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Sajich v. Sajich

SEPTEMBER 3, 1970.

DRAGISA SAJICH, PLAINTIFF-APPELLANT,

v.

OLGA SAJICH, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. MINARD E. HULSE, Judge, presiding. Judgment reversed and judgment for the plaintiff.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The plaintiff, Dragisa Sajich, obtained a divorce by default from the defendant, Olga Sajich, on August 27, 1952. In October, 1968, the defendant, who had been served by publication, filed a petition to vacate the decree of divorce, alleging that it had been procured through fraud, in that the plaintiff's affidavit for publication asserted that her place of residence could not be ascertained, and that her last known address was Moravci, Serbia, Yugoslavia. The petition further alleged that the plaintiff was aware that the defendant's last known address was Kadina Luka, Yugoslavia. After an extended hearing, the trial court granted the defendant the relief sought in her petition, and vacated the decree.

The plaintiff appealed and contends that the defendant did not prove that he fraudulently made and executed the affidavit for publication, and also urges that the defendant was guilty of laches in presenting her petition.

The evidence was conflicting, and that on the plaintiff's behalf indicated that he and the defendant were married in Moravci, Yugoslavia, in 1927; that after their marriage they lived in Kadina Luka during the summertime and operated a small farm in that village; and that they lived in Moravci, with a cousin, in the wintertime. Kadina Luka did not have a post office; Moravci did. The two villages were approximately four miles apart. The plaintiff admitted that they did not live in Moravci every winter.

The plaintiff testified that he was taken prisoner by the Germans in 1941 and was a prisoner of war until 1945; that he did not return to Yugoslavia after the war because the communists were in control of the country; that in 1950 he migrated from Germany to this country, and that he asked his wife and children to join him, but his wife preferred to remain in Yugoslavia.

The plaintiff further testified that he wrote numerous letters to her from 1941 until the beginning of 1952, most of which he addressed to Moravci, because there was a post office there; that he addressed some mail to Kadina Luka; and that he sent money to four of his sons, and most of the money orders were addressed through Moravci.

He also stated that prior to entering the war and being taken prisoner, he received mail through the post office in Moravci; that the defendant and plaintiff were married in the church in Moravci; that when they were in Moravci, the post office delivered the mail to them there; that when they were in Kadina Luka, the post office delivered the mail to them there; and that the postmaster in Moravci knew most of the families who lived in the nearby surrounding villages, including Kadina Luka.

While a patient in a German hospital, the plaintiff met his present wife, Mathilda, whom he married in November of 1952, subsequent to the date of the divorce decree, which was entered in this proceeding. In 1954, the plaintiff and his second wife, Mathilda, bought a ten-unit apartment building, in partnership with Svetosar, a cousin of the plaintiff. In 1952, he introduced Mathilda to Svetosar as his wife. When they bought the apartment building with Svetosar, Mathilda signed all of the necessary papers as the plaintiff's wife, in the presence of Svetosar. The plaintiff and Mathilda, as husband and wife, lived in the apartment building, which was also the place of residence of Svetosar, who visited with them almost daily. In 1956, Svetosar visited the Kadina Luka and Moravci area, and, upon his return to this country, told the plaintiff that the defendant did not object to being divorced as long as the plaintiff supported the children.

In 1962, the plaintiff brought Budimir, a son, who was born in 1935, to this country. The plaintiff, Mathilda, Svetosar and his wife, met Budimir at the train station. The plaintiff introduced Mathilda to Budimir as his wife. Budimir was immediately taken to a tuberculosis sanitarium where he was visited by the plaintiff and Mathilda several times a week during his three-month stay there. Budimir then lived with the plaintiff and Mathilda in their apartment for eight to ten months.

The plaintiff testified that Budimir told him that the defendant was unhappy about the divorce, but that she did not know about the plaintiff's remarriage. Budimir subsequently married and the plaintiff and Mathilda, as husband and wife, attended and took part in his large wedding and reception.

In 1968, the plaintiff brought his son, Grujica, who was born in 1940, to this country. The plaintiff, Mathilda, Svetosar and his wife, met Grujica and his wife at the train station, and the plaintiff introduced Mathilda as his wife. Grujica and his wife then lived with the plaintiff and Mathilda, in their new home, for approximately three months. During this time, the plaintiff and Mathilda openly lived together as husband and wife.

The defendant's portion of the conflicting evidence was that she and the plaintiff had lived in Kadina Luka, where her family's farm was located; that she had been in Moravci only once, and that was when they were married; that the mail she received from her husband was addressed to her at Kadina Luka; and that she did not learn of her husband's divorce action until after she arrived in this country in June, 1968.

Budimir testified that when he came to America there was no post office in Kadina Luka or Moravci; and that the post office receiving mail for Kadina Luka was located in Ljig. He further stated that while he lived with the plaintiff and Mathilda, his father did not tell him that he was married to Mathilda, and refused to talk about her. He admitted that after his marriage, he lived in the same apartment building as his father and Mathilda for an additional ten months.

Grujica testified that on their arrival in this country, he and his wife lived with his father and Mathilda in their house; that his father refused to talk about Mathilda with him; and that the post ...


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