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Karaskiewicz v. Karaskiewicz





APPEAL from the Circuit Court of Cook County; the Hon. MARGARET G. O'MALLEY, Judge, presiding.


Plaintiff, Lillian Karaskiewicz, whose complaint for divorce alleged that defendant was guilty of "extreme physical and mental cruelty" was awarded a decree of divorce by default. This is an appeal by the defendant from an order of the circuit court denying his motion filed pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 50(5)) to vacate the default decree and to try the complaint as a contested matter. He also appeals from the circuit court's order that he pay plaintiff's attorney $1500 for fees and expenses in connection with this appeal.

Defendant was served with the complaint and summons on January 15, 1975. He appeared pro se at a hearing on January 22, 1975, on plaintiff's motion for temporary alimony and temporary attorneys' fees. During that hearing the following colloquy took place:

"The Court: Do you want to contest the divorce if she wants it?

The Defendant: Yes.

The Court: He represents your wife. If you want to contest the divorce, you are going to have to get somebody to represent you. When did you get the summons?

The Defendant: Early part of this month and within a week.

The Court: He will serve you with notice of default, and if you don't come in on that date, she will get her divorce, and the Court won't listen to you."

The defendant continued to live in the marital home with the plaintiff until at least June 9, 1975.

The defendant did not file an appearance or answer, and on April 16, 1975, the plaintiff obtained her order of default without notice to defendant, and offered proof in support of her complaint. At the conclusion of that hearing, the trial judge, who was not the judge presiding on January 22, granted the plaintiff a divorce and directed plaintiff's attorney to have both parties sign the decree before it was entered, or serve the defendant with notice that the decree was being presented for entry.

On May 5, 1975, plaintiff served the defendant with notice by mail at the marital home that on May 8, 1975, the proposed decree would be presented for entry. The defendant was out of the State between May 5 and May 8 and did not learn of the notice until he returned to the marital home on May 10, 1975. The divorce decree was presented to the court on May 8, with no one appearing on behalf of the defendant, and the decree was signed and entered on May 15, 1975.

On June 9, 1975, the defendant filed a motion to set aside the judgment for divorce, and tendered an answer to the complaint for divorce. In his motion, the defendant alleged he had a meritorious defense, that he had not been informed that the plaintiff intended to obtain a default decree until he returned home from out of State on May 10, 1975, and that he had not believed that his wife was serious in pursuing her complaint since on two prior occasions his wife had retained counsel but had terminated any action prior to the issuance of a divorce decree. In his answer to the complaint, defendant denied the allegations of physical and mental cruelty. A hearing was held before the judge who entered the decree, and the motion to set aside the divorce was denied.

Trial courts should be liberal in setting aside default judgments when, as here, the motion is filed within 30 days of the judgment. (Village of Mundelein v. Turk (1974), 24 Ill. App.3d 223, 321 N.E.2d 191; Keafer v. McClelland (1974), 23 Ill. App.3d 1035, 321 N.E.2d 136.) A meritorious defense and good excuse need not be shown; these are merely factors, as is hardship suffered by the plaintiff, which the court may consider in resolving the more basic issue of whether substantial justice will be done in the event the default is not set aside. (Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App.2d 102, 167 N.E.2d 799.) The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. Accurate Home Supply, Inc. v. Malpede (1973), 12 Ill. App.3d 749, 299 N.E.2d 104.

• 1 For the following reasons, we believe that substantial justice in this case will best be served by vacating the default decree: First, the judge before whom defendant appeared on January 22, 1975, told him the plaintiff's attorney would serve him with notice of default, and that if he failed to respond to the notice, the plaintiff would get her divorce. The defendant may, therefore, have assumed that a default decree ...

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