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Baker v. Baker

ILLINOIS APPELLATE COURT — FIFTH DISTRICT


DECEMBER 16, 1971.

CECIL BAKER, APPELLEE,

v.

VIRGINIA BAKER, APPELLANT.

APPEAL from the Circuit Court of Union County; the Hon. PAUL D. REESE, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant appeals from an order of the trial court denying her motion to set aside a decree granting plaintiff a divorce and divesting defendant of any interest in real estate owned by the plaintiff.

The facts pertinent to this opinion may be briefly stated. The parties were married on June 15, 1968. Plaintiff's complaint for divorce was filed on May 15, 1970. On the same date defendant filed her written entry of appearance, waiving service of process and consenting that immediate default might be entered against her at any time thereafter. On June 11, 1970, a decree was entered granting the plaintiff a divorce from the defendant and divesting defendant of any interest in real estate owned by plaintiff. On June 12, 1970, the defendant remarried. On July 9, 1970, defendant filed a motion to set aside the decree of divorce on the grounds that she had been fraudulently deprived of a one-half interest in real estate which was the residence of the parties during their marriage. Plaintiff filed an answer to the motion and after hearing evidence the trial court entered an order denying defendant's motion to set aside the decree. The defendant appeals.

Defendant argues in this court that the trial court abused its discretion in refusing to vacate the decree for divorce since the preponderance of the evidence at the hearing showed that the plaintiff had perpetrated a fraud in obtaining a decree of divorce which also barred defendant of any interest in the plaintiff's real estate.

However, in the view we take of the case it is not necessary for us to consider the merits of defendant's charges of fraud. It is undisputed that the defendant remarried the day after the decree of divorce was entered. She thereby recognized the validity of the divorce decree and availed herself of its benefits by marrying another man. She is accordingly estopped to attempt to vacate the decree. Boylan v. Boylan, 349 Ill. 471, 182 N.E. 614; Pierotti v. Pierotti, 343 Ill. App. 116, 98 N.E.2d 875; McDonald v. Neale, 35 Ill. App.2d 140, 182 N.E.2d 366.

Judgment affirmed.

MORAN, P.J., and EBERSPACHER, J., concur.

19711216

© 2002 VersusLaw Inc.



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