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O'donnell v. O'donnell

JUNE 19, 1972.

JAMES R. O'DONNELL, PLAINTIFF-COUNTER DEFENDANT-APPELLEE,

v.

JANE L. O'DONNELL, DEFENDANT-COUNTER PLAINTIFF-APPELLANT — (TERRYL W. FRANCIS, ATTORNEY-DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Scott County; the Hon. L.A. MEHRHOFF, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

On May 25, 1970, Plaintiff-Counter Defendant-Appellee, James R. O'Donnell (hereinafter referred to as "Plaintiff"), filed suit for Separate Maintenance in the Circuit Court of Scott County. On July 30, 1970, with leave of Court, the Defendant-Counter Plaintiff-Appellant, Jane L. O'Donnell (hereinafter referred to as "Defendant") filed her Counterclaim for Divorce on the ground of mental cruelty. Answers were filed to the Complaint and to the Counterclaim. The causes were heard in a bench trial, following which the trial judge entered a Decree for Separate Maintenance and denied defendant's Counterclaim for Divorce. During the course of the proceedings the trial court also entered an order finding both defendant and her attorney in contempt of court. The attorney has joined in defendant's appeal, and is himself an appellant here because of the contempt order.

• 1 We initially note that plaintiff's counsel appeared and argued this appeal; appellant did not appear for oral argument. Appellant's Excerpts from the Record were twice stricken for failure to comply with the rules and his brief and argument are in flagrant violation of the provisions of Supreme Court Rule 341. No case citation refers to the pages upon which the pertinent matter appears in any of the reporters cited as required by subparagraph (d) of the rule. The Statement of Facts is argumentative and contains not a single reference to the pages of the record on appeal nor to the pages of the excerpts from the record as required by paragraph (6) of the rule. The statement of the issues is violative of paragraph (2) of the rule in that it is argumentative, and so detailed that in one instance the statement of a single issue is spread over almost a complete page. Under the heading Points and Authorities the appellant listed 14 separate points, three of which were not supported by citation of authority as required by paragraph (5) of the rule, and two of which simply cited a page or a section from "I.L.P.", and the statute was cited, for example, as "Chapter 68, I.R.S. 22, pages 183-184". In at least one instance the argument contains statements of purported fact which are not supported by the record. This recital does not exhaust the list, it is only representative. We would have been fully justified in striking the appellant's brief.

The Chronology of events being of importance, we recite them.

Plaintiff's Complaint for Separate Maintenance was filed on May 25, 1970. Paragraph IV of that Complaint alleged that "* * * the parties are the owners of real estate, household goods, and personal property, possession of which plaintiff will require in order properly to care for his said children." Paragraph IV of the prayer requests that "* * * he may be awarded the real estate, household goods, and personal property of the parties." (Emphasis added.) Defendant's Answer to this paragraph of the Complaint for Separate Maintenance stated "The defendant admits that parties own real estate, household goods and personal property, but denies that the Court can award said property to either parties [sic] in a suit for separate maintenance."

Defendant's Counterclaim for Divorce was filed July 30, 1970. Paragraph V of that Complaint alleged "* * * that during their marriage the parties have acquired some equity in a home located in Winchester, Illinois, five rooms of household furnishings, a 1966 Pontiac automobile and a 1955 De Soto automobile." Plaintiff's Answer admitted this allegation. Paragraph (c) of the prayer for relief reads, "That she be awarded the marital home of the parties and the five rooms of houshold furnishings and further that she be given the automobiles for her own personal transportation and use * * *."

On September 23, 1970, the Court entered its Decree of Separate Maintenance, denied defendant's Counterclaim for Divorce, awarded custody of the children to plaintiff with rights of visitation provided for defendant. The Decree awarded defendant her clothing and personal effects and a set of china which she had acquired prior to the marriage. The trial judge also found that the plaintiff "* * * should have the residence and the remaining household goods in order that he may properly support and provide for the children of the parties.", and ordered defendant to convey her interest in the residence to plaintiff. The decree made no provision for defendant's attorney fees.

On October 1, 1970, a deed was recorded in the Office of the Recorder of Deeds of Scott County, whereby defendant, Jane L. O'Donnell, conveyed her interest in the premises to her attorney, Terryl W. Francis, who as above indicated is a party to this appeal.

On October 7, 1970, defendant by her said attorney, filed a "Motion to Set Aside Decree". The motion was signed by defendant's attorney and had been verified by the defendant on October 2, 1970. One of the grounds urged in the Motion was that "* * * the Court did not have the power * * * [to] rule on any property settlement and there was no evidence in support of property settlement, and the Decree specifies a property settlement which was out of the power of the Court to make." The motion also complained of the failure of the Court to allow attorney fees to defendant.

On the same day, October 7, 1970, defendant, by her said attorney, filed a Motion for a New Trial which also urged that the Court was without authority to award property interests in a Separate Maintenance action, "* * * particularly since there was no evidence to support any property settlement."

On October 23, 1970, plaintiff filed a Petition for Citation for Contempt of Court directed both to defendant and her attorney. The Petition was verified; recited the Decree of Separate Maintenance being entered on September 23, 1970, and that "thereupon by United States Mail, defendant, Jane L. O'Donnell, and her attorney, Terryl W. Francis, were notified that said Decree had been entered." The Petition also recited the execution of the deed by defendant whereby her interest in the premises awarded to plaintiff had been conveyed to attorney Francis and recorded by him, and alleged that the deed was recorded by him after he had full knowledge of the Court's Decree.

On October 23, 1970, the trial judge entered a Rule to Show Cause against defendant and her attorney and made the rule returnable on November 12, 1970, at 1:30 P.M., and also set defendant's Post-trial Motions for Hearing on the same date and hour.

On December 3, 1970, the Court ruled on the Post-trial Motions. Its order recites the proof of service of notice of hearing on the Motions; the presence, in open court, of plaintiff and his attorney, and the fact that neither defendant nor her attorney appeared. The trial judge also noted, in the record, that he had been advised by mail that defendant did not desire to attend the hearing on the motions and submitted them without argument. The Court then overruled both of the Post-trial Motions.

The Rule to Show Cause was then called for hearing. The Court's orders recite the proof of mailing notice of the hearing on the rule, the failure of defendant and her attorney to appear and found them to be in default. Neither defendant nor her attorney had filed any pleading in response to the Rule to Show Cause. The trial judge then entered an order finding the allegations of the Petition to be true and adjudged defendant and her attorney, Terryl W. Francis, guilty of willful contempt in the execution, delivery and recording of the deed, which conveyed to Francis, defendant's interest in the premises awarded to plaintiff in the Decree for Separate Maintenance. The order further provided that defendant and her attorney could purge themselves of contempt in the following manner: Attorney Francis to reconvey to defendant, Jane L. O'Donnell, the interest which he had acquired from her ...


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