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Farah v. Farah

JANUARY 6, 1975.

GEORGEANN FARAH, PLAINTIFF-APPELLEE,

v.

ELIE FARAH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Georgeann Farah (plaintiff), wife of Elie Farah (defendant), brought suit for divorce upon grounds of physical and mental cruelty. After hearing evidence, the trial court entered a judgment granting plaintiff a divorce on the ground of physical cruelty and awarding her custody of their child, Georgeann D. Farah, presently about 3 years old. Defendant has appealed.

For better understanding of the contentions of the parties, we will first note certain factual details. The facts appear primarily from plaintiff's own testimony. Defendant appeared at trial only by his attorney. Plaintiff was called as an adverse witness by defendant and the only other witness for defendant was his brother. Plaintiff is a citizen of the United States. Defendant is a citizen of Lebanon. The parties were married in Cook County, Illinois, on January 12, 1971. For some time, defendant, a civil engineer, was employed in Montreal, Canada, and the parties lived there for about 7 months. The child was born in Montreal. In September of 1971, the family took up residence in Chicago in a furnished apartment which they leased. Defendant was employed in Chicago. The parties made an effort to buy a home in a suburban area of Chicago but did not do so for financial reasons.

On the issue of physical cruelty, plaintiff testified that about the middle of January 1972, in their apartment in Chicago, defendant kicked her and struck her with his fists on the face, shoulders, arms and back, all without cause or provocation. In early March of 1972, at the same place, after an argument, also without any reason, he struck her with his fists on the arms and back. Plaintiff also testified that defendant thus caused her pain and suffering and that he threatened her life. Only the child was present on these occasions.

Defendant's brother testified that he is a practicing physician in Illinois. The parties were his house guests in Chicago for five weeks before they moved to their own apartment. Then he visited them often in their home. Plaintiff never told him that defendant had struck her. When asked by counsel for defendant if he had ever seen marks or bruises about her body, he replied that he could not see anything abnormal and "I didn't look for bruises."

In May of 1972, parents and child left on an extended vacation during which they visited Europe and Lebanon. Plaintiff's parents then lived in Greenwich, Connecticut. In June of 1972, the parties returned there. Defendant made a trip from Greenwich to Chicago where he remained for 4 days. He was employed in Chicago until July 4, 1972. Plaintiff testified that during these months of May, June and July 1972, she had no home in Lebanon or in Greenwich but that her home continued to be in Chicago.

On cross-examination, plaintiff testified that she and her husband "lived together as man and wife" while they were on their vacation commencing in May of 1972. This situation continued until July of 1972.

Plaintiff also testified on direct examination that upon their return to Greenwich defendant told her that he would take the child to visit his sister who also lived in Greenwich. Instead, he and the child failed to return. Plaintiff did not know where defendant and the child were. She attempted, unsuccessfully, to find them by going to Chicago and making an inquiry at defendant's place of employment. In a short time she received a cable sent by defendant from Lebanon, expressing regret at her "decision not to join us." During that same month of July 1972, plaintiff was advised that defendant had made available to her a prepaid ticket for her air travel to Lebanon. However, plaintiff never took possession of this ticket.

Despite several attempts by plaintiff, defendant refused to permit her to see the child. She testified that on one occasion defendant told her on the telephone that she should "finish with all the lawyers" because if any lawyer was involved she would never see the baby again. Plaintiff and her American attorney went to Lebanon during August 1972. They attempted to obtain custody of the child but could not do so. Plaintiff testified that defendant then refused to permit her to see the child. She had no knowledge of the exact whereabouts of her child from July 4, 1972, until January of 1973. Plaintiff filed suit in a civil court in Beirut, Lebanon, in which she sought divorce on the ground of cruelty, custody of the child and alimony. Apparently that suit remains pending and undetermined in the Lebanese court.

In connection with the instant proceedings, it should be noted that defendant was personally served with summons at his place of employment at Kano, Nigeria. Defendant filed a special appearance questioning the jurisdiction of the court over his person and a motion to quash service of summons. After a hearing, this motion was denied. Thereupon defendant filed a motion to dismiss the action on the ground of the pending case in Lebanon. (Ill. Rev. Stat. 1973, ch. 110, par. 48(1)(c).) After a hearing, this motion was denied. Defendant filed an answer and the cause proceeded to trial.

