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Rosenbaum v. Rosenbaum

OPINION FILED SEPTEMBER 26, 1978.

KURT ROSENBAUM, PLAINTIFF-APPELLEE,

v.

JEAN ROSENBAUM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND DRYMALSKI, Judge, presiding. MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 24, 1978.

Defendant, Jean Rosenbaum, appeals from a decree of partition and sale of real property, from an order of distribution of the proceeds of that sale, and from an order granting a writ of restitution, which decree and orders were entered by the trial court after remand of the first appeal of this cause (Rosenbaum v. Rosenbaum (1st Dist. 1976), 38 Ill. App.3d 1, 349 N.E.2d 73). Defendant has filed four separate appeals in this court, seeking review of various other orders entered by the trial court after remand. We dismissed case No. 77-836 for failure to file a timely notice of appeal, and consolidated the remaining three cases.

In the first appeal of this cause, we found that plaintiff, Dr. Kurt Rosenbaum, failed to prove a cause of action for divorce under count II of his second amended complaint and that the partition judgment entered under count I was invalid. We held that the partition judgment was invalid since commissioners were not appointed and since the report of a commissioner or commissioners did not precede the trial court's order of sale. As to count I (partition), we remanded the cause for further proceedings. As to count II (divorce), we remanded the cause with directions that it be dismissed and judgment be entered in favor of defendant. Rosenbaum v. Rosenbaum (1st Dist. 1976), 38 Ill. App.3d 1, 349 N.E.2d 73.

On December 1, 1976, the trial court dismissed count II (divorce) and entered judgment thereon in favor of defendant. Further proceedings on count I (partition) were continued.

A review of the pleadings pertaining to the partition action indicates that no controversy existed between the parties regarding the legal description of the property; their ownership of the property as joint tenants; the derivation of their title; that the property was improved with a single-family residence; and that plaintiff had paid all real estate taxes since 1965. The parties were at issue regarding whether the subject property was the only real estate owned by them, whether the subject property could not be divided without injury to those in interest, and whether defendant was entitled to an award for homestead and dower.

On December 14, 1976, defendant filed a two count complaint against her husband, Dr. Rosenbaum. The first count sought a declaratory judgment "establishing her right" to spousal support without the necessity of filing an action under the separate maintenance act (Ill. Rev. Stat. 1975, ch. 68, par. 22 et seq.) and declaring that act unconstitutional. The second count requested, among other things, support from Dr. Rosenbaum and an adjudication of property rights. The trial court consolidated this action with Dr. Rosebaum's partition action.

On January 21, 1977, Mrs. Rosenbaum filed a five-part motion seeking: (1) dismissal of the partition action; (2) trial costs and attorney's fees; (3) retroactive temporary alimony; (4) payment of water tax; and (5) "restitution" of property sold, of insurance policies in which she was beneficiary, of bank accounts, and of various other property.

On April 18, 1977, the trial court entered an order dismissing defendant's two-count complaint, denying her five-part motion, and disposing of various motions theretofore filed by defendant. The order further appointed one commissioner, pursuant to section 6 of "An Act in relation to the partition of real estate * * *" (Ill. Rev. Stat. 1975, ch. 106, par. 49), to report to the trial court whether or not the subject property was susceptible of division, and if not susceptible to division, then to appraise and value the subject property.

On April 27, 1977, trial commenced on the partition action. The record indicates that trial continued on dates subsequent to April 27, 1977; however, the record does not reveal those exact dates and it does not include the transcripts of proceedings of those dates.

Both parties testified at the April 27, 1977, hearing. Under examination as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60), defendant testified that she and plaintiff owned the subject property. She described the lot and the residence that improved it. She further testified that plaintiff had not resided at home since 1965 and that she had not paid any real estate taxes since 1965. Plaintiff testified that the mortgage was paid and that he paid real estate taxes and insurance since 1965. He further stated that he did not own any other real estate in joint tenancy.

On May 18, 1977, the commissioner filed his report, which stated that the subject property was not susceptible of division without manifest prejudice to the parties. The commissioner appraised its value at $47,000.

On June 23, 1977, the trial court entered a decree for partition and sale. The decree provided, among other things, that the subject property was the only real estate owned in common by the parties; that defendant is not entitled to have funds set off to her for homestead; that defendant is not as a matter of law entitled to dower; and that deductions for plaintiff's attorney's fees and for real estate taxes paid by plaintiff shall be made before distribution of 50% of the remaining balance to each party.

On August 4, 1977, the sheriff of Cook County held a public sale of the subject property. It was sold to the highest bidder for $56,000. On August 23, 1977, the sheriff's report of sale and distribution was filed with the trial court.

On September 6, 1977, the trial court entered an order approving the sheriff's report of sale and distribution with modification. This order of distribution provided, among other things, that plaintiff's attorney would receive $3,500 for attorney's fees and that plaintiff would receive $10,692.60 for real estate taxes paid by him from January 1, ...


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