APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
P. DRYMALSKI, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Plaintiff, Joan Teich, appeals from the order of the Circuit Court dismissing her complaint in counts (1) for declaratory judgment that a certain Nevada divorce decree was void, and (2) for separate maintenance, or in the alternative, for divorce. She also appeals from a judgment granting the application of the defendant, Ralph Teich, to register the Nevada divorce decree. The defendant cross-appeals from an order awarding temporary attorney's fees to plaintiff in the sum of $5000.00.
• 1 The order of the court dismissing plaintiff's complaint and each count thereof, is not in a form which is final and appealable. It appearing from the record, however, that the court had determined that the Nevada decree barred plaintiff's actions for separate maintenance or divorce, as well as the action for declaratory judgment, the order is treated as final upon the reasoning of Lakatos v. Prudence Mut. Cas. Co., 113 Ill. App.2d 310; 252 N.E.2d 123 and Peach v. Peach, 73 Ill. App.2d 72; 218 N.E.2d 504. The effect of the order was to terminate these portions of the proceedings upon the merits and no amendment made would cure the complaint.
Plaintiff first contends that in view of the charge of fraud and collusion, it was error to dismiss plaintiff's complaint without taking evidence. Since evidence was taken upon the counter-complaint to register the Nevada decree, we need not concern ourselves with such issue if the decree was, in fact, entitled to registration. The same evidence and the same legal principles would apply to the determination of the validity or the assailability of the Nevada decree on the application to register the decree as would apply on the complaint to declare the decree void.
We proceed upon the issues of the judgments concerning the Nevada divorce decree and the award of attorney's fees. Plaintiff obtained a decree of absolute divorce from the defendant in the State of Nevada, on September 29, 1965, on grounds of mental cruelty. The divorce decree incorporated a property settlement and child custody agreement dated September 28, 1965. Defendant did not appear but was represented by counsel to whom he had given a power of attorney.
Plaintiff went to Nevada, taking four children with her, rented an apartment, lived six weeks in Nevada and left immediately after the entry of the decree. She has never returned to Nevada, and apparently went there for the sole purpose of obtaining a divorce upon grounds which would not then have been recognized in Illinois, the state of the marriage domicile. She was represented by counsel in Chicago, Illinois, and Reno, Nevada. Defendant paid all of her legal fees and her expenses of living in Reno, Nevada. The Nevada decree mentioned three children adopted by the parties during their marriage, but did not mention one child born to the plaintiff during the marriage.
Plaintiff alleges that the Nevada decree was based upon her fraudulent residence and a collusive agreement to the grounds of mental cruelty which she says were false. Plaintiff's testimony as to the reason for her conduct is that defendant trumped up a false charge of adultery and thereafter coerced her to employ his attorney who arranged the trip to Nevada and the fraudulent divorce. She asserts an inadequate property settlement, an unsatisfactory child custody agreement, and in effect, a false denial of legitimacy of a child born of the marriage with consequent denial of child support for the said child.
Plaintiff testified that she and defendant were married November 3, 1951, and lived together as husband and wife until August of 1965. Three children were adopted, whose ages at the time of the hearing were ten and one-half, eight and one-half and five and one-half. A girl was born to plaintiff May 18, 1965, in Evanston, Illinois. This last child, who was four months old at the time of the Nevada decree, is the one whose name was omitted from the custody agreement and the decree.
All parties agree that defendant recognized the child publicly as his until June, 1965. Plaintiff testified that on June 19, 1965, while she and defendant were at a neighbor's party, an incident occurred which involves much of the testimony in the case. Plaintiff's version is that she had been talking to Robert Wescott, who was a social friend and had been at their home. Plaintiff was having difficulty with an earring, which kept falling off, and she stepped into a guest bathroom which adjoined a bedroom to look into a mirror to adjust the earring. Mr. Westcott followed her but remained in the bedroom, and they continued their conversation at which time both the bedroom door and bathroom door were open. She said her husband came in, hit Mr. Wescott, knocking him to the floor, kicked him in the face and then took her by the arm and dragged her home. After arriving home, defendant called the police, who came in response to the call, and advised defendant to calm down and think about it. Defendant suggested plaintiff file a complaint against Wescott for molesting her but she refused. The next day defendant accused her of having an affair with Wescott and struck her. The following day defendant told plaintiff he was sterile, accused her of an affair with Wescott and asked her to confess. She said she denied the affair, and told him the baby was his.
