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03/09/94 MARRIAGE SHIRLEY M. PARKS

March 9, 1994

IN RE MARRIAGE OF SHIRLEY M. PARKS, PETITIONER-APPELLANT, AND LARRY J. PARKS, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Madison County. No. 76-D-792. Honorable Robert Hennessey, Judge Presiding.

Welch, Goldenhersh, Rarick

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

The parties, Shirley M. Parks and Larry J. Parks, were married for the first time on October 14, 1961. This marriage ended in divorce on June 3, 1976. In the decree for divorce, Larry was ordered to pay to Shirley, "the sum of FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) as Alimony in Gross to be paid * * * at the rate of TWO HUNDRED DOLLARS ($200.00) per month until paid in full."

The parties apparently reconciled their differences, at least temporarily, for they were remarried on October 14, 1976, the anniversary of their first marriage and a mere 4 1/2 months after their divorce. However, exactly 16 years from the date of the parties' short-lived divorce, on June 3, 1992, Shirley filed in the circuit court of Madison County a petition for a rule to show cause and for other relief alleging that Larry had failed to pay the $5,000 alimony in gross which he had been ordered to pay to her in the 1976 divorce decree and that the parties had never entered into any written agreement nor had any court order been entered waiving or vacating Larry's obligation under that decree. Shirley sought a judgment in the amount of $5,000 plus statutory interest and an award of attorney fees and costs.

Larry responded to Shirley's petition by arguing that the parties' remarriage had annulled the prior divorce decree and that Shirley could not now enforce any of the provisions contained therein. Larry sought dismissal of Shirley's petition. Shirley responded that alimony in gross is akin to a property settlement and as such is nonmodifiable and enforceable even upon the recipient party's remarriage.

After receiving written memoranda and hearing oral argument, the circuit court of Madison County agreed with Larry, finding in its order entered September 18, 1992: "The remarriage of the parties to each other caused the divorce decree which was entered on June 3, 1976 to be null and void. At that time the parties were restored to their rights as if they had never been divorced." Accordingly, the court granted Larry's motion to dismiss Shirley's petition for rule to show cause and for other relief. Shirley filed her notice of appeal on October 14, 1992.

We note for the curious reader that the record on appeal does contain references to a pending divorce action between the parties, although the pleadings and proceedings therein are not contained in the instant record on appeal. The instant action is one to enforce the 1976 divorce decree and therefore part of the record in the 1976 divorce proceeding.

The issue before us, as we see it, is what effect does a remarriage between the parties to a prior divorce action have upon the judgment or decree of divorce entered therein. As we have stated, the trialcourt found that the remarriage rendered the prior divorce decree "null and void" and that "the parties were restored to their rights as if they had never been divorced". After reviewing the very limited case law pertinent to this issue, we conclude that the trial court erred in finding that the prior divorce decree was rendered "null and void" by the subsequent remarriage of the parties. However, we also conclude that the trial court properly dismissed Shirley's petition for rule to show cause and for other relief because we find that, upon the remarriage to each other of parties to a divorce action, the prior divorce decree becomes not null and void but unenforceable as between those two parties. Because the judgment of the trial court may be sustained upon any ground warranted, regardless of whether it was relied upon by the trial court and regardless of whether the reason given by the trial court was correct ( Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12), we hereby affirm the order of the circuit court of Madison County dismissing Shirley M. Parks' petition for rule to show cause and for other relief.

The first Illinois case to discuss the effect of a remarriage upon a prior divorce decree is In re Marriage of Leon (1980), 84 Ill. App. 3d 50, 404 N.E.2d 1071. In Leon, this court held that the trial court in a first divorce action is divested of further jurisdiction with regard to the division of property upon the subsequent remarriage and redivorce of the parties. In that case, the parties were married and divorced in Illinois, and the issue of property division was reserved for future consideration by the court. The parties remarried and again divorced in Arizona, where a statute provided for the division of property. The wife then returned to Illinois, where she asked an Illinois court to determine the issues of property division reserved in the first divorce decree, which the court did. The appellate court held that the trial court had improperly exercised subject matter jurisdiction over the property of the parties. It was held that the Arizona divorce decree superseded the provisions of the Illinois divorce and divested the Illinois court of further jurisdiction.

We note that Leon did not hold that the remarriage of the parties rendered the earlier divorce decree null and void. Leon merely held that a second divorce of the same parties supersedes their first divorce decree and divests the court of jurisdiction to enforce the first decree.

In deciding the Leon case, this court relied on the Kansas case of Mitchell v. Mitchell (1951), 171 Kan. 390, 233 P.2d 517. In Mitchell, a wife sought specific performance of a property settlement contract entered into between the husband and the wife in contemplation of divorce. Following their divorce, the parties remarried. They were, however, divorced again. The wife filed a petition alleging that the husband had failed to pay to her the sums due under the original property settlement contract and to otherwise comply therewith. The trial court granted the wife's petition. The appellate court reversed, finding that all matters of property settlement between the husband and the wife could have been adjudicated in the second divorce action, and if not there presented, the second divorce judgment was a bar to a subsequent reassertion of such rights between the husband and the wife. Because the issues of property settlement could have been adjudicated in the second divorce action and were not, they cannot be the subject of subsequent litigation.

As in Leon, the Mitchell decision states nothing about the first divorce decree being rendered null and void by the parties' subsequent remarriage. Mitchell merely holds that a second divorce bars any action to enforce the first divorce decree, any such issues being properly litigated in the second divorce action.

The next Illinois case to address this issue is Ringstrom v. Ringstrom (1981), 101 Ill. App. 3d 677, 428 N.E.2d 743. The Ringstrom court relied on Leon, which it found to be in accord with the vast weight of authority from other jurisdictions. In Ringstrom, the parties were married and divorced, and the husband was ordered to pay child support to the wife. The parties remarried and were again divorced. Subsequent to the second divorce, the wife filed a petition for rule to show cause alleging the husband's failure to pay the child support ordered under the first divorce decree for the period from entry of that decree to the parties' remarriage. The wife asked the court to enforce the first divorce decree. The trial court refused, finding that there could not be a claim for arrearage in child support under the first decree and that any such claim for arrearage should have been presented in the second divorce action. The appellate court affirmed, concluding that once ...


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