APPEAL from the Circuit Court of Stephenson County; the Hon.
EVERETT LAUGHLIN, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Thomas A. Haymond appeals from an order confirming certain prior orders which reduced arrearages and temporary support payments due his former wife, Elizabeth, under an earlier interlocutory order of the trial court, to judgment. He argues that (1) he was not amenable to process issued by a court of this State; (2) that the trial court lacked ancilliary jurisdiction to enforce its temporary support order, since another divorce action was pending between the parties in West Virginia; (3) that the trial court was not empowered to reduce "delinquent temporary alimony" to judgment, and (4) that the trial court erred in refusing to hear certain evidence, presented as a setoff against the judgments.
Thomas and Elizabeth Haymond were married in California in 1966. Shortly thereafter, they moved to Freeport, Illinois, where they lived until December of 1970, when they moved to West Virginia. They cohabited in West Virginia until December of 1972, when Elizabeth Haymond left her husband and returned to Illinois.
Early in 1974, Elizabeth Haymond filed a complaint for divorce in Stephenson County, Illinois. The complaint alleged that Thomas Haymond had been guilty of physical and mental cruelty, but did not allege where the acts had occurred. Thomas Haymond, who had continued to reside in West Virginia after his wife's departure, was personally served with summons in the Illinois divorce action, in Preston County, West Virginia, on February 15, 1974.
On April 9, 1974, Elizabeth Haymond filed a petition for temporary alimony; notice and a copy of the petition was mailed to Thomas Haymond in West Virginia. On May 7, 1974, the circuit court of Stephenson County entered an order that Thomas Haymond pay Elizabeth Haymond $600 per month for "temporary support" during the pendency of the divorce proceeding. After Thomas Haymond failed to make the first of the $600 payments, Elizabeth Haymond filed a petition to hold him in contempt and reduce the arrearage to judgment. Although Thomas Haymond did not enter an appearance or contest the petition, the court held an evidentiary hearing; Elizabeth Haymond testified that in early 1967, Thomas Haymond struck her with his fist at the parties' marital home in Freeport, Illinois, and that such misconduct toward her was repeated on various occasions in Freeport during 1967 and 1968. After hearing testimony regarding Thomas Haymond's failure to make a $600 payment as required by the court's prior order, the court entered a judgment for $600 against Thomas Haymond.
On October 8, 1975, Thomas Haymond having failed to make any temporary support payments, Elizabeth Haymond filed a second petition to hold him in contempt and reduce the further arrearages to judgment. On October 30, 1975, the court entered an order reducing the arrearages (plus attorney fees) to a judgment against Thomas Haymond in the amount of $10,250.
The focus of the controversy then shifted to Preston County, West Virginia, where Thomas Haymond filed suit for divorce. Elizabeth Haymond appeared and contested this proceeding. She also filed an action in the same court to enforce the judgment for $600 which she had obtained in the Stephenson County divorce proceeding. Thomas Haymond filed an answer asserting that the Illinois judgment was not entitled to full faith and credit; he also filed a counterclaim, seeking, as a setoff, the amount of certain voluntary payments which he had made to Elizabeth Haymond, after the parties separated, and $9,000 which he alleged that Elizabeth Haymond had appropriated from a joint tenancy bank account of the parties at the Union Savings and Loan Association in Freeport, Illinois.
Elizabeth Haymond filed a motion for a summary judgment on her complaint and on Thomas Haymond's counterclaim, in the West Virginia action to enforce the $600 Illinois judgment. The West Virginia court, on March 15, 1976, in a thoughtful memorandum decision, held that the circuit court of Stephenson County had jurisdiction to enter both the order for temporary support and the order reducing the arrearages to judgment, and that the judgment was therefore entitled to full faith and credit. Although the court granted summary judgment on the complaint to enforce the $600 judgment, it denied Elizabeth Haymond's motion for summary judgment on Thomas Haymond's counterclaim, holding that "the case has not been sufficiently developed for the court to adjudicate the counterclaim at this time."
After a hearing on Thomas Haymond's complaint for divorce, the West Virginia court entered formal findings of fact, holding that Thomas Haymond had inflicted physical cruelty upon, and cruelly treated Elizabeth Haymond "all during the some six and one-half years of marital cohabitation of the parties," but that Thomas Haymond was entitled to a divorce in view of the two year separation of the parties. The court stated that it would award $300 per month to Elizabeth Haymond as alimony and concluded that "a decree may be prepared accordingly."
On March 31, 1976, Elizabeth Haymond again changed the focus of the litigation by filing yet another petition before the circuit court of Stephenson County to hold Thomas Haymond in contempt, and reduce the ever-increasing arrearages in payments due from Thomas Haymond under the temporary support order of May 7, 1974, to judgment. Thomas Haymond, for the first time, responded to the proceedings in the circuit court of Stephenson County, by filing a special appearance, asserting that the court lacked in personam jurisdiction. The court overruled the objections raised in the defendant's special appearance, holding that it had in personam jurisdiction pursuant to the Illinois long arm statute (Ill. Rev. Stat. 1975, ch. 110, pars. 16 and 17). Thomas Haymond then filed a motion to vacate the judgment entered on October 30, 1975, and for an order granting a "set-off" based upon the voluntary payments Thomas Haymond allegedly made to Elizabeth Haymond after the parties' separation, and upon the $9,000 deposited in the joint tenancy saving account in Freeport, which Elizabeth Haymond was alleged to have "effectively used" by borrowing against the account and then pledging it as security. The motion also asserted that Elizabeth Haymond had abandoned the Illinois action when she filed her appearance in the West Virginia divorce action. The court denied this motion, and entered an order reducing the arrearages, plus certain attorney fees incurred by Elizabeth Haymond, to yet another judgment against Thomas Haymond, this one in the amount of $3,570. The court subsequently entered an order "confirming" this judgment, and the prior judgments for $10,250 and $600, and denying Thomas Haymond's motion for a setoff, based upon the Union Savings and Loan account. Thomas Haymond appeals from this order and the underlying judgments.
1 Thomas Haymond has filed a motion seeking an order amending the record on appeal to include an exemplified and authenticated copy of the final decree entered by the circuit court of Preston County, West Virginia, in the divorce action between these parties. Counsel for Elizabeth Haymond has objected to such an amendment, as untimely. The decree, which was entered on October 19, 1977, grants a divorce to Thomas Haymond, and awards Elizabeth Haymond $300 per month as alimony. In order to assure a complete disposition of the issues raised by this appeal, we have determined to grant this motion, pursuant to our authority under Supreme Court Rule 366 (Ill. Rev. Stat. 1975, ch. 110A, par. 366).
This complicated jurisdictional background presents a number of questions involving the construction and permissible scope of the Illinois "Long Arm" statute in force during the period in question, which in relevant part, provided as follows:
"Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts> of this State as to any cause of action arising from the doing of any of such acts:
(e) With respect to actions of divorce and separate maintenance, the maintenance in this State of a matrimonial domicile at the time the cause of action arose or the commission in this State of any act giving rise to the cause ...