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Webb v. Webb

DECEMBER 3, 1970.




APPEAL from the Circuit Court of Lake County; the Hon. THOMAS J. MORAN, Judge, presiding.


A divorce proceedings between the plaintiff and defendant forms the basis for four separate appeals which have been consolidated for review.

On February 15, 1965, plaintiff filed a complaint for divorce alleging defendant's extreme and repeated cruelty. On December 28, 1966, defendant filed a counter-claim alleging plaintiff's desertion. During the hearing, defendant withdrew his counter-claim and chose not to contest the complaint. The cause proceeded and on March 30, 1967, at the conclusion of plaintiff's evidence, the court granted the divorce to the plaintiff, at which time the defendant was still present in court. On the following day, upon agreement of the parties and counsel, the court awarded the custody of the three children to the plaintiff. The question of support, alimony and property rights were reserved for later determination.

Pursuant to the court's instruction counsel for the plaintiff prepared a written decree which the court signed on December 20, 1967, to be entered nunc pro tunc as of March 30, 1967. On plaintiff's petition, the court resumed hearings on April 8, 1968, with regard to alimony and property rights.

On June 30, 1969, the defendant filed a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 72) to vacate the decree of divorce. The petition alleged that the decree was procured by fraud. After hearing and the submission of briefs, the court ruled that the petition was not filed within the two year limitation provided in the section. Defendant's first appeal is from this order (69-187).

On January 7, 1970, a supplemental decree was entered which determined questions of permanent alimony, child support and attorney's fees. A second appeal (70-43) is from that order. The third appeal taken (70-95) is from an order entered February 24, 1970, awarding temporary alimony and child support to the plaintiff pending appeal as provided under Section 15 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 16). The fourth appeal (70-109) has been taken by the plaintiff from an order entered April 20, 1970. During oral argument, this last appeal, 70-109, was dismissed by stipulation of the parties.

Defendant contends that the court erred in dismissing his petition under Section 72 on the grounds that it was not filed in apt time. He argues that since the court entered the draft decree on December 20, 1967, nunc pro tunc as of March 30, 1967, his time for the purpose of the section should commence at the time the draft order was entered.

The record discloses that the court at the close of the evidence on the divorce portion of the complaint announced its decision in the presence of the defendant. At many hearings subsequently had, the record further discloses that the defendant was completely aware that his marriage was terminated as of March 30, 1967. He was expressly reminded of this by the court on the day following the decree. The matter has been and still is in continuous litigation before the trial court.

In addition, while this matter was pending before us, plaintiff moved to dismiss defendant's appeal No. 69-187. The motion alleges that the defendant has remarried after the decree of divorce was entered, is the father of a child born legitimately on June 23, 1970 and that he is thereby estopped from further seeking a vacation of the divorce decree. The facts of the motion are admitted by the defendant but he urges that such facts have no effect on the merits of his appeal.

• 1, 2 We disagree with the defendant. He seeks reinstatement of a petition to vacate the decree of divorce while acting as husband and father in a subsequent marriage, lawful under the statutes of this State. The subsequent marriage was consummated in reliance upon the validity of the instant decree of divorce, the benefits of which he has accepted, and he is therefore estopped to vacate the same. The rule that a person who has accepted the benefits of a divorce decree should not be permitted to attack the same, is a rule of estoppel followed repeatedly by courts of this and many other states. The rule was recently stated by this Court in Goodman v. Goodman (1970), 125 Ill. App.2d 190.

In McDonald v. Neale (1962), 35 Ill. App.2d 140, 151, the remarriage of the petition was found to be dispositive of the controversy. As the court stated:

"* * * The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights as petitioner has here attempted * * *"

Appeals Nos. 70-43 and 70-95 concern awards given in supplemental decrees. The defendant argues that the court erred in requiring him to pay excessive amounts of money for alimony, both permanent and temporary child support and plaintiff's attorney's fees.

• 3, 4 It is within the sound discretion of the trial court to determine the form and amount to be awarded for alimony and attorney's fees. (Canady v. Canady, 30 Ill.2d 440.) The findings and judgment of the trial court will not be reversed ...

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