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04/14/88 In Re Marriage of Larry Alvin Mccaskey

April 14, 1988

IN RE MARRIAGE OF LARRY ALVIN MCCASKEY, PETITIONER-APPELLEE


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and Cross-Appellant, and BILLIE LUCILLE McCASKEY,

Respondent-Appellant and Cross-Appellee

522 N.E.2d 300, 167 Ill. App. 3d 860, 118 Ill. Dec. 845 1988.IL.539

Appeal from the Circuit Court of Marion County; the Hon. Richard H. Brummer, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON, P.J., and CALVO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

This is an appeal from the denial of a petition for relief from judgment filed by respondent, Billie McCaskey. A judgment of dissolution of marriage was entered on April 9, 1985. The petition filed by Billie was in the form of a motion brought under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), attacking the judgment in two counts. Count I alleged that the court did not have subject matter jurisdiction when it entered the judgment because neither party was a resident of the State of Illinois. Count II alleged that petitioner, Larry McCaskey, exercised coercion or duress upon respondent, Billie McCaskey, in procuring the settlement agreement incorporated in the final judgment of dissolution. Petitioner, Larry McCaskey, denied the allegations and a bench trial was conducted on the issues after extensive discovery proceedings.

On February 6, 1987, the trial court entered a judgment denying the petition, finding that it had subject matter jurisdiction and that the marital agreement was not obtained as a result of coercion or duress. The court ordered Larry to pay Billie's attorney fees in the sum of $3,071.75 and costs.

Billie appeals from the judgment of February 6, 1987, except for the provision of attorney fees. Larry cross-appeals on the awarding of attorney fees.

The facts in evidence and the pleadings disclose that the parties were first married in Illinois in 1954 and have four children, all of whom are emancipated. They were divorced in 1979 in Illinois, but continued to live together. On February 20, 1984, the parties were again married in Florida, and lived together until December 1984. A judgment of dissolution of marriage with a marital settlement agreement attached was entered on April 9, 1985. On December 9, 1985, Billie filed a petition for relief from the judgment of April 9, 1985.

At the bench trial that followed, the testimony revealed that Larry McCaskey grew up in the East St. Louis area and was married to Billie in 1954. They moved to Centralia in 1973 and purchased a business known as Travelectric. They lived at Route 7, Centralia, on Walnut Hill Road until September 1982. He and Billie were divorced in 1979, but continued to live together. In 1978, he purchased a lot in Fairfield Glade, Tennessee. Later, in 1981, he purchased a two-key villa which became rental property. Then, in November 1982, he purchased a town house for $67,500. In 1982 they sold their home in Centralia. They owned another house on Route 5, Centralia, that his parents rented and moved into in December 1982. Larry's parents still live there. Others had rented it before his parents. Larry and Billie stayed at the Racket Club for a short time in 1982 before they went to Tennessee. Billie owned a place in Florida and they spent time in both places. As previously indicated, they were remarried in Florida on February 20, 1984.

As a preliminary matter, Billie argues that the court erred in refusing to allow into evidence income tax returns for the years 1980 through 1983. We disagree. There was no argument at trial as to their admission on the issue of jurisdiction and, furthermore, it appears from the record that all the necessary facts were before the court and that all tax returns were furnished to Billie, including the 1984 and 1985 returns that were admitted. The court correctly held that the omitted returns were irrelevant.

Billie maintains in her first count that the court lacked subject matter jurisdiction because neither party was a resident of the State of Illinois for the requisite period. In this case, as in the case of Davis v. Davis (1973), 9 Ill. App. 3d 922, 293 N.E.2d 399, we have a situation where an Illinois resident has been absent from the State. Affirmative acts of abandonment of the Illinois residence must be proved to sustain a contention of abandonment. The key issue as to count I is whether the trial court's finding of subject matter jurisdiction was against the manifest weight of the evidence. The question of whether Larry intended to abandon his residence in Illinois was ...


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