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Pennington v. Pennington

MARCH 20, 1975.

WILLIAM PENNINGTON, PLAINTIFF-APPELLANT,

v.

LOUISE PENNINGTON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant, Louise Pennington, filed a petition to vacate a 1956 divorce decree obtained by the plaintiff, William Pennington. The trial court found that plaintiff had committed a fraud upon the court by a false affidavit of non-residence, and entered an order vacating the decree and dismissing plaintiff's complaint for divorce with prejudice. Plaintiff appeals, contending that the trial court was without jurisdiction to grant relief after more than 2 years from the entry of the decree and that the affidavit of non-residence fully complied with the statutory requirements for service by publication on a nonresident defendant. The facts follow.

On April 2, 1956, plaintiff filed a complaint for divorce against defendant, alleging desertion. The affidavit of non-residence executed by plaintiff's attorney was also filed and stated: "[D]efendant resides out of this State and on due inquiry cannot be found so that process cannot be served upon Louise Pennington that upon diligent inquiry her place of residence cannot be ascertained; and affiant further states that the last known place of residence of such defendant is 48 Mooreland Street, Springfield, Massachusetts." Defendant did not appear and a default decree for divorce was entered on May 31, 1956.

On October 11, 1973, defendant filed the instant petition to vacate the divorce decree, alleging that she had never received notice, either actual or constructive, of the filing of the divorce complaint. Defendant alleged that at the time of the affidavit of non-residence plaintiff knew, or reasonably could have known, the last known address of defendant; that the affidavit listed her as having resided at an address which plaintiff knew was not and had never been her residence; that plaintiff communicated with defendant prior and subsequent to the entry of the decree but never informed her of the decree; that defendant had a meritorious defense and did not learn of the entry of the decree until October 1972.

At a hearing on the petition defendant testified that she and plaintiff were married in Florida on January 5, 1935, and that their marriage was punctuated by frequent absences of plaintiff. In 1946 plaintiff left the family home in Massachusetts and went to Florida where he married a woman named Viola Tuttle. In 1947 defendant forgave plaintiff and he returned to the family home. The marriage to Viola Tuttle was annulled in 1948. In 1955 plaintiff again left defendant and moved to Chicago, Illinois. Defendant met briefly with plaintiff when she passed through Chicago in 1959, at which time he was with another woman, but he did not identify the woman as his wife. In 1963 defendant saw plaintiff at his mother's funeral in Massachusetts, at which time plaintiff was accompanied by the same woman, but again did not identify her as his wife. In 1962 and 1965 plaintiff returned for visits of one or two months' duration with defendant. He was alone on these occasions. Defendant stated that in his communications with her before and after May 31, 1956, plaintiff never informed her that he was either seeking or had obtained a divorce. She first learned in October 1972 that a decree had been entered when her application for Social Security benefits was rejected.

Defendant testified that she is presently living at 220 White Street in Springfield, Massachusetts, where she has lived since March 1, 1956, except for a period in 1965 when she lived in Ludlow, a suburb of Springfield. Defendant further stated that she "believed" that on April 2, 1956, she was living in a house on Montmorency Street in Springfield, and she recalled that plaintiff had written to her and telephoned her at that residence. She denied ever having lived at 48 Mooreland Street in Springfield, or that plaintiff had ever visited her at that address. On cross-examination defendant admitted that she was aware 11 years ago that plaintiff was living with another woman in Chicago whom he held out to be his wife. She added, however, that she had never had any actual knowledge of the entry of a divorce decree. Defendant stated that prior to moving to 220 White Street in Springfield, Massachusetts, on March 1, 1956, she had lived at 50 Highland Park, Thompsonville, Connecticut.

Defendant identified four letters received in evidence as Plaintiff's Exhibits 1, 2, 3 and 4. Exhibit 1 is a letter from defendant to plaintiff dated January 30, 1963, in which she states that she is wrong for going behind the back of plaintiff's wife in talking to plaintiff and that plaintiff should try and be happy with Lisa. Exhibit 2 is a letter from defendant dated December 13, 1959, which commenced with "My dear Bill and Mrs. Pennington," and states that she realizes she was wrong in calling plaintiff on the telephone because he is no longer her husband. Exhibit 3 is an undated note on the back of a typewritten copy of a declaration addressed "to whom it may concern" and containing defendant's name, setting forth her address as 50 Highland Park, Thompsonville, State of Connecticut. It states that defendant is agreeable to any action for divorce that plaintiff may commence against her in the State of Illinois and does not intend to contest said action. The declaration contains a form of acknowledgment to be notarized with the date of March 6, 1956. Defendant states in the handwritten note that she is sending the declaration copy "in regards to the divorce," and that she will forward a signed and notarized original if the copy meets with plaintiff's approval. Defendant further writes that she hopes plaintiff will do nothing before the impending marriage of their daughter Bredine, for she knows nothing of the agreement between them and is expecting plaintiff to attend her marriage ceremony. Exhibit 4 is an envelope and an accompanying letter which defendant sent plaintiff via general delivery in Chicago. Although the letter is undated, the envelope bears a postmark indicating its arrival in Chicago on August 30, 1956, and gives defendant's return address as 50 Highland Park, Thompsonville, Connecticut.

