APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
P. DRYMALSKI, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1971.
Plaintiff, Leona M. Johnston, filed her amended complaint for divorce on August 15, 1967. She charged defendant, William N. Johnston with wilful desertion, habitual drunkenness, mental cruelty and adultery. She alleged that the marital home was her sole property because it had been purchased with her personal funds and that she held title to it in joint tenancy with defendant only for convenience. She further alleged that defendant, who earned substantial income, had refused to support her and the children of the marriage and that she did not have sufficient income to support herself and the children and to defray the expenses of the litigation. She prayed inter alia for alimony, attorney's fees, and the award of sole title to the marital home.
Defendant in his answer denied all of the substantial allegations of the amended complaint. With regard to the marital home he alleged that it was purchased with his funds, that title was originally held in his name, and that plaintiff received her one-half interest in the property as a gift from him. He denied that plaintiff was entitled to any of the relief sought.
The case proceeded to trial on November 1, 1967, from the contested divorce calendar. Both parties were represented by their respective counsels, but defendant was not present. Plaintiff, who was the only witness, testified that she had married defendant on January 25, 1947, and had lived with him until July 6, 1966, when he deserted her without cause or justification. After she and defendant were married, they resided for some time in an apartment building owned by her mother. They then purchased with her personal funds two lots for $2,300.00 and a third lot for $1,800.00, and they had a house constructed on the property. They financed the construction of the house by using $10,000.00 of her personal funds as a down payment and by placing a mortgage on the property for the balance.
After plaintiff rested her case, the defendant rested without introducing any evidence. The Court then made various findings of record and informed the parties that defendant would be ordered to convey all of his right, title and interest in the marital home to plaintiff and that he would be ordered to pay the sum of $2,500.00 as and for plaintiff's attorney's fees. The following colloquy then occurred:
Mr. Finnegan: In view of the fact that there is no pleading of any special equities or existing circumstances, this transfer of the undivided one-half cannot be transferred unless he gets something in return for it. Is she going to waive alimony?
The Court: Definitely, that is the consideration for the transfer. That is my understanding, is that true?
The Court: I think you should be advised that if you waive alimony you are forever barred now and forever from coming back to this court or any other court and asking for alimony.
The Court: Prepare your decree.
On November 13, 1967, the Court entered a decree granting plaintiff a divorce on the ground of desertion. As a part of the decree defendant was ordered to quit-claim all his right, title, and interest in the marital home to plaintiff. In addition he was ordered to pay (1) child support in the amount of $65.00 per week, (2) $390.00 for past due child support, and (3) $2,500.00 as and for plaintiff's attorney's fees. Plaintiff was forever barred from asserting any claims for alimony or any claims for dower or homestead in the property of defendant. Both attorneys approved this decree.
On November 27, 1967, defendant filed a notice of appeal from those parts of the divorce decree which ordered him to convey his interest in the marital home to plaintiff and from the order which required him to ...