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Keck v. Keck

OCTOBER 4, 1972.

JAMES E. KECK, PLAINTIFF-APPELLANT,

v.

DOLORES F. KECK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 22, 1972.

The plaintiff, James E. Keck, appeals from a judgment entered in the Circuit Court of Cook County dismissing his complaint for divorce and entering a decree of separate maintenance in favor of the defendant, Dolores F. Keck.

The primary issue presented on appeal is whether a Nevada divorce decree obtained by the plaintiff was entitled to full faith and credit in Illinois.

James E. Keck and Dolores F. Keck were married on September 4, 1948. Two children were born of the marriage, a daughter in 1954 and a son in 1956. In November, 1961, the Kecks purchased and moved into a home in Westmont, Illinois. There is conflicting testimony in the record as to certain marital difficulties which faced the Kecks for a period of years beginning in November, 1961, up to July, 1966. The apparent culmination of such alleged marital difficulties was Mr. Keck's moving from the family home into an apartment in Chicago in July, 1966, while Mrs. Keck remained with the children in the family home.

In December, 1967, Mr. Keck filed a complaint for divorce in the Circuit Court of Cook County, in which he alleged as grounds both mental cruelty and constructive desertion. In February, 1968, Mrs. Keck filed her answer to the divorce complaint as well as a counter-complaint for separate maintenance, alleging desertion by the plaintiff.

In October, 1968, Mr. Keck moved his residence to Las Vegas, Nevada. He went into business in Nevada for an independent insurance inspector and was paid for services he rendered to an insurance company while in residence there. Shortly after taking up residence in Nevada, Mr. Keck commenced proceedings to obtain a divorce from Mrs. Keck. In the meantime, the Illinois proceedings initiated by Mr. Keck were assigned to a judge for hearing. The date for the hearing was November 20, 1968. After a continuance to November 26, 1968, the trial court heard certain testimony, and the hearing was then further continued to December 5, 1968. On December 5, 1968, Mrs. Keck was served with both a summons and a copy of the complaint in the Nevada divorce proceedings commenced by Mr. Keck. The hearing was again continued to December 23, 1968.

On December 23, 1968, the hearing was held by the trial court, and the trial judge entered an order continuing all pending matters to a new date. The order also enjoined the plaintiff, who was not present as he was residing in Nevada, from proceeding with his divorce case in Nevada. Finally, the order directed the plaintiff to pay $50.00 per week as temporary alimony and child support.

On December 27, 1968, the Nevada court, having found Mrs. Keck in default, entered a divorce decree based on Mr. Keck's complaint for divorce. Mr. Keck thereafter returned to Chicago for the purpose of clearing up the divorce litigation still pending in the Circuit Court of Cook County. On June 27, 1969, the trial court was presented with a motion by Mr. Keck to dismiss Mrs. Keck's complaint for separate maintenance together with a copy of the Nevada divorce decree. The basis for the plaintiff's motion to dismiss the complaint for separate maintenance was the marriage between the Kecks no longer existed by virtue of the Nevada divorce decree. Mrs. Keck replied to the plaintiff's motion to dismiss with a motion to strike Mr. Keck's motion based on the fact that Mr. Keck, having been enjoined from further proceedings in seeking the Nevada divorce on December 23, 1968, did not have a valid decree. Mrs. Keck also alleged in her motion that Mr. Keck had never established a bona fide domicile in Nevada. Following a hearing at which both the Nevada divorce decree and a documentation of his business dealings in Nevada were entered into evidence by Mr. Keck, the trial court denied his motion to dismiss the complaint for separate maintenance and allowed Mrs. Keck's motion to strike. This ruling was erroneous. The trial court, in ruling on these two motions, stated that no decision had been reached as to the validity of the Nevada divorce decree.

Thereafter, the case was called for trial and testimony was heard. During trial, the Nevada divorce decree was again introduced into evidence. The trial court, however, rather than giving the decree full faith and credit, erroneously ruled the decree invalid, stating the plaintiff was enjoined by this court and the Nevada court had no jurisdiction of Mrs. Keck. Subsequently, on November 18, 1970, a decree was entered by the trial court finding that Mrs. Keck was entitled to separate maintenance, that she was employed and not entitled to alimony at this time, and granting her custody of the children and $50.00 per week for support of the children. The decree also dismissed Mr. Keck's complaint for divorce. It is from this decree the plaintiff herein appeals.

The plaintiff contends the Nevada divorce decree, offered into evidence by the plaintiff, was entitled to full faith and credit in Illinois. Based on this point, the plaintiff further contends the Nevada decree, if granted full faith and credit in Illinois, is a bar to further proceedings under the defendant's complaint for separate maintenance.

There appears to be no basis, in fact or in law, for the trial court's refusal to recognize the Nevada divorce decree, properly admitted into evidence, as valid, and thus give such decree full faith and credit in Illinois. The defendant did not choose to attack the Nevada divorce decree as to any of its essential elements at trial, and only once, on pre-trial motion here, questioned Mr. Keck's status as a bona fide resident of Nevada. The trial court, however, ruled such decree was void. We therefore find it necessary to review those elements of a decree which must be established for the decree to be given full faith and credit pursuant to the United States Constitution, Article IV, Section 1.

• 1, 2 The first of the necessary elements is domicile. It is apparent Mr. Keck established proper domicile for the prosecution of divorce proceedings in Nevada. This was explicitly recognized by the Nevada court in the language of the divorce decree. Even if the Nevada decree had not explicitly recognized Mr. Keck's status as a domiciliary, the United States Supreme Court in Williams v. North Carolina (1945), 325 U.S. 226, requires foreign decrees be given a presumption of domicile. Since the question of the plaintiff's domicile was not attacked by the defendant at trial, either in Nevada or here, the presumption of domicile required by Williams v. North Carolina, supra, was never overcome. There was, therefore, no basis for the trial court to refuse full faith and credit to the Nevada divorce decree as to domicile.

• 3-6 The second necessary element for the decree to establish, in order for it to merit full faith and credit, is jurisdiction. By the defendant's own admission, she was personally served with both a summons and a copy of the Nevada divorce complaint on December 5, 1968. Such service was pursuant to the Nevada "long arm" statute, Nevada Rules of Civil Procedure, Rule 4 (e) (2), and thereby brought the defendant under the jurisdiction of the Nevada court. This fact was also explicitly recognized by the Nevada court in its divorce decree. Our trial court, however, stated the Nevada decree was invalid because the Nevada court did not have jurisdiction over the defendant. The only basis for the trial court's conclusion appears to be the fact the plaintiff was enjoined from prosecuting the Nevada divorce proceedings in the order of the trial court dated December 23, 1968. Such an injunction cannot remove the jurisdiction of the Nevada court which arose on the date of service, December 5, 1968. Furthermore, the personal service on the defendant effectively served notice to her of the Nevada proceedings and gave her an opportunity to defend herself in such proceedings more ...


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