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In Re Marriage of Allison

OPINION FILED JULY 19, 1984.

IN RE MARRIAGE OF SUSAN ANN ALLISON, PETITIONER-APPELLEE, AND CHARLES F. PETER ALLISON, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lawrence County; the Hon. A. Hanby Jones, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The respondent, Charles F. Peter Allison, appeals from a judgment granting dissolution of marriage and related relief entered by the circuit court of Lawrence County. From the time of the filing of the petition for dissolution to the time of filing of his appellant's brief, the respondent has been in the custody of the Illinois Department of Corrections as a convicted felon and incarcerated in the penitentiary at Centralia. On appeal respondent contends (1) he was denied his right to procedural due process when he was not allowed to appear in court during the dissolution proceedings, and (2) petitioner did not prove grounds for dissolution of the marriage.

Petitioner has failed to file a brief in this court. We find, however, that the issues presented can be decided by this court without the aid of a brief by petitioner. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

On July 1, 1982, petitioner filed a petition for dissolution of marriage which alleged that respondent was an inmate of the Centralia Correctional Center. The alleged grounds for dissolution were that respondent had been guilty of extreme and repeated mental cruelty toward the petitioner. The petition alleged that the parties had not acquired any marital property during the marriage, but that the petitioner had acquired both prior to and during the marriage certain non-marital property which should be assigned to her. The petition contained no list or description of such property. It concluded with a prayer for dissolution of the marriage, for custody of a minor child of the parties, for maintenance, child support and attorney fees and for assignment of petitioner's non-marital property.

On July 19, 1982, respondent filed a petition for a writ of habeas corpus ad testificandum. On July 27, 1982, respondent filed a motion to proceed in forma pauperis, a motion for appointment of counsel, a motion for discovery and an answer to the petition.

In his answer, respondent denied that he had inflicted any extreme and repeated mental cruelty and affirmatively alleged that the parties had acquired marital property during the marriage. Respondent's answer also asked that custody of the minor child be awarded to him. Petitioner filed a "Response to Answer" in which she denied that the parties had acquired any marital property during the marriage, but asserted that "if Respondent has knowledge of any property acquired during the marriage of the parties, and considered by Respondent as marital property, that Petitioner should have your [sic] proportionate part or share of said marital property." On July 30, 1982, the court granted the motion to proceed in forma pauperis and the motion for discovery but denied the motion for appointment of counsel.

On August 27, 1982, petitioner filed and served 18 written interrogatories upon the respondent. Interrogatories 13 through 15 were:

"13. Do you claim you and petitioner own marital property? If your answer is in the affirmative state what property you consider as marital property.

14. Do you claim any of the property in any of the proceedings as non-marital property.

15. If you claim any property mentioned by you is your own and separate property, please list such property claimed as separate property, and state the facts upon which you base your claim."

The interrogatories were otherwise concerned with respondent's employment, earnings, occupation and proposed arrangements for child care in the event he would be awarded custody. Respondent filed answers to all the interrogatories, in which he stated that the car, kitchen appliances, TV, clock-radio, sewing machine and household appliances were marital property. His answer to interrogatories also contained a list of both specific and generally described personal property, all of which he claimed as his non-marital property by reason of his ownership of it prior to the marriage.

By a record sheet entry on November 16, 1982, the case was set for trial on December 15, 1982. On December 10, 1982, respondent again filed a petition for writ of habeas corpus ad testificandum. On December 15, 1982, the case was continued to December 30, 1982. On December 21, 1982, respondent sent a letter to the clerk of the court inquiring whether his December 10 petition for a writ of habeas corpus ad testificandum could be used for the new court date or whether he would have to file another petition. The clerk replied by stating that she did not know and could not advise respondent. Subsequently the cause was again continued to January 20, 1983, and respondent filed another petition for writ of habeas corpus ad testificandum.

On January 26, 1983, the court denied respondent's petition for writ of habeas corpus ad testificandum, and a trial was held on the petition. Respondent, of course, did not appear, and he was not represented.

The transcript of the proceedings at trial consists of but three pages. The questions asked of and answered by the petitioner related to the marriage, the birth of the child, the marital discord, which was described in general terms, respondent's conviction of the crime of indecent liberties with a minor and petitioner's need for $25 per week as child support. Petitioner's attorney asked no questions regarding the property of either of the parties, marital or otherwise, nor was any evidence of any nature ...


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