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02/03/87 George W. Kennedy v. the Industrial Commission

February 3, 1987





503 N.E.2d 1169, 152 Ill. App. 3d 114, 105 Ill. Dec. 163 1987.IL.114

Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.


JUSTICE McCULLOUGH delivered the opinion of the court. BARRY, P.J., and KASSERMAN, WOODWARD, and McNAMARA, JJ., concur.


Decedent, Carl Stirnichuk, died in a compensable work-related accident. Respondent, Louise Stirnichuk, filed an adjustment of claim contending that she was the lawful widow of Carl at the time of his death. Petitioner opposed the application upon the basis that at the time of Carl's death, he and Louise were divorced. The arbitrator determined after hearing that Louise was eligible to receive death benefits as the surviving widow on the basis of a circuit court order entered in the divorce proceeding after Carl's death which vacated the Stirnichuks' dissolution judgment.

On review, the Commission affirmed the arbitrator's decision but modified the award of benefits to the sum of $456.33 per week. On certiorari, the circuit court confirmed the decision of the Commission in all respects save that it reversed and remanded to the Commission for a recalculation of the applicable rate of compensation.

On appeal, petitioner contends that error occurred (1) in the determination that Louise was the surviving widow of Carl; (2) in the calculation of decedent's average wage rate; and (3) in the admission of evidence in violation of the Dead Man's Act (see Ill. Rev. Stat. 1985, ch. 110, par. 8-201).

The facts are largely undisputed. Carl and Louise were married in Lake Villa, Illinois, in 1960. Two children were adopted and were both married and emancipated by the time of these proceedings. During the winter of 1980, Carl moved to Grand Cayman, British West Indies. Louise and her daughter remained in the marital home in Waukegan, Illinois, so that the daughter could finish high school. Upon her graduation, the daughter and Louise joined decedent in Grand Cayman in 1981. It was Carl's practice to spend approximately one half of the year during the winter months in Grand Cayman. He would then return to Lake County, Illinois, to work for the petitioner as a truck driver for the remainder of the year.

In 1983 Carl returned to Lake County in March. Conflicting evidence was presented as to whether Louise was aware that Carl planned to file for divorce upon his return to Illinois. It is undisputed, however, that Carl did file a petition for dissolution of marriage on April 1, 1983, in the Lake County circuit court. Louise was personally served with a copy of summons and the petition for dissolution on April 15, 1983, in Grand Cayman by a specially appointed process server. An order of default was entered against Louise by the Lake County circuit court on June 22, 1983, upon her failure to appear in the dissolution action.

Immediately following entry of the default a further hearing was held. The circuit court found it had jurisdiction over the parties and subject matter and granted a divorce to Carl on the ground of extreme and repeated mental cruelty. A property distribution submitted by Carl was approved and incorporated in the terms of the dissolution judgment. The judgment was entered of record on June 22, 1983, the same day as the order of default.

Carl was subsequently killed July 21, 1983, when the truck he was driving for the petitioner was struck by a train.

On August 9, 1983, 48 days after entry of the final dissolution judgment, Louise filed a motion to vacate the dissolution decree under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401). The motion to vacate was subsequently allowed on September 28, 1983, by written order of the trial court in Lake County. In the order granting the motion, the trial Judge recited the following:

"It is herewith ordered that due to the manifest inequity of the order of dissolution not considering the interest in maintenance of Louise Stirnichuk, a woman unable to obtain gainful employment and a housewife during the course of the 23 year marriage & the ability of the husband to earn a substantial income at and before the entry of the decree, and the failure of the decree to provide concretely for division of marital assets considering the noted inequity, the decree of June 22, 1983, is herewith vacated instanter. ...

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