Bredine Carpenter, daughter of plaintiff and defendant, testified that plaintiff absented himself from the family home for extended periods of time. She saw him in Chicago in 1958 when she and defendant were passing through the City and again at the funeral of plaintiff's mother in Massachusetts in 1963. On both occasions plaintiff was with another woman but he did not identify her as his wife. Bredine Carpenter saw plaintiff in 1962 and 1965 when he returned for brief visits with defendant. She further testified that in 1953 plaintiff was living at home with her and defendant at 42 Montmorency Street in Springfield, Massachusetts. In 1963 plaintiff visited defendant at the latter's residence at 220 White Street in Springfield. Later, Mrs. Carpenter purchased the White Street residence from defendant. In 1965 plaintiff again visited defendant who was then living in Ludlow, Massachusetts. Mrs. Carpenter stated that plaintiff never told her, nor did she ask, about a divorce from defendant.

Samuel Pennington, son of plaintiff and defendant, testified that plaintiff visited defendant at the latter's home in 1957, at which time he was in the company of another woman whom he introduced as Nellie Coons, but did not identify her as his wife. The witness further stated that plaintiff never informed him that he was divorced from defendant.

Plaintiff testified that he has lived in Chicago with his present wife Lisa for the last 18 years. In 1959 defendant wrote, stating that she was planning to seek a divorce. In 1963 Lisa Pennington accompanied plaintiff to his mother's funeral in Massachusetts, where he introduced her to his children, Samuel and Bredine. He stated that on at least two occasions he overheard telephone conversations between Lisa Pennington and defendant. He further testified that prior to filing the complaint for divorce he learned from his associates in the trucking business who knew defendant's relatives, that defendant was living at 48 Mooreland Street in Springfield, Massachusetts. Although he had never visited her at that address he knew that she had always lived in the Springfield area. He stated on cross-examination that he could not recall who told him defendant was living on Mooreland Street. He admitted that he received Exhibit 3 which listed the address of 50 Highland Park, Thompsonville, Connecticut, but could not recall whether he took any steps to ascertain if that was defendant's current address.

At the conclusion of the testimony the trial court made an oral finding that plaintiff had committed fraud on the court by filing a false affidavit of non-residence in that he should have known the defendant's address when the affidavit was filed. An order was entered which vacated the decree for divorce and dismissed plaintiff's divorce complaint with prejudice.

I.

• 1 Plaintiff contends that it was mandatory for defendant to petition the court for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72) within 2 years of the entry of the decree, and that the court therefore erred in vacating the decree after a lapse of 17 years. Section 72, which abolished the common-law remedies for relief from final orders, judgments and decrees in civil cases, provides a unified procedure for such relief. The 2-year limitation contained therein applies only where the order, judgment or decree is challenged as erroneous or voidable. By its own terms it has no application to cases where the order, judgment or decree is challenged as void (Ill. Rev. Stat. 1973, ch. 110, par. 72(6)). Where the order, judgment or decree is challenged as void it may be attacked at any time. (Lebanon Trust & Savings Bank v. Ray (1973), 10 Ill. App.3d 345, 293 N.E.2d 623.) Where a defendant has not been served with process as required by law and has not entered an appearance, the court has no jurisdiction of the defendant and a judgment entered against him is void, and a decree or judgment obtained by fraud may be attacked at any time. Hustana v. Hustana (1959), 22 Ill. App.2d 59, 159 N.E.2d 265.

In the instant case, defendant has alleged in part that plaintiff committed a fraud upon the court in the original proceeding by filing a false affidavit of non-residence; that the court never acquired jurisdiction over defendant; and that the decree so entered is void. Defendant specifically alleged that plaintiff knew or could have known her last address and that the last known address in the affidavit was one which plaintiff knew was not and had never been defendant's place of residence. The trial court found that plaintiff filed a false affidavit of non-residence in that he should have known defendant's address ...


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