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Goldberg v. Goldberg

MARCH 12, 1975.

MORRIS GOLDBERG, PLAINTIFF-APPELLEE,

v.

RINA GOLDBERG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BENJAMIN J. KANTER, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

On December 8, 1972, Morris Goldberg (plaintiff) filed a complaint for divorce in the Circuit Court of Cook County. It alleged that in September, 1972, his wife Rina (defendant) had left their marital domicile in Illinois, deserting plaintiff and taking their 6-year-old son and all their possessions to the country of Israel. At the time the complaint was filed, defendant was residing in Israel. Service was made by publication.

Defendant obtained counsel in Illinois and a special limited appearance was filed, followed shortly thereafter by a motion to have plaintiff's complaint dismissed pursuant to section 48(1)(c) of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 48(1)(c).) The motion to dismiss was denied. The trial court then ruled that by presenting the motion to dismiss under section 48, defendant had made a general appearance and submitted to the jurisdiction of the court.

Defendant next moved to have plaintiff's complaint stricken for failure to state a cause of action. This motion was also denied, but the court instructed plaintiff to file a bill of particulars. This was never done. A motion to withdraw was filed by defendant's attorney, defendant and her Israeli counsel being notified of the motion by telegram. The motion was allowed. Eventually, an order of default was entered and the case was heard as an uncontested divorce proceeding. After the presentation of evidence on behalf of plaintiff, a divorce decree was granted in plaintiff's favor giving him custody of the child and denying defendant alimony.

Defendant appeals to this court claiming that:

(1) The trial court erred in denying her special and limited appearance;

(2) The trial court should have granted the motion to dismiss on the ground that a prior action was pending in Israel;

(3) Plaintiff's complaint failed to state a cause of action and further that the proof did not conform to the pleadings; and

(4) The trial court was in error when it allowed counsel for defendant to withdraw.

• 1, 2 Considering defendant's first contention, we find that the trial court was correct when it ruled that defendant had submitted herself to the jurisdiction of the court. Defendant states that any in personam orders entered against her were void since service was by publication. This is generally true as noted in People ex rel. Hartshorn v. Hartshorn, 21 Ill. App.2d 91, 99-100, 157 N.E.2d 563, and Gleiser v. Gleiser, 402 Ill. 343, 345-346, 83 N.E.2d 693, both cited by defendant in her brief. However, defendant here filed a special limited appearance and before any determination had been made as to the jurisdictional question, moved to have the complaint dismissed pursuant to section 48 of the Civil Practice Act. It is conceded by defendant that "generally a special and limited appearance and a motion to dismiss [under section 48] constitute a general appearance," but she argues that here the subsequent motion only acted to set forth additional facts showing that there was no jurisdiction. No authority is cited and this court has not found anything which supports this position.

The Civil Practice Act provides as follows:

"Special Appearance:

(1) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.

(2) If the reasons for objection are not apparent from the papers on file in the case, the special appearance shall be supported by affidavit setting forth the reasons. In ruling upon the objection, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact. No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect ...


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