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In Re Marriage of Hanlon

OPINION FILED JUNE 30, 1983.

IN RE MARRIAGE OF THOMAS H. HANLON, PETITIONER AND COUNTERRESPONDENT — APPELLANT, AND FRANCES JEAN HANLON, RESPONDENT AND COUNTERPETITIONER — APPELLEE — (MARY LOUISE KEARNS, COUNTERRESPONDENT-APPELLEE).


Appeal from the Circuit Court of Cook County; the Hon. Robert Chapman Buckley, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Frances Jean Hanlon (Frances) appeals from the Sepember 17, 1981, order which dismissed her petition for a legal separation and the petition of Thomas H. Hanlon (Thomas) for dissolution of marriage and enrolled a Nevada decree of divorce as a domestic judgment of Illinois. The central issue presented in this appeal is whether the trial court erred in granting full faith and credit to the Nevada decree of divorce. We affirm.

On December 29, 1977, Thomas filed a complaint in Illinois for dissolution of marriage. His wife Frances couterpetitioned for legal separation naming Mary Louise Kearns (Kearns) and Thomas as counterrespondents. A brief summary of the pertinent proceedings will suffice for our determination.

On February 7, 1979, the trial court in Illinois entered an agreed order enjoining Thomas from filing an action in another State to dissolve the marriage. On May 17, 1979, upon Thomas' motion, an order was entered dismissing the case for want of prosecution as to all parties whereupon Frances then appealed.

Thomas, on June 21, 1979, filed a complaint for divorce in the Eighth Judicial District Court, Clark County, Las Vegas, Nevada. Frances was personally served two days later at her home in Arlington Heights, Illinois. Thomas did not inform the Nevada court of either the pending Illinois action or the restraining order. Following the granting of a default decree of divorce by the Nevada court on July 27, 1979, Thomas married Kearns in Illinois on August 10, 1979.

On April 25, 1980, the appellate court reversed the May 17, 1979, dismissal and remanded the instant case for further proceedings. (In re Marriage of Hanlon (1980), 83 Ill. App.3d 629, 404 N.E.2d 873.) On remand Thomas filed an amended answer to Frances' counterpetition for legal separation alleging the Nevada decree was an affirmative defense and sought an order to dismiss the action and petitioned to register the Nevada decree as a domestic judgment in Illinois. In reply Frances alleged as an affirmative defense that the Nevada decree was void for want of jurisdiction and denied that Thomas intended to make Nevada a permanent domicile and further stated that Thomas never informed the Nevada court of the prior pending dissolution proceeding in the Illinois court.

After reviewing the testimony of Thomas and Frances, the Illinois court found that Thomas had established domicile in Nevada and that Nevada, therefore, had jurisdiction to enter the divorce decree. The trial court entered an order dismissing Frances' petition for legal separation, dismissing Thomas' petition for dissolution of marriage, granting full faith and credit to the Nevada decree of divorce and enrolling said decree as a judgment in Illinois. Frances appeals.

OPINION

• 1, 2 On appeal, Frances contends that the trial court erred in granting full faith and credit to the Nevada decree. The controlling principles are well settled. The power of a court to grant a divorce is founded on domicile. (Esenwein v. Pennsylvania (1945), 325 U.S. 279, 89 L.Ed. 1608, 65 S.Ct. 1118.) An ex parte divorce is to be afforded full faith and credit so long as the plaintiff has met the domicile requirements of the forum, regardless of the marital domicile. Personal jurisdiction over the defendant is not required. (Williams v. North Carolina (1942), 317 U.S. 287, 87 L.Ed. 279, 63 S.Ct. 207.) The full faith and credit clause operates, however, only with respect to judgments rendered by a court whose jurisdiction is not impeached. Williams v. North Carolina (1945), 325 U.S. 226, 89 L.Ed. 1577, 65 S.Ct. 1092.

In the instant case Frances contends that Thomas did not establish a domicile in Nevada and argues, therefore, that the decree was obtained by fraud and should not be afforded full faith and credit by the Illinois courts>. Thus, the principal question before us is whether Thomas established a bona fide domicile in Nevada. The principles governing this question were enunciated by this court in In re Marriage of Goldstein (1981), 97 Ill. App.3d 1023, 1026, 423 N.E.2d 1201, 1203:

"Domicile is defined as the place where a person has his true, permanent home to which he intends to return whenever he is absent. (Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156, 51 N.E.2d 140, 144.) The question of domicile is largely one of intention, and to establish a new domicile a person must physically move to a new home and live there with the intention of making it his permanent home. Keck v. Keck (1974), 56 Ill.2d 508, 514, 309 N.E.2d 217, 220.

Of paramount importance in determining whether a given place is or is not one's residence is the intent of that person to live there as his permanent home. (Green v. Green (1976), 41 Ill. App.3d 154, 159, 354 N.E.2d 661, 667.) Whether or not a party has abandoned one residence in favor of another in a different jurisdiction is a question of fact." In re Marriage of Goldstein (1981), 97 Ill. App.3d 1023, 1026, 423 N.E.2d 1201, 1203.

In the instant case Thomas testified before the Nevada court that he had been physically domiciled in that State for the requisite period of time and that it was then his intention to remain there as his permanent home. On this uncontroverted evidence, the Nevada court found that domicile had been established.

• 3, 4 Although a foreign divorce decree may be collaterally attacked on the matter of jurisdiction, when a divorce decree is challenged in another jurisdiction a presumption of validity operates in favor of the requisite domicile. (Esenwein v. Pennsylvania (1945), 325 U.S. 279, 89 L.Ed. 1608, 65 S.Ct. 1118; Keck v. Keck (1974), 56 Ill.2d 508, 309 N.E.2d 217; see Williams v. North Carolina (1945), 325 U.S. 226, 89 L.Ed. 1577, 65 S.Ct. 1092.) The burden of overcoming a finding of domicile made by the ...


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