Anderson v. Anderson

• Decision Date: 07 February 1955
• Docket Number: Gen. No. 10759
• Citation: 4 Ill.App.2d 330,124 N.E.2d 66
• Parties: Lillian ANDERSON, Plaintiff-Appellee, v. Arthur R. ANDERSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 66

124 N.E.2d 66

4 Ill.App.2d 330

Lillian ANDERSON, Plaintiff-Appellee, v. Arthur R. ANDERSON, Defendant-Appellant.

Gen. No. 10759.

Appellate Court of Illinois, Second District.

Feb. 7, 1955.

Murphy, Murphy, French & Murphy, Chicago, for plaintiff.

Paulson & Jordan, Elgin, for defendant.

CROW, Justice.

On June 8, 1951, a decree of divorce upon the grounds of desertion was entered herein on the complaint of Lillian R. Anderson, plaintiff-appellee, hereinafter referred to as the plaintiff, against Arthur R. Anderson, defendant-appellant, hereinafter referred to as the defendant. On March 13, 1953 the defendant filed a verified 'petition in the nature of a writ of error, coram nobis, to vacate and set aside decree for divorce and for leave of defendant to file a counterclaim for divorce and for the care, custody, and control of minor child.' The plaintiff filed a verified answer to that petition. On November 6, 1953, the defendant filed a verified 'amended petition of defendant to vacate decree etc.' On January 8, 1954, after a hearing on the defendant's petition, as amended, and the answer, the Trial Court entered an Order finding that the defendant had failed to sustain the petition and that it should be denied and, accordingly, denied and dismissed the defendant's petition. From that order the defendant has appealed.

The defendant's theory is that the plaintiff at the time of the decree, June 8, 1951, had not 'resided in the State one whole year next before filing * * * her complaint' (Ch. 40, Ill.Rev.Stats.1953, par. 3), the proceedings were not 'had in the county where the plaintiff or defendant resides' (Ch. 40, Ill.Rev.Stats.1953, par. 6), the Court therefore had no jurisdiction, 'fraud, perjury, and deceit' were committed by the plaintiff on the Court and defendant, and 'duress and undue influence' were perpetrated by the plaintiff on the defendant.

The original complaint of the plaintiff in the divorce case, filed June 8, 1951, the same date as the original hearing and decree, alleges, in effect, so far as material, that 'she is an actual resident of the County of Kane and State of Illinois, and has been a resident of the State of Illinois for more than one year last past continuously and immediately preceding the filing of the complaint'; the plaintiff and defendant were married August 24, 1937; they have no children of their own but have one adopted child, a boy, born June 14, 1945, who is in the custody of the plaintiff; plaintiff has at all times conducted herself as a kind, true, faithful, and affectionate wife; defendant has, without any reasonable or just cause, on or about March 15, 1950, deserted and absented himself from the plaintiff and has persisted in such desertion until the present time; the parties have no property except household furniture and an automobile, title to both being in both names; defendant is a Chaplain in the United States Navy, earning about $400 per month, and able to support the plaintiff and the child. The Complaint prays for a divorce, the award of custody of the child to the plaintiff, support for the plaintiff and the child, solicitor's fees, costs, the award of the household furniture to the plaintiff, and general relief.

On the same date, the defendant's appearance was filed, signed by him, waiving service of summons, consenting to the jurisdiction of the Court, and consenting to an immediate hearing at any time without notice to him. The appearance was acknowledged and notarized the same date, reciting that the defendant had that day in person appeared before the notary and acknowledged that he signed the appearance as his free and voluntary act for the uses and purposes therein set forth.

On the same date, the defendant's answer was filed, signed by him, admitting the allegations of the complaint as to the parties' marriage and as to the adopted child, and denying all other allegations of the complaint, denying the plaintiff is entitled to the relief prayed, and praying that the complaint be dismissed. No attorney's name appears thereon as attorney for the defendant.