Defendant called Roger Eklund, an attorney, and Charles Horne, who has some association with defendant's business affairs, to come to his home about 5:30 in the evening on June 21, 1965. They did come and all met plaintiff in the family room at this time. The stories vary as to the conversation. Defendant testified that plaintiff told Horne and Eklund, in his presence in their home, that defendant was not the father of the child and that the father was Bob Wescott. Horne testified that plaintiff came into the room with the three men and sat down. She then said she had something on her mind she wanted to get off. He stated that defendant said nothing. Plaintiff said: "I have something I want to get off my mind. Andrea is not Ralph's child. She is the child of Bob Wescott." Horne said that Mrs. Teich said she had relations with Wescott a number of times. Eklund testified that when plaintiff came downstairs and to the family room, defendant confronted her and asked her to admit to them that she had intercourse. He said: "Mr. Teich said to Mrs. Teich, `Joan I want you to tell these men here that you have had intercourse with Bob Wescott and that the baby, Andrea, is Bob Wescott's baby'. I would say that perhaps Ralph had repeated the statement once again, and then Mrs. Teich said, `All right, Ralph, that is true that I did have intercourse with Bob Wescott and Andrea is his baby.'" Plaintiff testified: "Mr. Horne learned of these accusations when Mr. Teich accused me in front of these two men. I told Mr. Horne that the accusations were false and denied them absolutely. If Mr. Horne testified otherwise he would be lying. I don't know if Mr. Horne is a liar. I don't know Mr. Horne very well. I told Roger Eklund that Ralph's accusations were false."
Eklund testified that he had done some work for Kurt Teich Company from time to time. He had drawn one or two wills for Ralph Teich and had handled two real estate deals for Ralph Teich. Plaintiff's testimony is that Eklund had also prepared a will for her. Roger Eklund had been associated with his father in the practice of law. From 1961 to 1964 Roger Eklund's father had performed legal services for Ralph Teich. Together they drew a will for Ralph Teich. The father drew a trust instrument for Ralph Teich. Roger Eklund drew trust instruments for the children. Roger Eklund is a co-trustee with Ralph Teich on Ralph's living trust and two other trusts. The Eklund office probated the will of Ralph Teich's mother. At the time of the divorce proceedings, there were two real estate transactions in which plaintiff released her dower interest and Eklund billed defendant for the services.
On the evening of June 21, 1965, while Eklund and Horne were at the Teich home, plaintiff and Mr. Eklund had a private conversation after the confrontation previously noted. She stated that Eklund told her he was representing Mr. Teich. She said the next day defendant said Eklund wanted to see her in his office. She made an appointment and went to Eklund's office. She told Eklund she did not want a divorce. Eklund said that as a favor he could represent both Mr. Teich and Mrs. Teich. She said she had several meetings with Eklund, and in each case defendant made the appointments. On her second visit, Eklund told her defendant was determined to have a divorce and determined to have the children. Plaintiff said that Eklund told her he spent a great deal of time attempting to persuade Mr. Teich to a reconciliation. She stated she was always willing to reconcile. She had three meetings with Roger Eklund in July of 1965. The first meeting with defendant present was early in August. That was a signing meeting for signing the settlement and custody. As abstracted, she testified:
"I submitted a figure of $600.00 a month as necessary or appropriate support of myself and Andrea. I believe I said that I wouldn't leave Andrea while she was small and go off to work. I believe I said this in one of the later July meetings between Roger Eklund and myself alone * * *. I didn't want to leave Andrea alone at pre-school age. School age is pretty predictable about six. I never said that if I received this $600 a month until Andrea was in school, that is all I wanted. I never said I wanted anything. Mr. Eklund said he'd try to get this amount for me. I said the $600 that I wanted to have that support so I wouldn't have to leave Andrea before she was school age. Roger Eklund did not suggest that I reconsider and request more than $35,000. It was put to me that I was lucky to get this amount and that Mr. Teich would put me out with nothing * * *."
Plaintiff testified that Eklund told her that defendant would like to charge her with adultery in Illinois, that he was a man of means and could prove whatever he wanted to prove; that she would be left without money and without children. She said Eklund told her he persuaded Mr. Teich not to bring suit in Illinois for her sake. Eklund denied the foregoing conversation, and said he told her that if ...