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West v. West

OPINION FILED MAY 24, 1979.

ROBERT BOYD WEST, APPELLANT,

v.

EVELYN LUCILLE WEST, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. Joseph C. Munch, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The plaintiff, Robert Boyd West, filed a complaint for divorce against the defendant, Evelyn Lucille West, in the circuit court of Macon County. The complaint was filed February 9, 1976, under the Illinois Divorce Act (Ill. Rev. Stat. 1975, ch. 40, pars. 1 to 21.4), which was then in effect, but was repealed effective October 1, 1977. After a bench trial the circuit court entered a judgment of divorce, and the defendant appealed to the Appellate Court for the Fourth District, which reversed the judgment and remanded the cause (62 Ill. App.3d 963). We granted the plaintiff's petition for leave to appeal.

The appellate court held that this case was governed by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 to 802), which was approved on September 22, 1977, and became effective October 1 of that year. The court reversed the judgment below because the circuit court had made no finding that one of the grounds for dissolution of marriage prescribed by section 401(2) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(2)) existed "without cause or provocation" by the plaintiff.

The complaint sought a divorce on the grounds of constructive desertion and extreme and repeated mental cruelty. The defendant's answer alleged that any acts of mental cruelty had been provoked by acts of adultery committed by the plaintiff. The latter were also alleged as an affirmative defense of recrimination, and as a basis for a counterclaim seeking separate maintenance. In awarding the plaintiff a divorce the circuit court also denied the counterclaim.

The case was tried in 1977. The presentation of evidence was concluded on May 10. The trial court did not announce a decision from the bench, but on July 15, after the submission of briefs, the court filed a signed document, captioned "memorandum," which granted a divorce to the plaintiff, and made provisions for child custody, alimony, and various items of property held by the parties. Custody of a minor child born to the parties was awarded to the defendant, and the plaintiff was directed to pay $50 a week in support. The plaintiff was directed to pay the defendant $900 per month as alimony. The court directed that the marital residence and its contents be sold, the proceeds to be divided equally between the parties. The defendant was directed to reconvey to the plaintiff an undivided half interest which she had been given in certain income-producing property owned by the plaintiff. The plaintiff was also ordered "to pay reasonable attorney fees to the defendant's counsel subject to hearing to establish said sum."

The memorandum recited that the plaintiff's complaint for divorce was "established by more than a preponderance of the evidence," but it did not specify on which ground the divorce was granted, and no reference was made to the element of provocation. The memorandum closed with the statement, "See judgment of divorce to be filed in conformity with the findings expressed herein."

A judgment for divorce was entered by the circuit court on November 2, 1977. That judgment found that the defendant had been guilty of extreme and repeated cruelty toward the plaintiff. No finding was made on the charge of desertion or on the issue of provocation. The judgment contained the same dispositional provisions as those of the memorandum, except that the amount to be paid to the defendant's counsel was now specified as $6,000.

The defendant filed a timely motion to vacate the judgment, alleging that the action was governed by the new act, and that the judgment was contrary to sections 503 and 504 thereof (Ill. Rev. Stat. 1977, ch. 40, pars. 503, 504). Those sections relate to the disposition of property and to maintenance, the term used in the new act for what was formerly called alimony. The court heard oral argument on the motion to vacate, on which briefs by each party were also submitted, and on January 4, 1979, the court denied the motion.

The docket entry of the order denying the motion was:

"Experienced and effective attorneys have thoroughly and exhaustively tried this case on its merits. The Court reviewed the authorities, studied the copious record and decided the issues pursuant to rules in effect at the time of trial; granted a divorce to the plaintiff and equitably divided the property accumulated during coverture on June 15, 1977. The fact that defense counsel procrastinated for many weeks before approving the decree as to form does not disturb a chancery decision. Post trial petition for relief denied."

On January 12, 1978, the defendant filed a timely notice of appeal from the judgment of November 2 and from the order denying the motion to vacate.

The reference made by the circuit court to procrastination by the defendant's counsel is presumably based on statements made by counsel for the parties in their briefs and in oral argument on the motion to vacate, for no evidentiary hearing was held on this matter. To summarize those statements, counsel for the plaintiff represented that after receipt of the July 15 memorandum he prepared a draft order and forwarded it on August 8 to counsel for the defendant for the purpose of obtaining a dollar figure for the award to the defendant of attorney's fees. The plaintiff's counsel stated that the defendant's attorney did not return the revised draft until October 25, at which time the plaintiff's counsel forwarded it to the trial judge for signature. The order when presented for entry bore the notation "approved as to form" over the signature of the defendant's counsel.

Counsel for the defendant did not disagree with this account, but he denied having had any intent to delay entry of a judgment in order to benefit his client, stating that it was not until September 30 that he had even become aware that the existing divorce act was about to be repealed. The responsibility for having a judgment order entered is ordinarily that of the prevailing party, as counsel for the plaintiff admitted. The plaintiff does not claim, and the record before us does not establish facts which would prove that the defendant was estopped to assert the applicability of the Act. (See Schmidt v. Cenacle Convent (1967), 86 Ill. App.2d 150, 157.) We are of the opinion, however, that the rendition by the trial court of dispositive findings on the issues involved in the defendant's appeal, with no contention of a subsequent change in conditions, is relevant to a determination whether the present act is applicable here.

As enumerated in the opinion of the appellate court, the defendant raised three issues on her appeal, viz., the applicability of the Act, the insufficiency of the evidence to establish a ground for divorce, and the incorrectness of the circuit court's rulings on child support, alimony, and property. With respect to the first issue the appellate court ...


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