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Katz v. Katz

FEBRUARY 5, 1973.

LIBBY KATZ, PLAINTIFF-APPELLEE,

v.

LEONARD KATZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GLENN T. JOHNSON, Judge, presiding.

MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:

A decree was entered granting plaintiff a divorce and ordering, inter alia, that the parties equally divide certain United States Series H savings bonds then in the possession of the defendant. Appeal is taken by defendant only from that portion of the decree relating to the division of the Series H bonds.

Plaintiff alleged that throughout the marriage she had assisted the defendant in acquiring real and personal property which stood in the names of both parties and in defendant's name alone, and that there exists other assets unknown to plaintiff, all in which she is entitled to an interest.

Plaintiff specifically testified that at the outset of the marriage she contributed $2000 toward the defendant's business, but that she did not contribute financially to any of the assets owned by the parties at the time of trial. No further testimony was elicited relative to the ownership of the Series H bonds.

Defendant contends that the plaintiff is not entitled to one-half interest for two reasons: 1. No prayer for relief relating to the Series H bonds was set forth in the complaint. 2. The plaintiff failed to allege and prove that she had special equities in the property. Since we agree with the defendant for the second reason ascribed, it is unnecessary to discuss the first.

• 1 Section 17 of the Divorce Act provides that, if it appears to the court that either party to a divorce action holds title to property equitably belonging to the other, the court may compel conveyance thereof to the other party. (Ill. Rev. Stat., ch. 40, par. 18.) Special equities in that property, however, must be pleaded and proved by the party claiming them.

In the recent case of Debrey v. Debrey, 132 Ill. App.2d 1072, 270 N.E.2d 43, the plaintiff alleged no special equities in stock held in her husband's name, but the trial court nevertheless ordered the husband to transfer the title to plaintiff. In reversing that part of the decree, the court on review stated at page 44:

"We do not deem it even debatable but that in order to invoke the provisions of § 17 for a conveyance of property, it is necessary for the plaintiff to allege and prove by evidence or admissions special circumstances or equities warranting such a result." (Emphasis by Court.)

Plaintiff's own testimony clearly shows she did not contribute to the acquisition of the Series H bonds. See Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201.

• 2 Plaintiff's cases cited in support of her position that the court in the instant case was empowered to grant the relief by virtue of the constitutional elimination of distinctions between law powers and equity powers are not in point. In Chrysler Credit Corporation v. M.C.R. Leasing Co., 114 Ill. App.2d 43, 251 N.E.2d 648, the court held that it was proper in a replevin action to enter an injunction in order to aid in arriving at a correct determination of the case. Chrysler involved a question of jurisdiction, whereas the instant case concerns a question of the court's granting relief which was not supported by evidence.

In Douglas v. Papierz, 121 Ill. App.2d 242, 257 N.E.2d 570, the question was whether an adjudication in a mechanic's lien foreclosure suit was res judicata in a contract action where the allegations in the bills of particulars were identical in both cases.

The case of In re Estate of Garrett, 81 Ill. App.2d 141, 224 N.E.2d 654, cited by the plaintiff, supports the defendant's position. The trial judge ordered an accounting in a citation petition. The reviewing court stated that the same court had jurisdiction over citation proceedings and suits for accounting, but because no pleading asked for an accounting the trial court could not grant one.

• 3 Plaintiff-appellee's contention that the defendant is barred from appealing the judgment because he has accepted benefits thereunder is unavailing. Generally, where a party accepts the benefits of a judgment, he will not be allowed to appeal from those portions thereof which are unfavorable to him.

In Boylan v. Boylan, 349 Ill. 471, 182 N.E. 614, a divorce was granted which allowed the wife monthly alimony and attorney fees. The wife accepted the alimony and attorney fees from the husband but appealed the denial of a divorce on her cross-complaint. In dismissing the appeal, the court on review held that the wife accepted the alimony and attorney fees and, therefore, in the ...


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