APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant, Clyde Lemons, from the entry of an order of the circuit court of Cook County denying defendant's petition to vacate a finding by the trial court that defendant was in arrears on certain child support payments stemming from a divorce decree entered between defendant and plaintiff, Jessie Lemons, and ordering defendant to pay plaintiff's attorney's fees in the amount of $750.
Two issues are presented for review: (1) whether the trial court erred in precluding defendant from collaterally attacking the validity of the divorce decree upon application of the doctrine of res judicata; and, (2) whether the award of attorney's fees was excessive.
On March 19, 1971, Jessie Lemons filed a complaint for divorce seeking dissolution of her marriage to defendant, Clyde Lemons, alleging inter alia that she and defendant were lawfully joined in marriage at Jackson, Mississippi on February 3, 1954, and thereafter lived and cohabited together until September 12, 1969. Three children were born to the parties as a result of this union. On August 19, 1971, defendant appeared generally and filed a countercomplaint for divorce alleging that at the time of his marriage to Jessie Lemons she had been lawfully married to one Hoover Timothy C. Jakes and, accordingly, defendant concluded that his marriage to plaintiff was void ab initio. On August 31, 1971, defendant also filed a petition to strike plaintiff's complaint on the grounds that she lacked legal capacity to sue and that the trial court was without jurisdiction over the subject matter of the action. Attached to this petition was a certified copy of a divorce decree obtained by one "Jessie Lee Jakes" and purporting to dissolve her marriage to Hoover Timothy C. Jakes. This decree is dated September 2, 1954, approximately seven months subsequent to the date of plaintiff's marriage to defendant.
On September 9, 1971, plaintiff filed an answer to defendant's petition to strike in which she admitted that she had been married to Hoover Timothy C. Jakes at the time in which she was purported to have married defendant. However, as an "affirmative defense" plaintiff alleged that she had been 16 years of age at the time she entered into a "ceremonial" marriage to Jakes; that due to parental intervention this union had never been consummated; that Jakes, a serviceman, departed for duty in the Republic of South Korea on the day following the marriage ceremony; and, that Jakes' family subsequently received notification from the United States Government that Jakes had been listed as missing in action and presumed dead. Plaintiff further alleged that she, too, believed Jakes to be dead and, after fully disclosing these facts, married defendant, Clyde Lemons, and cohabited with him openly and notoriously from 1954 to 1969. *fn1 Plaintiff concluded that divorce removed the impediment which had theretofore voided her marriage to defendant and that their subsequent cohabitation in the State of Mississippi would, under the common law of that State, recognize and validate their marriage.
The matter came on to be heard on March 30, 1972, on defendant's motion to dismiss the "counterclaim" theretofore filed and, pursuant to this motion, the "counterclaim" was dismissed. No appeal was taken from this order.
On June 8, 1972, the parties stipulated that the cause be heard "as a default matter" and a decree of divorce was entered on plaintiff's complaint. The decree contained an express finding of the trial court:
"3. That the parties were lawfully joined in marriage at Jackson, Mississippi, on February 3, 1964 [sic], and thereafter lived and cohabited together as Husband and Wife until on or about the 12th day of September, 1969."
Defendant's brief before this court characterizes this document as a "consent decree." Again, no appeal was taken from entry of this decree. Appended to this decree was a stipulation and agreement regarding a property settlement which directed, inter alia, that defendant pay plaintiff the sum of $150 per month in child support.
Approximately two years hence, defendant was found to be $1,100 in arrears on these payments and was ordered to comply with the decree.
On March 10, 1976, plaintiff filed a petition to modify the decree and for a rule to show cause why defendant should not be held in contempt of court alleging a total failure by defendant to pay the stipulated $150 per month in child support now amounting to an arrearage of $2,650. Defendant answered this petition and denied the alleged arrearages. Defendant also asserted as an "affirmative defense" that his marriage to plaintiff was void ab initio. Plaintiff moved to strike this "affirmative defense" on the ground that the doctrine of res judicata barred further consideration of the issue. The trial court granted plaintiff's motion to strike and modified the decree to increase the child support payment, ordered payment of the arrearage on an installment basis and further assessed attorney's fees in the amount of $750. Defendant thereafter moved to vacate this order and from the denial of this motion to vacate defendant currently appeals.
Defendant initially contends that the trial court erred in precluding him from collaterally attacking the validity of the divorce decree upon application of the doctrine of res judicata. Defendant's position is grounded upon the notion that he may challenge the decree or divorce at any time and in any court because it is void for lack of jurisdiction in the trial court to entertain plaintiff's complaint.
1, 2 At the outset it may be noted that there can be no question as to whether the circuit court of Cook County was possessed of jurisdiction over the subject matter of this case. This court has defined jurisdiction over the subject matter as the power of the particular court to hear the type of case that is before it. (Davis v. Davis (1973), 9 Ill. App.3d 922, 293 N.E.2d 399.) Jurisdiction of the subject matter does not depend upon the sufficiency of the pleadings, or on the validity of the demand, the regularity of the proceedings, or the correctness of the decision. (See 14 Ill. L. & Prac. Courts> § 16 (1968).) Pursuant to section 4 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 5), the circuit courts> of the respective counties shall have jurisdiction in all cases of divorce allowed by that statute. We see no basis for the contention that the trial court lacked jurisdiction of the subject matter of the complaint. There is no issue here of jurisdiction over the person of the defendant. So far as this record indicates, he was properly served with summons in Cook County and has filed his general appearance. No collateral attack could have been made upon the decree of the circuit court on the ground that it lacked subject matter jurisdiction because of the alleged lack of standing on the part of plaintiff to bring a complaint for divorce.
In any case, defendant was properly precluded from raising this contention within the context of the instant post-decree proceeding. The law applicable to such collateral attacks is stated in Anderson v. ...