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United Bank v. Dohm

OPINION FILED JUNE 9, 1983.

UNITED BANK OF LOVES PARK, PLAINTIFF-APPELLEE,

v.

J. PATRICK DOHM ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Winnebago County; the Hon. Galyn W. Moehring, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 13, 1983.

J. Patrick Dohm and In-grid Dohm, as beneficiaries of a land trust, seek to vacate the sale of real estate made under a decree of foreclosure entered by default. They contend that J. Patrick Dohm was not properly served in the original foreclosure action by substituted service on his wife at their Rockford house because at the time of the service his usual place of abode, at which service was required to be made, was in Chicago, not Rockford. He also contends that the First National Bank & Trust Company of Rockford, as trustee under trust No. 4774, holding record title to the subject real estate, was not properly served.

I

The claim of improper substituted service of process is based on section 2-203 of the Code of Civil Procedure, which provides as relevant:

"[S]ervice of summons upon an individual defendant shall be made (a) by leaving a copy thereof with the defendant personally or (b) by leaving a copy at the defendant's usual place of abode, with some person of the family * * * provided the officer or other person making service shall also send a copy of the summons * * * addressed to the defendant at his or her usual place of abode. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, par. 2-203.

Defendants argue that delivery of a copy of the complaint and summons to In-grid Dohm, the wife of J. Patrick Dohm, at their residence in Rockford did not comply with the statute because his "usual place of abode" at the time of service was an apartment in Chicago, not the Rockford house.

• 1 Initially we consider the argument of the plaintiff, United Bank of Loves Park, that service was waived when J. Patrick Dohm entered his appearance on the petition to vacate the decree of foreclosure. It argues that defendant, by arguing non-jurisdictional issues such as adequacy of price at the sheriff's sale, waived the right to contest the propriety of the service of process. The defendant, however, made no appearance in this case until after the entry of the judgment of foreclosure. Moreover, the petition to vacate, though attacking the propriety of the post-decree sheriff's sale, does not argue the merits of the foreclosure action itself. For these reasons the petition to vacate did not amount to a waiver of the right to contest the service of process. See Sullivan v. Bach (1981), 100 Ill. App.3d 1135, 1141-42.

The sheriff's return on the summons states that the summons was served and mailed on October 7, 1980. Dohm testified that he was employed as a commodity investment program salesman in Chicago from September 26, 1980, through January 19 or 20, 1981, and that during this time he resided in an apartment in Chicago. He stated that previously he had resided at the home in Rockford where service was made and that he moved back to Rockford on either January 19 or 20, 1981. He said that while he worked in Chicago he "sometimes" but "not always" made trips back to Rockford on the weekends but doubted that he made any trips back to Rockford during the week. Throughout the period in question his wife and children continued to reside at the Rockford address. Dohm testified that he was "absolutely not" separated from his wife in the "marital sense." He said that his wife and children did not join him in Chicago at any time during this period.

Dohm testified that throughout the time that he was employed in Chicago his family's household furniture remained in the Rockford house. He did not change the address on his Illinois driver's license or his social security registration, nor did he have his personal mail forwarded to his Chicago address. He decided to change employment after a downturn in the commodities market, which by early December 1980 had made his job less remunerative. He therefor did not reside in Chicago at any time after January 20, 1981.

Neither party had directed us to any Illinois case directly in point, nor have we found any. On the record before us the rulings in other jurisdictions on the question of "usual place of abode" do not support Dohm's contention that although the home in Rockford remained his residence it was not his place of abode for service of summons.

• 2 A defendant's "usual place of abode" is a question of fact. (Plonski v. Halloran (1980), 36 Conn. Sup. 335, 337, 420 A.2d 117, 118; Holtberg v. Bommersbach (1952), 236 Minn. 335, 338, 52 N.W.2d 766, 769.) No hard and fast definition of "usual place of abode" can be laid down and each case must turn on its particular facts. Karlsson v. Rabinowitz (4th Cir. 1963), 318 F.2d 666, 669; Capitol Light & Supply Co. v. Gunning Electric Co. (1963), 24 Conn. Sup. 324, 326, 190 A.2d 495, 496.

There is a rebuttable presumption that the house where a man's wife and children reside is his "usual place of abode." (A&S Manufacturing Co. v. Wetzler (1970), 110 N.J. Super. 565, 569, 266 A.2d 316, 318; Holtberg v. Bommersbach (1952), 236 Minn. 335, 338, 52 N.W.2d 766, 769.) Among the factors a court may consider to determine whether the presumption has been overcome are the state of the marriage at the time of service, the frequency of the husband's contacts with the house in which the family has been residing, the defendant's intent or lack of intent to abandon this residence permanently or to move his family elsewhere, whether the defendant has removed his personal belongings from this residence, the defendant's address for voter registration, driver's license, mail delivery and other purposes, and whether the wife and children continue to live at the residence. (A&S Manufacturing Co. v. Wetzler (1970), 110 N.J. Super. 565, 569, 266 A.2d 316, 318; see, e.g., Schlawig v. De Peyster (1891), 83 Iowa 323, 49 N.W. 843 (intent to move family permanently to new residence); Household Finance Corp. v. McDevitt (1973), 84 N.M. 465, 505 P.2d 60 (marital difficulties, no later return to residence).) The underlying consideration is whether substituted service at the chosen dwelling place is reasonably likely to provide the defendant with actual notice of the proceedings. Karlsson v. Rabinowitz (4th Cir. 1963), 318 F.2d 666, 668; VanBuren v. Glasco (1975), 27 N.C. App. 1, 5, 217 S.E.2d 579, 582; cf. White v. Primm (1865), 36 Ill. 416, 418 (hotel or boarding house where party is staying for a few days is not "his usual place of abode").

In VanBuren, the defendant received substituted service in August 1973 at a North Carolina house owned by him and his wife and at which his wife and children resided at the time of service. In the spring of 1972 defendant had moved to South Carolina to organize and conduct a business. He had resided and worked in South Carolina since leaving North Carolina. He had returned to visit his family in North Carolina fairly regularly, though not an average of more than two weekends a month, in this period. The appellate court affirmed a trial court finding that defendant had received substituted service at his usual place of abode, emphasizing that the family's continuous residence at the North Carolina house and the defendant's ...


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