Alikonis v. Alikonis

• Citation: 343 N.E.2d 161,36 Ill.App.3d 159
• Decision Date: 26 February 1976
• Docket Number: No. 12695,12695
• Parties: Ella Marie ALIKONIS, Plaintiff-Appellee, v. Justin John ALIKONIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 161

343 N.E.2d 161

36 Ill.App.3d 159

Ella Marie ALIKONIS, Plaintiff-Appellee, v. Justin John ALIKONIS, Defendant-Appellant.

No. 12695.

Appellate Court of Illinois, Fourth District.

Feb. 26, 1976.

Rehearing Denied March 26, 1976.

Robert J. Alikonis, Washington, D.C., Bach & Laudeman, Ltd., Bloomington (William S. Bach, Bloomington), for appellant.

Dunn, Brady, Goebel, Ulbrich, Morel & Jacob, Bloomington (Thomas N. Jacob, Bloomington, of counsel), for appellee.

GREEN, Justice:

On April 10, 1972, the Circuit Court of McLean County entered a decree purporting to divorce plaintiff Ella Marie Alikonis from defendant Justin John Alikonis. On June 21, 1972, a decree was entered purporting to dispose of questions of property rights and alimony which had been reserved by the first decree. On March 5, 1974, defendant filed an amended petition to vacate or modify both decrees and on March 26, 1974, filed a document entitled 'Petition to Modify Alimony Award.' Plaintiff filed a motion to dismiss the amended petition and 'request for fees' and made an oral motion to strike the petition to modify. The pending matters were consolidated for a hearing after which the court entered an order dismissing the amended petition, striking the petition to modify and awarding to plaintiff attorney's fees in the sum of $1,900. Defendant appeals.

The amended petition was brought under Section 72 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 72). Its principle thrust was an allegation that defendant had recently learned that plaintiff's allegations in her complaint for divorce that she and defendant were married were fraudulent in that she in fact knew then that their purported marriage was invalid because she was not validly divorced from her prior husband. That divorce was alleged to have been obtained in Alabama at a time when plaintiff knew that neither party had proper residence or domicile there.

Defendant's contention is based on the theory that the invalidity of the divorce from the prior husband would invalidate her purported marriage to plaintiff which would in turn have deprived the court of subject matter jurisdiction in the instant divorce case.

We do not find the allegations of the amended petition sufficient to set forth the invalidity of the Alabama divorce. The Full Faith and Credit Clause of the United States Constitution forbids a collateral attack in this state of an Alabama divorce decree by a party to that decree, raising the question of the domicile of the parties where the defendant to the Alabama case 'participated in the proceedings, was accorded full opportunity to contest the jurisdictional issue, and where the decree is not susceptible to such collateral attack in the courts of the state which rendered the decree' (Sherrer v. Sherrer, 334 U.S. 343, 351--352, 68 S.Ct. 1087, 1091, 92 L.Ed. 1429, 1436). When such a decree cannot be attacked in this state by a party, it cannot be attacked here by a stranger. Johnson v. Mullberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552; In re Day's Estate, 7 Ill.2d 348, 131 N.E.2d 50.

The effect of the decisions of the courts of this state is to hold that the defendant to the foreign decree will be held to have had sufficient participation and 'opportunity to contest the jurisdictional issue' if the decree is not Ex parte. In re Day involved a ruling by a trial court permitting a stranger to successfully collaterally attack a Nevada divorce decree on the grounds of lack of domicile of the parties. The defendant to that decree had appeared by counsel. Although affirming on other grounds, the Supreme Court ruled that the Nevada decree should have been accepted and stated:

'. . . the Sherrer and Coe (Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451) cases did not predicate their holdings upon the extent of defendant's activity in the divorce proceedings, but rather upon the fact that he entered an appearance and had the opportunity to contest the jurisdictional issues. It can hardly make a rational difference that the question of domicile is in fact vigorously contested. The extent of activity, contest or participation must vary in almost every case, and it is not in the interest of stability and permanency of divorce decrees, rights of property and other important rights dependent thereon, that such indefinite criteria determine the question of validity.' (7 Ill.2d at 353, 131 N.E.2d at 52--53.)

In Teich v. Teich, 132 Ill.App.2d 348, 356, 270 N.E.2d 525, 531, the wife had secured a divorce in Nevada in a proceeding where the husband had also appeared by counsel. The court held the wife would not be permitted to collaterally attack the decree in Illinois on the basis of her lack of domicile in Nevada at the time of the entry of the decree. In citing In re Day the court noted that 'once the appearance by counsel was established, the extent of activity in contesting the jurisdiction was immaterial.' In the instant case, a transcript of the Alabama proceeding attached to the amended petition shows that the defendant to that proceeding appeared by a Pro se written entry of appearance. Since a defendant can appear and defend Pro se and since the extent of the activities contesting jurisdiction are immaterial, the Alabama divorce cannot be collaterally attacked in Illinois if it could not be so attacked in Alabama.

In Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725, a party was permitted to collaterally attack an Alabama divorce decree on the grounds that neither party had proper residency prior to its entry. In Yerger v. Cox,281 Ala. 1, 198 So.2d 282, and Weisner v. Weisner, 282 Ala. 626, 213 So.2d 685, it was held that in an Alabama proceeding where the parties were nonresidents, a stranger to an Alabama divorce decree could not collaterally attack that decree on jurisdictional grounds when the decree was not void on its face and did not affect a right of the attacking party that was in existence at the time of the decree. In the instant case defendant had no preexisting rights at the time of plaintiff's Alabama divorce and that decree is not shown to be void on its face. That...