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In Re Marriage of Melton

OPINION FILED FEBRUARY 18, 1981.

IN RE MARRIAGE OF PATRICIA MELTON, PETITIONER-APPELLANT, AND DONALD MELTON, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Sangamon County; the Hon. JERRY S. RHODES, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Petitioner filed for a divorce and got it.

Now she wants it voided and nullified.

She can't do it.

She got exactly what she asked for.

We affirm.

Petitioner-wife filed a motion to vacate a judgment of dissolution.

The motion asserted that the trial court abused its discretion in denying her motion for continuance; that she did not in fact enter into the property settlement agreement upon which the judgment was based; that the court erred in not holding a bifurcated hearing on the question of property disposition; that the judgment was defective on its face; and, that the judgment was invalid since there was no evidence presented concerning grounds for the dissolution.

A docket entry shows that a hearing was conducted on May 15, 1980. Petitioner's motion in limine was allowed and both sides were given 14 days to submit additional authority. A docket entry for May 30, 1980, states:

"Motion to set aside judgment of dissolution denied. No evidence having been presented by the petitioner, Patricia Melton, on this motion, the Court believes the Judgment for Dissolution of Marriage was properly entered. The Court further notes that the petitioner by filing her Motion in Limine has prevented the Court from inquiring into the circumstances of the original divorce trial, and the petitioner has failed to sustain her burden."

The petitioner now appeals. Her arguments can generally be divided into three categories. First, she argues that the judgment is void due to failure to plead or prove the grounds for the dissolution. Second, she asserts that the judgment must be vacated because she never entered into the agreement which served as the basis for the judgment. Finally, she argues that she was denied due process of law because she was not given the opportunity to offer evidence in support of her motion to vacate. These three areas will be examined separately.

I

In her original complaint, petitioner requested that the court enter a decree of divorce. She alleged that the respondent had been guilty of extreme and repeated mental cruelty. She further alleged that the parties had been separated for over one year through no fault on her part. At the prove-up hearing, petitioner was the only witness to testify, and she testified on her own behalf. Petitioner produced no evidence of mental cruelty but did state that the parties had been separated through no fault on her part. The trial judge orally granted dissolution and in his written order found that the respondent had been guilty of desertion.

On appeal to this court, petitioner now argues that the trial court's order is void: (a) for failure to prove the grounds set forth in the pleadings; (b) for failure to plead grounds on which relief was granted; (c) for failure to prove grounds upon which relief was granted; and (d) for failure to make specific findings. Respondent responds that petitioner is precluded from attacking the judgment because (a) the judgment was a consent decree, and ...


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