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O'connell v. O'connell

APRIL 10, 1975.

MARSHA JOYCE O'CONNELL, PLAINTIFF-APPELLANT,

v.

MICHAEL JOHN O'CONNELL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McLean County; the Hon. KEITH E. CAMPBELL, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the order of the trial court denying a decree for divorce after a hearing upon complaint and answer.

The order, in the form of a docket entry, is:

"[T]he Court having examined the pleadings and Answer of the Defendant admitting the allegations of grounds for divorce and Defendant's objection to testimony on grounds because of his admission and the Plaintiff's willingness to accept the admission without further proof and the conduct of the Plaintiff and the Defendant during the course of the hearing amounts to an agreement not to defend and collusion of the parties to obtain a divorce: IT IS THEREFORE ORDERED that the divorce be and the same is hereby denied."

In addition to jurisdictional matters, the complaint alleged mental cruelty and prayed for custody and support of a daughter, aged 2. The praecipe for summons directed that the summons be held. As shown by the clerk's file stamp, defendant's entry of appearance by an attorney was filed at the same date and hour as the complaint. An answer was filed on August 30, and the matter was heard on the same date.

The answer denied the allegation that plaintiff had conducted herself as an affectionate, kind wife but admitted all others, including the allegations of mental cruelty. At the hearing on complaint and answer, defendant's counsel was present. The record does not disclose whether defendant appeared.

Plaintiff testified that she had been a dutiful, affectionate wife and to a course of conduct by defendant which would establish that she suffered mental wrong in the context of mental cruelty over a substantial period of time. She also testified as to an oral agreement that she would retain the household furniture and the lease of the apartment and that she would waive alimony. She was cross-examined concerning her understanding of such waiver.

At the hearing upon the initial questions concerning the acts of mental cruelty defendant's counsel stated that such conduct was admitted in the answer. Colloquy in the record indicates that this was considered a statement rather than an objection. Subsequently, defense counsel objected to similar testimony upon the grounds of relevance. The objection was without merit and was properly overruled.

The trial court denied plaintiff's post-trial motion, which urged that the finding of collusion is not supported by the record, and is against the manifest weight of the evidence, and that the findings of the court do not support the judgment as a matter of law. Such issues are presented on appeal.

The collusion noted in the order does not come within the sense of the statute (Ill. Rev. Stat. 1971, ch. 40, par. 11). *fn1 The sense of such provision is that the complaining party agreed or consented to the "injury complained of." Nothing in the record suggests that the course of conduct presented as mental cruelty was planned or agreed upon by the plaintiff.

• 1-3 Illinois has long held that parties could not obtain a divorce by agreement or by the parties combining to procure a divorce. It has been generally said that the State has an interest in preserving the marital relation. It is also important that the parties be barred from any benefit of fraud upon the court. (Danforth v. Danforth, 105 Ill. 603.) That opinion determined that it was error to refuse to permit the wife to obtain the vacation of a decree of divorce when it appeared that her attorney, without her knowledge, signed in her name an agreement whereby she would receive $29,000 deposited in a bank upon producing at such bank a decree of divorce. The court construed the document as an agreement that a divorce should be granted, or that it would not be opposed. In Belz v. Belz, 33 Ill. App. 105, the husband alleged desertion. The wife answered and consented to a default. The court interrogated the husband's solicitor who testified that the wife had requested that he procure a divorce, presenting a written consent of the husband. Counsel advised the wife that she had no grounds for divorce. She thereupon sent the husband to the same lawyer who proceeded to file the complaint. The court noted:

"There was here a common design followed up by both parties with the intent that the desired result should be produced one way or another." (33 Ill. App. 105, 109.)

A dismissal on the grounds of collusion was affirmed.

Collusion was discussed in Pressney v. Pressney, 339 Ill. App. 371, 90 N.E.2d 119. In a further context the court commented upon those cases wherein the record shows charges and counter-charges which, after negotiation, were withdrawn and the case was heard as in default. The court there said that when the parties abandon pleadings containing allegations which, if proven, would bar divorce, the court will inquire ...


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