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In Re Marriage of Weiss

OPINION FILED AUGUST 13, 1980.

IN RE MARRIAGE OF EVELYN WEISS, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND FREDERICK WEISS, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. BERNARD B. WOLFE, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Petitioner, Evelyn Weiss, and respondent, Frederick Weiss, were married on April 3, 1941. In 1973, petitioner instituted proceedings for divorce under the former Divorce Act (Ill. Rev. Stat. 1973, ch. 40, pars. 1 through 32 (repealed)). Respondent's countercomplaint for divorce was later withdrawn. After the effective date of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 through 802), petitioner filed a supplement to her amended petition for dissolution of marriage adding count IV. Petitioner appeals from an order of the trial court dismissing count IV for failure to prove jurisdiction as required by section 401(1) of the new act and declining to dispose of motions pending under that count. Petitioner also appeals from orders allowing respondent to withdraw his countercomplaint. In a second appeal, petitioner appeals from an order striking her motions for a restraining order and for temporary support and fees pending appeal. Respondent cross-appeals from the trial court's refusal to include in the order of dismissal a finding that petitioner failed to prove respondent guilty of mental cruelty, and the court's refusal to strike and dismiss petitioner's request for increased temporary support.

On March 10, 1977, petitioner filed an amended three-count complaint for divorce. She alleged, in relevant part, that the parties had been bona fide residents of Illinois for more than one year prior to filing the original complaint, and that respondent was guilty of extreme and repeated mental cruelty. Respondent filed an answer denying the material allegations in the amended complaint and pleading various affirmative defenses. Respondent also filed an amended countercomplaint for divorce alleging the parties' Illinois residency and charging petitioner with extreme and repeated mental cruelty.

Trial commenced on May 5, 1977. Petitioner, the sole witness, stated that the parties were then and had always been residents of Illinois except for the first four years of her life. During cross-examination of petitioner, the parties represented that a settlement was about to be concluded. Consequently, the trial was suspended and the cause continued. Soon thereafter, respondent's counsel and one of petitioner's counsel died. As a result, no settlement was concluded.

On October 1, 1977, the new act became effective and, pursuant to section 801(b), became applicable to this pending action. On July 26, 1978, to bring the proceedings within the new statutory provisions, petitioner filed a pleading designated "supplement to amended petition for dissolution of marriage" containing count IV. Count IV alleged in pertinent part that petitioner and respondent had been residents of Illinois for 56 and 68 years, respectively; that they were married in Illinois; and that respondent had been guilty of extreme and repeated mental cruelty without cause. Count IV also contained the following allegation:

"Petitioner and Respondent are now domiciled in the State of Illinois, were domiciled in the State of Illinois at the time of the filing of the cause of action, and have been domiciled in the State of Illinois for more than 90 days. The jurisdictional requirements of the Illinois Marriage and Dissolution of Marriage Act therefore exist, and there exist grounds for the dissolution of the marriage of the parties."

Petitioner requested a dissolution of the marriage, support and fees, and a determination of the parties' property rights.

On January 18, 1979, respondent filed an answer to count IV providing, in relevant part, as follows:

"[Respondent] admits the parties are now domiciled in the State of Illinois and were domiciled for more than ninety (90) days prior to the commencement of this case * * *, but further answering, [respondent] denies that [petitioner] has a cause of action or that there exist grounds for the dissolution of marriage of these parties."

Respondent denied that he was guilty of extreme and repeated mental cruelty. On that same day, the trial court, over petitioner's objection, granted respondent's motion to withdraw his countercomplaint.

Since settlement had not been achieved, trial resumed on February 5, 1979. Respondent's counsel recommenced cross-examination of petitioner and elicited information concerning her conduct toward respondent. There was no redirect examination, and petitioner then rested. Respondent submitted a motion for judgment. On March 2, 1979, the trial court orally indicated that count IV would be dismissed because petitioner failed to introduce evidence establishing jurisdiction under section 401.1 of the new act which deals with domicile, and failed to prove a prima facie case of extreme and repeated mental cruelty. The court repeated its jurisdictional finding on April 11, 1979. On April 17, 1979, the trial court entered a written order that petitioner failed to prove that the court had jurisdiction; that the court was thus deprived of the power to dispose of the motions pending under count IV; and that there was no just reason for delaying enforcement or appeal of the order. The court dismissed count IV, and reassigned the case for a determination of any unresolved issues raised in the other counts of petitioner's amended complaint. The order did not contain a finding as to whether petitioner proved grounds for dissolution. The parties then filed their respective notices of appeal and cross-appeal.

Thereafter, petitioner renewed a motion for a rule to show cause and arrearages, and filed a motion for temporary support and fees pending appeal. She also filed a petition for a restraining order preventing respondent from entering the marital home. Respondent filed a motion to strike these petitions urging, in part, that the court could not grant such relief because it had no jurisdiction over the cause. On September 10, 1979, Judge Robert C. Buckley granted respondent's motion to strike the petitions. Petitioner also appeals from this ruling.

Petitioner contends that the trial court erred in ruling that she had failed to prove jurisdiction as required by section 401(1) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1977, ch. 40, par. 401(1).

• 1 We reject respondent's threshold argument that petitioner has waived the right to contest this jurisdictional finding because she failed to object to the ruling when it was announced by the court. On March 2, 1979, and April 11, 1979, the court stated that count IV would be dismissed on the ground that jurisdiction had not been established. On April 17, 1979, the court entered such an order. Petitioner was under no duty to ...


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