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Hall v. Hall

OCTOBER 22, 1973.

DELORES I. HALL, PLAINTIFF-APPELLANT,

v.

JAMES W. HALL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD PLUSDRAK, Judge, presiding.

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

This is an appeal from an order of May 24, 1972, vacating that part of a divorce decree dealing with the property rights of the parties. The decree was entered on January 21, 1972. The defendant filed a petition for relief from the decree on March 23, 1972. The plaintiff appeals from the order vacating part of the decree.

The plaintiff and defendant were married in 1960 in Nevada. There were no children of the marriage. The plaintiff filed a complaint for divorce in Cook County on April 7, 1971, alleging as her ground desertion by the defendant. The defendant, who was personally served with process and represented by counsel, filed his answer on May 21, 1971. On November 30, 1971, the case was set for trial by Judge Hunter on the following January 17. On January 17, 1972, the case was assigned for trial to Judge Plusdrak. After a hearing at which neither the defendant nor his attorney appeared, a divorce decree was entered. Besides providing for the dissolution of the marriage, the decree ordered the defendant to sign a quit claim deed transferring to the plaintiff his rights in certain real property in Florida. The decree further provided that if the defendant failed to execute a deed within 30 days, the plaintiff do so for him.

On March 23, 1972, the defendant filed a petition requesting the court to vacate the decree of January 21, 1972. A response to the petition was filed by the plaintiff on April 6, 1972. The defendant filed an amended petition on April 25, 1972, and a response was filed by the plaintiff on the same day. The amended petition alleged that the defendant's attorney was told at a hearing on the plaintiff's motion of May 4, 1971, to enjoin the defendant from taking any action with respect to the Florida property, that the plaintiff's attorney would notify him of any further proceedings in the case. It further alleged that neither the defendant nor his attorney had received any notice of further proceedings or of the final decree. Finally, it alleged that on March 20, 1972, the defendant's attorney received a call from the defendant, who was in Kentucky and who said that the plaintiff had called him there to inform him that the decree had been entered and that the property was hers.

The court held a hearing on the amended petition and response and vacated that part of the decree which pertained to the Florida property. The court set a date for hearing on the respective rights of the parties in the Florida property. The court did not vacate that part of the decree of divorce dissolving the marriage. The plaintiff had remarried since the decree was entered.

The plaintiff first argues that the defendant's petition is defective in that it contains no allegations with respect to the rights of the parties in the Florida property. We find sufficient, however, the references in paragraphs four and six of the amended petition to raise the issue of property rights in this cause. In passing, we note that the plaintiff's attorney, in the decree he prepared for the trial judge in the original divorce hearing, failed to allege that the property was to be deemed alimony in gross to the plaintiff, although that was apparently the understanding of the judge.

• 1 The plaintiff next argues that the trial judge entered the order on May 24, 1972, without hearing any evidence. The order recites that the court was "fully advised in the premises," which has been held, in the absence of a report of proceedings, to support the findings recited. (Smith v. Pappas, 112 Ill. App.2d 129, 251 N.E.2d 390.) In the case before us, there is a report of proceedings at the hearing on the defendant's petition. The report reveals that at the hearing, both the plaintiff's and the defendant's attorneys made representations of fact. The plaintiff raised no objection to the manner of presenting such statements. She cannot now, therefore, complain that the court did not in fact hear evidence.

• 2 A petition filed under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) is a method for a party to bring to the attention of the court rendering judgment matters of fact, not appearing of record, which, if known to the court at the time judgment was entered, would have prevented such rendition. (In re Estate of Wayne, 133 Ill. App.2d 565, 273 N.E.2d 720.) The petition represents a balancing of the policy in favor of the stability of judgments and the obligation of presenting a timely defense against the policy of allowing every litigant a day in court to insure that justice is done. Burkitt v. Downey, 102 Ill. App.2d 373, 242 N.E.2d 901.

• 3, 4 Generally, a petitioner must allege ultimate facts in his petition which reveal both a meritorious defense in the original action and the exercise of due diligence in presenting such a defense. (Union Oil Co. of California v. Lang, 132 Ill. App.2d 658, 270 N.E.2d 609.) The defendant's petition simply states that he has a meritorious defense. Judgment was, however, entered in an ex parte proceeding; it was not a default judgment against the defendant, who had filed an answer to the complaint for divorce. He denied that the Florida property was purchased with joint funds, and he asserted rights in the property. To require the defendant in this situation to reiterate his contentions in the body of the petition is to exalt form over substance. The petition under section 72 is addressed to the equitable powers of the court. Thus, where a petition follows an ex parte proceeding and alleges the existence of a meritorious defense, we will look to the answer on file to satisfy the procedural requirement of pleading such defense. (Storm v. Ben-Lee Motor Service Co., 11 Ill. App.3d 516, 298 N.E.2d 315. See also Clark v. Brown, 121 Ill. App.2d 280, 257 N.E.2d 565.) A petitioner who makes the bare allegation of the existence of a meritorious defense is, of course, then limited at any proceeding on the petition to that defense raised in the answer on file.

• 5 The next question is whether the petition alleges the defendant's exercise of due diligence. The courts have considered this requirement from two angles; the diligence in presenting the section 72 petition promptly and the diligence in presenting the meritorious defense in the original action. (Riley v. Unknown Owners, 6 Ill. App.3d 864, 286 N.E.2d 806.) There is no question that the defendant was diligent in filing his petition. He alleges that it was filed within three days of learning of the judgment. It was filed about two months after entry of the judgment.

• 6 The facts alleged in the amended petition concern the failure of the plaintiff's attorney to notify the defendant's attorney or the defendant of the proceedings subsequent to the hearing on May 4, 1971. Mere failure of a litigant to be notified has been found not to constitute an excuse for his failure to appear. (Groves v. Sebastian, 98 Ill. App.2d 347, 240 N.E.2d 192.) It is the duty of the litigant to follow the progress of his case. (Crane v. Crane, 5 Ill. App.3d 763, 283 N.E.2d 922.) The facts alleged in the petition are insufficient to establish the defendant's diligence.

• 7, 8 But this is not an end to an examination of the sufficiency of the petition. Justice and good conscience may require that a judgment be set aside even though there has been a lack of due diligence. (Burkitt v. Downey, 102 Ill. App.2d 373, 242 N.E.2d 901.) The conduct of the plaintiff may be considered in determining if justice would be served by vacating the judgment, even when the defendant's conduct does not warrant such action. The plaintiff in the case before us made no attempt to notify the defendant of the judgment of the court until more than 30 days had passed. This inaction makes the plaintiff more vulnerable to a petition for relief from the judgment. Johnson-Olson Floor Coverings v. Branthaver, 94 Ill. App.2d 394, 236 N.E.2d 903.

• 9 The defendant's attorney argues that the plaintiff's attorney promised to notify him of proceedings subsequent to the hearing of May 4, 1971. Regardless of whether this arrangement had been made, we agree with the defendant's contention that the plaintiff was obliged to give notice to the defendant of entry of the final decree. As authority for this proposition, the defendant refers us to the former ...


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