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Levy v. Dickstein

OPINION FILED MARCH 9, 1979.

MORRIS LEVY, PETITIONER-APPELLANT,

v.

ESTHER LEVY DICKSTEIN, RESPONDENT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Petitioner appeals from an order of the circuit court of Cook County which dismissed his petition to register an Indiana divorce decree under the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1975, ch. 77, pars. 88 through 105). The sole issue on review is whether the trial court erred in finding that the Indiana divorce decree was not entitled to full faith and credit in Illinois. We affirm. The pertinent facts follow.

The parties were married in Illinois in 1966. They separated in 1973, and respondent filed a complaint for divorce in the circuit court of Cook County. Petitioner, who resided in Indiana, did not personally appear in the Illinois divorce proceedings, but he signed a property settlement agreement dated November 7, 1973, and stipulated therein to have the cause heard as a default matter. The settlement agreement was incorporated into the judgment for divorce, which was entered on January 27, 1974. Petitioner was not represented by counsel prior to the issuance of the Illinois judgment.

Petitioner remarried in Indiana in March 1974. Respondent also remarried in September 1975. In February 1975 respondent filed a petition for rule to show cause in the circuit court of Cook County. Petitioner appeared, represented by counsel, and in an agreed order obtained a reduction in the amount of petitioner's child-support payments.

In December 1975 petitioner filed a petition in the Indiana courts> for dissolution of the same marriage. Respondent filed an answer to the petition which stated that the marriage had already been dissolved and attached a copy of the Illinois divorce judgment. Before the trial on the Indiana petition began in 1976, respondent petitioned the circuit court of Cook County to enjoin petitioner from pursuing his Indiana case. Following the filing of petitioner's response, and after a hearing at which petitioner was again represented by counsel, the injunction was issued.

The action in Indiana went to trial, although respondent did not participate after filing her answer. The Indiana court found that the Illinois court had been without jurisdiction over petitioner and the subject matter, and that the property settlement had been "unfairly entered into" in Illinois, thereby depriving petitioner of due process. The Indiana court then granted petitioner a divorce. *fn1

Petitioner brought the present action to register the Indiana divorce decree in Illinois. Petitioner's request was denied, the court finding that Illinois public policy prevailed over the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, § 1), because petitioner had accepted the benefits and privileges of the Illinois divorce decree by remarrying and thereafter had obtained another, more favorable, divorce in Indiana from the same woman. Petitioner has appealed from the dismissal of his petition to register the Indiana divorce decree.

OPINION

• 1 On appeal, petitioner contends that the case must be approached from the point of view of the Indiana court and that its judgment is entitled to full faith and credit in Illinois because respondent participated in the Indiana court and never challenged that decree in Indiana. Respondent, on the other hand, maintains that the Indiana court was without subject matter jurisdiction to grant the divorce because the marriage of the parties had already been dissolved by the Illinois courts>. However, the emphasis of both parties on the Indiana aspect of this case serves only to distract from the real issue before us. That issue is most specifically stated as whether the principle of full faith and credit requires the enforcement in Illinois of an Indiana divorce decree when a divorce in the same marriage of the same parties has already been decreed in Illinois and has never been challenged in Illinois. We conclude that it does not.

• 2 Petitioner is attempting to bring a collateral attack on the Illinois divorce judgment by seeking the enforcement of the successful collateral attack made on that judgment in the Indiana courts>. Relying on Sherrer v. Sherrer (1948), 334 U.S. 343, 92 L.Ed. 1429, 68 S.Ct. 1087, petitioner maintains that the Illinois courts> cannot re-examine the Indiana proceedings because respondent participated in the Indiana action by filing a general appearance. However, petitioner ignores the fact that his Indiana action collaterally attacked the Illinois divorce judgment and that Sherrer further holds that a party may not bring a collateral attack in a sister State against a judgment which is not subject to such an attack in the State of the original forum. (334 U.S. 343, 351-52, 92 L.Ed. 1429, 1436, 68 S.Ct. 1087, 1091.) We will therefore first consider whether the Illinois divorce judgment is subject to collateral attack in our courts>.

• 3, 4 The law pertaining to collateral attacks on judgments and decrees is set forth in Anderson v. Anderson (2d Dist. 1955), 4 Ill. App.2d 330, 344, 124 N.E.2d 66, 73:

"In case of a collateral attack on a decree of a court of record, a court of general jurisdiction, all presumptions are in favor of the validity of the decree; when acting within the scope of its authority it is presumed to have jurisdiction to enter the decree until the contrary appears; nothing is presumed to be without its jurisdiction which does not specially appear to be so; want of jurisdiction to enter the same must affirmatively appear on the face of the record to furnish a basis for collateral attack; it can be attacked collaterally only by the record itself, such cannot be shown aliunde the record, its records import verity, and the `record' consists only of the pleadings, process, verdict, judgment or decree, and does not include the evidence, certificate of evidence, or bill of exceptions: [citations]."

The record before us of the Illinois divorce consists solely of the judgment for divorce and two post-judgment orders. The judgment, dated January 27, 1974, contains specific statements that petitioner had been personally served and that it had been stipulated and agreed that the cause was to be heard as a default matter. The judgment also includes a finding that the court had jurisdiction both over the parties and over the subject matter. Attached to, and incorporated in, the judgment is the settlement agreement signed by both parties and containing a provision stating that petitioner had stipulated to having the divorce heard as a default matter. The first post-judgment order, dated March 25, 1975, is an agreed order entered after respondent had filed a petition for rule to show cause and petitioner had filed his response. The second order was entered March 26, 1976, and states that petitioner's attorney was present and had submitted a motion to strike respondent's petition for an injunction. The order also contains a finding of jurisdiction over petitioner.

No other portions of the record of the original Illinois divorce proceedings have been presented to us. The duty is on the part of the one challenging the decree to bring the record before this court and where parts of the record are lacking, there is a presumption that the trial court acted properly. (Flynn v. Flynn (1977), 45 Ill. App.3d 865, 360 N.E.2d 401; Glover v. Glover (1974), 24 Ill. App.3d 73, 320 N.E.2d 513.) The record before us contains an explicit finding of jurisdiction and ...


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