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Sidwell v. Sidwell

MAY 22, 1975.

DORIS SIDWELL, PLAINTIFF-APPELLEE,

v.

ROY SIDWELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cumberland County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.

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

Rehearing denied June 17, 1975.

In 1964, the parties sought a divorce from each other. They have been in court almost continuously since then. This is the third appeal. A brief review of the history of this litigation will be useful to place the parties' contentions in perspective.

The wife filed a complaint for divorce in 1964. The husband filed a counterclaim. The trial court denied a divorce to either. The wife appealed and this court reversed and remanded. Sidwell v. Sidwell, 75 Ill. App.2d 133, 220 N.E.2d 479.

After remandment, the trial court again denied the wife a divorce. However, the husband obtained a divorce in Arkansas in 1967. In 1968, Mrs. Sidwell filed suit seeking, among other requests, to settle property disputes, rights to alimony and attorneys fees. She had also requested such relief in the first complaint in 1964. Mrs. Sidwell's complaint was dismissed, upon Mr. Sidwell's motion. She appealed. In Sidwell v. Sidwell, 132 Ill. App.2d 1055, 271 N.E.2d 115, this court held that she was entitled to have adjudicated her rights arising out of the dissolution of the marriage.

Other issues were involved in those appeals but are not pertinent to the resolution of this case.

Subsequent to our reversal and remandment on the second appeal, Mrs. Sidwell filed her amended complaint. In that complaint she alleged special equities in defendant's property and requested conveyance under section 17 of the divorce act (Ill. Rev. Stat. 1971, ch. 40, § 18). She also requested alimony under section 18 (Ill. Rev. Stat. 1971, ch. 40, § 19) and attorneys fees under section 15 (Ill. Rev. Stat. 1971, ch. 40, § 16).

Defendant answered and included in his answer was a demand for jury trial. Plaintiff, Mrs. Sidwell, moved for summary judgment. Defendant did not reply to this. The court granted summary judgment on the special equities claim. He ordered defendant to convey to his ex-wife 125 acres of farmland, title to which had been solely in defendant's name. This occurred on July 21, 1972, at which time the court also struck defendant's jury demand. Other questions were reserved.

On March 4, 1974, the court heard evidence in relation to attorneys fees and awarded $20,000 to the wife. The wife at that time waived her alimony claim.

Defendant husband has appealed, raising these issues: (1) Whether the Arkansas court which granted the divorce had jurisdiction over the property claims, thereby excluding Illinois courts' jurisdiction; (2) Whether summary judgment on the special equities claim was improper; (3) Whether defendant has a right to jury trial on the issues raised in the complaint; (4) Whether the attorneys fees were improper and excessive; (5) Whether the court's finding of special equities was against the manifest weight of the evidence.

In the second Sidwell appeal, this court said:

"The wife, in her proposed amended complaint, alleges that the husband secured an Arkansas divorce. As the pleadings now stand, the parties are committed to the validity of the Arkansas divorce. Upon the authority of Schwarz [Schwarz v. Schwarz, 27 Ill.2d 140, 188 N.E.2d 673] the wife may bring an action for the determination of equities in property and of alimony and attorneys fees where the marital status has been determined by a valid ex parte foreign decree, but such latter court was without personal jurisdiction to determine equities in property or alimony.

* * * The order of the trial court in denying the wife leave to file an amended complaint seeking a division of the property, alimony and attorney fees is reversed and this cause is remanded with direction that the motion to file such amended complaint be granted." (Sidwell v. Sidwell, 132 Ill. App.2d 1055, 1058, 271 N.E.2d 115, 118.)

After remandment, defendant contended in the trial court, and contends here, that plaintiffs complaint should nonetheless have been dismissed because the Arkansas divorce was not, in fact, ex parte. He bases his argument on a special appearance by the wife [defendant in the Arkansas action] contesting the jurisdiction of the Arkansas court on the grounds that a similar action was pending in Illinois. He would have us find that this was a general appearance by his wife, which ...


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