The decree of divorce, so far as material, recites that the cause came on to be heard on the complaint, the answer, and appearance, and the evidence adduced, and finds that the Court 'has jurisdiction of both the subject matter and of the parties to this cause, and that the equities of said cause are with the plaintiff'; that 'the plaintiff and the defendant are residents of the City of Elgin, County of Kane, and State of Illinois, and have been such residents for more than one year prior to the filing of the complaint'; the parties were married (as alleged in the complaint); they have one adopted child, etc., (as alleged in the complaint); the plaintiff has at all times conducted herself as a kind, etc., wife (as alleged in the complaint); the defendant, without any reasonable or just cause therefor, did on or about March 15, 1950 desert and absent himself from the plaintiff, etc. (as alleged in the complaint); that a property settlement has been entered into between the parties, which is satisfactory to each, is reasonable, and is approved; the defendant is a Chaplain, etc., has certain earnings, is able to support plaintiff and the child, and that the child is physically incapacitated and requires medical attention etc.; and the plaintiff is a fit and proper person to have the custody of the child. The decree then divorces the parties; awards custody of the child to the plaintiff 'with the right to the said defendant to see said child at all reasonable times and places'; orders the defendant to pay plaintiff $100 per month alimony for her support, and $125 per month child support, totalling $225; and orders the defendant to pay the plaintiff $150 for her attorney's fees, costs, and suit money.

The defendant's verified petition, filed March 13, 1953, in the nature of a writ of error, coram nobis, to vacate and set aside decree for divorce etc., alleges, in effect, so far as material, that he is a Lt. Comdr., Chaplain Corps, United States Navy, stationed at U. S. Naval Station, Great Lakes, Illinois; a decree of divorce was entered June 8, 1951; that on March 15, 1950 and for over a period of a year the defendant and plaintiff lived and cohabited in Flushing, N.Y.; that he was never separated from her because of his fault at any time since marriage except on Navy duties and then for never more than 3 weeks periods while at sea; he maintained an apartment for self and family at Hunter Gardens, Flushing, Long Island, N.Y., from January 1, 1950 to March 30, 1951; the plaintiff's only corroborating witness, Lillian Strohm, her mother, lived with defendant and plaintiff at that apartment in the fall of 1950 for several weeks; he called at the office of the plaintiff's attorney, in Elgin, upon the plaintiff's invitation, signed some papers, but did not understand that one was an appearance and waiver of service of summons and consent to the immediate hearing of said cause, and he was never sworn by any notary on the acknowledgment attached to the appearance; he also discovered subsequently that he had signed an answer which was filed June 8, 1951; he never at any time saw a copy of the complaint and did not know the allegations thereof until they were examined by his attorneys; when he went to the plaintiff's attorney's office he was unaware of plaintiff's plans, did not question same until they entered the office, defendant then realized he was 'tricked' into going there, then realized for the first time that plaintiff had in mind divorce proceedings, his grief and shock so overwhelmed him he did not have free use of his faculties, he felt he did not care what happened, did not understand what was happening; and if he executed any documents, he did not realize the significance of same; plaintiff had certain personal property of defendant and he had gone to Elgin to obtain it and make arrangements for a new apartment near Chicago when he discovered plaintiff's foregoing plans; he can corroborate his allegations by disinterested witnesses and documentary evidence to prove 'there was never asserted any statutory grounds for desertion'. The petition then prays the decree be vacated, the custody of the child be given defendant, leave be given him to counterclaim for divorce, plaintiff be required to answer his counterclaim, the cause be set for immediate hearing, and for general relief.

The plaintiff's verified answer to defendant's petition to vacate alleges, in effect, in substance, so far as material, that defendant is a Chaplain, U. S. Navy; admits the decree; admits she testified at the divorce hearing that she had resided in Elgin, Illinois all her life and says such statement and all her other testimony is true; says defendant was guilty of cruel and unhuman conduct toward her but such was not mentioned in the proceedings because defendant is a Minister and she did not wish to harm him; admits that during times when defendant was stationed outside of Illinois he maintained accommodations convenient to him in his employment; denies defendant's allegations as to his execution of the appearance, etc., and says any documents signed by him were read by and thoroughly understood by him; says the answer was read and understood by defendant at the time it was signed; denies defendant's allegations as to not seeing a copy of the complaint, and says a copy was submitted to him before the filing of the case; denies defendant's allegations as to the circumstances of his visiting her attorney's office etc., and says she had told defendant she would not submit to indignities and cruelty suffered, insisted upon a divorce and custody of the child, negotiations went on for many weeks before filing the case, on his persuasion she agreed not to mention cruelty and other grounds which defendant said would cause him to lose his position in the Navy and Ministry, defendant's primary concern...