APPEAL from the Circuit Court of Shelby County; the Hon.
ROBERT J. SANDERS, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:
Plaintiff obtained a default divorce in the Circuit Court of Shelby County on April 11, 1972.
On April 12, 1972 defendant filed a petition to vacate judgment with leave to plead. On April 18, 1972 defendant filed an Amended Motion to Set Aside the Decree for Divorce and supporting affidavit. Plaintiff filed an answer and a counter-affidavit denying the allegations in defendant's affidavit.
On the basis of the pleadings and the affidavits, the trial court denied the motion to set aside the decree for divorce. This appeal is from the denial of the motion.
Since the affidavit of defendant alleged some specific facts which, if true, would require setting aside of the decree, it was error to deny the motion without a hearing.
The cause is remanded for the trial court to conduct a hearing to determine whether or not the material allegations set forth in defendant's affidavit are true. Since this case involves the welfare of minor children, at such hearing any reasonable doubt should be resolved in favor of a hearing on the merits.
EBERSPACHER, P., J., concurs.
Mr. JUSTICE GEORGE J. MORAN dissenting in part:
I believe that this case should be reversed and remanded for a hearing on the merits rather than for a hearing to determine whether or not the material allegations set forth in defendant's affidavits are true.
It is undisputed that the default divorce decree in this case was taken against the defendant on April 11, 1972, and that she filed a petition to vacate it the next day. Her petition and affidavit stated many reasons why the default should be set aside, including the statement that she talked with the plaintiff on April 10, 1972, and he told her that he could not be in court at the hearing which was set for April 12, 1972, because he had to return to Georgia on that date.
In his counteraffidavit, the plaintiff admitted that he talked to the defendant at about 6:30 P.M. on April 10, 1972 "to advise her that he could not be in court for the hearing set for April 12, 1972 because he had to return to Georgia. The undersigned states that the only conversation was with regard to the matter of the non-support petition pending. No discussion was had about the divorce case that was pending." It is undisputed, then, that plaintiff did talk to his wife on the day before the divorce was taken and did advise her that he could not be in court for the hearing set for April 12, 1972. It is also undisputed that he never told his wife at this time of his intention to take a default divorce on the next day. In my opinion, this would establish constructive fraud on plaintiff's part without question.
The decree gave plaintiff complete custody of two minor children of the parties and found that another child born to the defendant on the 26th day of October, 1971, was born out of wedlock. The trial court did vacate this latter finding after the defendant filed her motion to vacate.
Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, held that the determinative factor in awarding custody of a minor child is the best interest of the child. "The guiding star is and must be, at all times, the best interest of the child." The court went on to say that it is usual in cases ...