In this court, defendant contends that the trial court lacked jurisdiction over the subject matter and jurisdiction over his person; the proof was not adequate to support the divorce on the ground of physical cruelty because the testimony of plaintiff was uncorroborated and the findings of the trial court were thus manifestly against the weight of the evidence; plaintiff's action was barred by condonation as appears from her own testimony so that the court erred in denying defendant an opportunity to amend his answer to allege the affirmative defense of condonation; pendency of the prior action in Lebanon should be respected by this court which should refuse to proceed further on principles of comity; and the doctrine of forum non conveniens is applicable here so that the court should have dismissed the cause on that ground. Plaintiff contends that the court had proper jurisdiction over the subject matter and over the person of defendant; the evidence was sufficient to support the finding of physical cruelty; there was no evidence of condonation; section 48(1)(c) of the Civil Practice Act has no application to other actions pending in foreign countries and the principles of forum non conveniens should not be applied here.

• 1 The first points raised by defendant pertain to the jurisdiction of the trial court both as to subject matter and the person of the defendant. It is quite correct, as defendant asserts, that the trial court could not proceed without jurisdiction over the subject matter and his person. The Illinois Constitution of 1970 vested "* * * original jurisdiction of all justiciable matters * * *" in the circuit courts except for certain exceptions not pertinent here. (Ill. Const. (1970), art. VI, § 9.) This court recently defined jurisdiction of the subject matter as "* * * the power of a particular court to hear the type of case that is then before it." (Davis v. Davis, 9 Ill. App.3d 922, 929, 293 N.E.2d 399, citing Faris v. Faris, 35 Ill.2d 305, 220 N.E.2d 210.) Under established legal principles, "* * * the jurisdiction of courts of equity to hear and determine divorce cases is conferred only by statute" and, in turn, "* * * such jurisdiction depends upon the grant of the statute and not upon general equity powers." Smith v. Johnson, 321 Ill. 134, 140, 151 N.E. 550.

• 2 In Illinois the pertinent statute pertaining to divorce provides that "[t]he circuit courts of the respective counties shall have jurisdiction in all cases of divorce and alimony allowed by this act." (Ill. Rev. Stat. 1973, ch. 40, par. 5.) The statute further requires that every plaintiff reside in the State of Illinois "* * * one whole year next before filing his or her complaint, unless the offense or injury complained of was committed within this State." (Ill. Rev. Stat. 1973, ch. 40, par. 3.) Immediately following this language is a proviso that even where the offense or injury complained of was committed within this State, plaintiff is not entitled to a divorce "* * * unless the plaintiff or the defendant shall have resided in this State for a continuous period of at least six months next before filing his or her complaint." (Ill. Rev. Stat. 1973, ch. 40, par. 3.) This statutory requirement is of the utmost importance because it has been repeatedly held that "[t]he plaintiff's residence in a divorce case for the requisite period is necessary to confer on the court jurisdiction of his case." Davis v. Davis, 9 Ill. App.3d 922, 929, 293 N.E.2d 399, citing McFarlin v. McFarlin, 384 Ill. 428, 51 N.E.2d 520; also People ex rel. Bradley v. McAuliffe, 24 Ill.2d 75, 80, 81, 179 N.E.2d 616.

Thus, the clear issue regarding the juridiction of the subject matter is whether plaintiff or defendant resided in Illinois for the necessary 6-month period prior to January 11, 1973, when plaintiff's complaint was filed in the circuit court. One of the leading Illinois cases on the issue of defining the word "residence" as used in these statutory grants of authority is Berlingieri v. Berlingieri, 372 Ill. 60, 22 N.E.2d 675. The supreme court carefully pointed out that residence and domicile are not synonymous. The word "domicile" is applicable in many situations with particular reference to taxation. On the contrary, the term "residence" as used in this statute "* * * was intended to have its ordinary and commonly accepted meaning." 372 Ill. 60, 62.) Residence does not consist simply of physical presence in any particular locality. It is primarily a matter of intent. "Of paramount importance in determining whether a given place is or is not one's residence is the intent of that person to live there as his permanent home." (Garrison v. Garrison, 107 Ill. App.2d 311, 314, 246 N.E.2d 9.) The issue of ...


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