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Anderson v. Anderson





APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.


Rehearings denied November 4, 1976.

This is an appeal by the defendant, Katina Anderson, from a decree ordering the partition of the residence occupied by her, and owned by her estranged husband and herself as tenants-in-common.

The Andersons were married in 1965. They purchased the residence in 1969 and resided in it until 1971. In October of that year the plaintiff, Frank Anderson, left the marital home and has never returned. Mrs. Anderson obtained a decree for separate maintenance in April 1974, and in June the plaintiff filed this suit for partition.

The trial court granted the partition and found in its decree that each party was entitled to one-half of the property and awarded Mrs. Anderson $5,000 from the proceeds of the sale for her homestead rights. The court appointed a commissioner to partition the premises. In a subsequent petition to modify the decree, Mrs. Anderson protested that the appointment of the commissioner was in violation of the Constitution of Illinois. The court refused to vacate the appointment.

Mrs. Anderson contends that she cannot be deprived of her home by an abandoning husband unless he provides her with a suitable, substitute home; or, in the alternative, if she must leave her present domicile, that she should receive the full homestead exemption of $10,000. She also renews her contention that appointing a commissioner was improper because of the constitutional prohibition against fee officers in the Illinois judicial system.

The plaintiff argues that the defendant should not be permitted to raise the first two contentions because she failed to raise them in her motion to modify the decree and cites Supreme Court Rule 366 (1)(iii) and Matthews v. Stewart Warner Corp. (1974), 20 Ill. App.3d 470, 314 N.E.2d 683, in support of this argument.

There is no Rule 366(1)(iii). However, there is a Rule 366(b)(2)(iii) (Ill. Rev. Stat. 1975, ch. 110A, par. 366(b)(2)(iii)) and it states that a party may not urge as error on review, any point, ground or relief not specified in his post-trial motion. But, this rule applies only to jury cases and the present case did not involve a jury. For the same reason, the plaintiff's reliance on the Matthews case is misplaced. The applicable rule for non-jury cases is Rule 366(b)(3)(ii) (Ill. Rev. Stat. 1975, ch. 110A, par. 366(b)(3)(ii)), which states: "Neither the filing of nor the failure to file a post-trial motion limits the scope of review." We hold, therefore, that the defendant can raise the two contentions and we will consider them in order.

• 1, 2 The first of these is that section 16 of the Married Women's Act bars the partition of the parties' single-family home because it would result in her unwilling eviction without another home being provided for her by her husband. The object of partition is to enable those who own property as joint tenants or as tenants-in-common to sever their interests so that each may take possession of his separate estate. Generally, in the absence of special equities, one owning land in common with another has the absolute right to partition. (Davis v. Davis (1970), 128 Ill. App.2d 427, 262 N.E.2d 788.) The motive for partition is immaterial. Heldt v. Heldt (1963), 29 Ill.2d 61, 193 N.E.2d 7.

The statute upon which the defendant relies states:

"Neither the husband nor wife can remove the other * * * from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family * * *." (Ill. Rev. Stat. 1973, ch. 68, par. 16.)

The same contention was raised and rejected in La Placa v. La Placa (1955), 5 Ill.2d 468, 126 N.E.2d 239. In La Placa, which involved a dispute between a husband and wife over real estate that they owned as tenants-in-common, the court stated:

"[W]e have held that even the person entitled to the homestead estate cannot prevent partition by a cotenant, because to let him do so would in effect enlarge his estate and inequitably deprive the cotenant of the benefits of the land. [Citation.] The plaintiff suggests, however, that partition without her consent is forbidden by section 16 of the Married Women's Act * * *. * * * Assuming that it applies to a partition of the premises, we have held that this section * * * does not place an unconditional ban against partition, but at most requires that the spouse be awarded a monetary equivalent of whatever homestead interest she may possess." (5 Ill.2d 468, 470-71.)

The defendant concedes that La Placa holds that under facts similar to those in this case a partition suit can be maintained, but she asks us not to follow that decision. This we cannot do. It is not within our authority to overrule the Supreme Court or to modify its decisions. Belden Manufacturing Co. ...

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