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In Re Marriage of Brown

OPINION FILED JULY 24, 1980.

IN RE MARRIAGE OF SONJA H. BROWN, PETITIONER-APPELLEE, AND NELSON F. BROWN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Nelson F. Brown, respondent, through these consolidated appeals, seeks to reverse the order in case No. 77 D 1836 of the circuit court of Cook County allowing Sonja H. Brown, petitioner, to voluntarily dismiss without prejudice her divorce action. Petitioner obtained the dismissal under the provisions of section 52 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 52) (No. 79-252). Respondent also seeks to reverse the order in case No. 78 D 29211 of the circuit court of Cook County denying his motion to stay petitioner's dissolution of marriage petition and denying his motion to dismiss the dissolution action. Respondent sought the dismissal under the provisions of section 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)) (No. 79-552).

We affirm.

On January 27, 1977, petitioner in case No. 77 D 1836 filed her action for divorce. Neither petitioner nor respondent, who is an attorney and originally appeared pro se, actively pursued the litigation and the trial of the case was continued from time to time.

On December 11, 1978, pursuant to notice, petitioner moved to voluntarily dismiss without prejudice the pending divorce action. The respondent filed his answer to the motion proposing that any dismissal be granted with prejudice or alternatively that the case be assigned for trial instanter. Following arguments by respective counsel, the trial court on December 14, 1978, entered its order allowing petitioner's motion to voluntarily dismiss without prejudice her divorce action. The order also provided "That respondent submit bill for costs within 10 days or he waives right to demand claim * * * for costs pursuant to statute."

Immediately after the entry of the section 52 order, which allowed dismissal without prejudice of the divorce action, respondent filed his notice of appeal (No. 79-252). On this appeal respondent contends the order was entered inappropriately because: (1) the notice of motion served upon respondent did not conform to the requirements of the rules of the circuit court of Cook County, (2) the dismissal order lacked legality since it did not provide for payment or tender the costs due the respondent, and (3) section 52 of the Civil Practice Act violates public policy since it allows "repeated and vexatious litigation and [is] prejudicial to the rights of respondent."

On December 19, 1978, petitioner, in case No. 78 D 29211, filed her petition for legal separation or in the alternative for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.). Thereupon, on January 4, 1979, respondent appeared in that case and filed a motion to dismiss the proceedings under section 48 (1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)), contending that another action for the same cause which sought the same relief was still pending between the parties. It was respondent's position that by virtue of his appeal of the voluntary dismissal order in connection with the earlier divorce proceedings and the fact that the appeal remained pending and undisposed of, that his section 48 request for an involuntary dismissal of the subsequent dissolution case should be allowed.

On January 12, 1979, after hearing arguments of respective counsel and reviewing cited authorities, the trial court denied respondent's section 48 motion. Then, on January 23, respondent filed a short record in this court in appeal No. 79-124 and sought leave to file an interlocutory appeal by permission of this court. (Ill. Rev. Stat. 1977, ch. 110A, par. 308.) In his application for a permissive appeal, respondent set forth the background facts and, while not following the precise requirements of a Supreme Court Rule 308 procedure, did in effect request this court to accept his appeal from the trial court's section 48 ruling. By way of a separate motion, respondent also requested a stay of all proceedings in the trial court dissolution action pending this court's rulings.

On February 6, 1979, this court denied the respondent's motion to stay the dissolution proceedings and also denied respondent's application for an interlocutory appeal by permission pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308). *fn1

On January 25, 1979, respondent filed his response to the petitioner's petition for legal separation or in the alternative for dissolution of marriage. Thereafter, on March 5, respondent again appeared before the trial court and presented his motion seeking a stay of all proceedings in the dissolution action pending this court's disposition of the section 52 appeal (No. 79-252). On March 7, 1979, the trial court denied respondent's motion to stay the dissolution proceedings. On the same day, respondent filed his notice of interlocutory appeal from the trial court's order of March 7 (No. 79-552).

Respondent's interlocutory appeal is brought pursuant to Supreme Court Rule 307, "Interlocutory Appeals as of Right." (Ill. Rev. Stat. 1977, ch. 110A, par. 307(a)(1).) It is respondent's contention on this appeal that: (1) the trial court abused its discretion in denying respondent's motion to stay the proceedings in the dissolution action until the appellate court ruled on respondent's section 52 appeal; and (2) the trial court erred in denying respondent's section 48 motion to dismiss the dissolution action.

The record discloses that on July 11, 1979, respondent, during the interlocutory appeal proceedings, presented to this court an "Emergency Motion to Stay Proceedings in the Circuit Court of Cook County [Case No. 78 D 29211]." Respondent moved for a stay in connection with certain actions initiated by petitioner regarding enforcement of the trial court's orders. The orders sought related to the right of petitioner to remove certain personal property, the respondent's obligation to submit to certain discovery, and the enforcement of a temporary attorney's fee allowance.

The record indicates that the petitioner filed her response to the petition seeking the stay and, on July 27, 1979, the motion for the stay was denied. Thereupon, respondent perfected another appeal (No. 79-1896) relating to the trial court's August 28, 1979, order which concerned itself with the personal property, discovery, and attorney's fees. On motion of petitioner, this appeal was dismissed by this court on November 29, 1979, on the grounds that the order appealed from was not final and thus not appealable.

OPINION

I

We first turn to the issues raised by respondent in connection with his appeal (No. 79-252) of the petitioner's section 52 dismissal without prejudice, of her initial suit for divorce.

Section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 52(1)), in relevant part, provides as follows:

"(1) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof, as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by his consent."

Respondent asserts the trial court abused its discretion in allowing the voluntary dismissal without prejudice. In that regard, respondent argues the trial court erred in holding a hearing on the motion to dismiss because notice of the hearing on the motion was not given to him in accordance with the provisions of circuit court of Cook County Rule 2.1(d). The said rule requires that if a notice is given by mail it shall be deposited in a United States Post Office or Post Office box on the fifth court day preceding the hearing of the motion.

Respondent claims that petitioner's attorney mailed the respondent the notice of motion relating to the voluntary dismissal on Thursday, December 7, 1978, and that the notice indicated the court hearing would be held on Monday, December 11, 1978.

On December 11, respondent appeared in court with his counsel and objected to the sufficiency of the notice. The court then continued the hearing on the motion to Thursday, December 14. On that date respondent was allowed to file instanter his answer to the motion. At the conclusion of the hearing on the motion and answer, the trial court entered its order granting the voluntary dismissal without prejudice. Respondent urges that it was legally impermissible for the trial court to enter its dismissal order when the notice was defective in not granting respondent the full five days' ...


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