, the interest of the plaintiff was to be conveyed by plaintiff to defendant. The property was owned in joint tenancy during the marriage and there was a first mortgage on it. However, since the divorce action had been instituted, a judgment had been entered as against defendant by confession in the sum of $10,000, in favor of the mother of defendant, Mary Kazubowski. Since a second mortgage would amount, under such conditions, to a third lien, the court decree which was entered later in August, which adopted the stipulation, provided that defendant should secure his payment of $15,500 with a "second lien." The decree further provided that plaintiff (wife) could retain her joint interest in the property until she was given a "second lien" on the property. It is this provision in the stipulation and the action of the court in the decree which appears to be the basis of the problems which arise in this cause. The defendant had filed a motion to amend the stipulation prior to the time the decree was actually entered pursuant to such stipulation.

On July 27, 1966, defendant filed a motion for continuance requesting that no hearing be held on the property division until the divorce decree became final by failure of defendant to file notice of appeal within 30 days after the denial of the post-trial motion which was on July 12, 1966. This motion apparently gave recognition to the recital contained in the decree that there was no reason for delaying enforcement or appeal of the portion of the order decreeing that a divorce was granted.

On August 31, 1966, the court entered the property settlement decree which contained the "second lien" provision hereinabove referred to. The decree was presumably entered pursuant to stipulation of the parties and following appearance of attorneys for the parties in court. At the same time, the court denied defendant's motion to modify the stipulation and the decree, and the property settlement decree was entered. Thereafter, on September 6, 1966, defendant filed objections to the decree on the ground that the court had incorrectly modified the stipulation between the parties. On September 8, 1966, plaintiff filed a petition requesting that defendant be cited for contempt and be ordered to pay attorney's fees. On September 15, 1966, defendant filed amended objections and motion to vacate the decree and an answer to the petition filed by plaintiff.

On September 15, 1966, defendant filed a notice of appeal from the decree of August 31, 1966, covering property settlement in this cause. On this same date, September 15, 1966, a hearing was held with respect to plaintiff's relief requested. The only testimony offered at such time was that of plaintiff's attorney. On cross-examination he was asked about the negotiations with respect to the stipulation and he stated unequivocally that he refused to take anything less than a second lien as security against defendant's obligation to pay the $15,500. The court entered an order overruling defendant's objections; allowing citations for contempt; finding defendant in contempt for failure to pay $4,900 on September 1, 1966; allowing $500 attorney's fees for plaintiff's counsel; holding defendant in willful contempt; and directing the clerk to issue a mittimus committing defendant to jail for six months or until he sooner purges himself by payment of $5,400.

On September 19, 1966, plaintiff filed a petition for alimony during the period of appeal and for attorney's fees to pay for the appeal. Defendant filed a special and limited appearance to this motion. On September 23, 1966, a hearing was held in regard to the relief requested on the petition of September 19 referred to and the court awarded $70 a week as alimony and $1,700 as attorney's fees to plaintiff to be paid by defendant. On September 28, 1966, plaintiff filed a petition for a rule to show cause why the September 23, 1966, order was not complied with. Defendant replied to such petition and on September 29, 1966, asked that the September 23 order be included in the appeal. The court allowed this but ordered that the June 13, 1966, decree (the original divorce decree) was not to be part of the appeal. Thereafter, in October and November there were a series of petitions and orders dealing with enforcement of the decree by contempt and also allowing defendant to include these various later orders in the appeal.

On appeal in this court, defendant contends that it was reversible error to exclude matters prior to July 12, 1966, from the record on appeal. This is based on the contention asserted that the decree for a divorce only is not enforceable nor final and appealable. The June 13, 1966, divorce decree, if appealable, would become final 30 days after July 12, 1966, the date upon which the post-trial motion was denied. There was no appeal from such decree during such period. Chapter 110, § 50(2) (1965 Ill. Rev Stats) of the Civil Practice Act provides:

"If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or rights and liabilities of fewer than all of the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before entry of the order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties."

The question before us is whether this section operates to make the June 13 decree a decree which was not final or appealable.

It is the contention of the defendant that the June 13, 1966, decree could not be construed as a final and appealable order even if there was the finding referred to in section 50(2) on the basis of Biagi v. O'Connor, 18 Ill.2d 238, 163 N.E.2d 461, and Davis v. Childers, 33 Ill.2d 297, 211 N.E.2d 364. In the Biagi case (which involved a partnership accounting) a decree was entered dismissing a countercomplaint and referring the matter to a Master. It involved a decree entered in June, 1954, before section 50(2) was passed. A later decree was entered in July, 1956. The Appellate Court, in construing the section, stated that it was procedural and applied it retroactively. The basic question in the Biagi case was that of constitutionality of such retroactive application and is not a precedent for construction of the issue before us.

In Davis v. Childers, supra, there was a trial before a jury in an automobile accident case. The jury found for the defendant but the trial judge entered a judgment notwithstanding the verdict for plaintiff and in that judgment provided there was no reason for delaying the appeal. The question of damages was reserved for determination. The appeal was dismissed in the Appellate Court and this action was affirmed in the Supreme Court on the ground that section 50(2) could not apply even if the judge provided that there could be an immediate appeal. The court there found that there was only a single claim and a single party involved. This tort action is not a precedent to be applied in a divorce action where there is both a ...


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