Belluomini v. Belluomini

• Decision Date: 02 July 1979
• Docket Number: No. 78-96,78-96
• Citation: 73 Ill.App.3d 836,30 Ill.Dec. 14,392 N.E.2d 669
• Parties: , 30 Ill.Dec. 14 Mary BELLUOMINI, Plaintiff-Counter-Defendant Appellee-Cross-Appellant, v. Steven R. BELLUOMINI, Defendant-Counter-Plaintiff Appellant-Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 669

392 N.E.2d 669

73 Ill.App.3d 836, 30 Ill.Dec. 14

Mary BELLUOMINI, Plaintiff-Counter-Defendant Appellee-Cross-Appellant, v. Steven R. BELLUOMINI, Defendant-Counter-Plaintiff Appellant-Cross-Appellee.

No. 78-96.

Appellate Court of Illinois, First District, First Division.

July 2, 1979.

Supplemental Opinion On Denial of Rehearing Aug. 6, 1979.

[30 Ill.Dec. 15] Robert N. Caffarelli, Wayland B. Cedarquist, Boodell, Sears, Sugrue, Giambalvo & Crowley, Chicago, for Steven Belluomini, defendant-counter-plaintiff, appellant-cross-appellee

Louis A. Rosenthal, Chicago (Sidney Z. Karasik, Chicago, of counsel), for Mary Belluomini, plaintiff-counter-defendant, appellee-cross-appellant.

GOLDBERG, Presiding Justice:

Mary Belluomini (plaintiff) filed a complaint for divorce, alimony and child support. Steven Belluomini (defendant) counterclaimed for an annulment on the ground that he was a party to a prior undissolved marriage, as plaintiff then knew. On March 11, 1977, after trial, the trial court entered judgment which: (1) granted defendant an annulment; (2) found that plaintiff had failed to prove grounds for divorce; and (3) declared the child of the parties legitimate. On June 15, 1977, the trial court entered a supplement to the judgment. Defendant was required to pay child support in a specified amount.

Defendant appealed from certain portions of the judgment and the supplement thereto. Plaintiff filed a cross appeal from denial of the divorce and alimony. In this court, counsel for defendant moved to withdraw as attorneys and to dismiss the appeal. Plaintiff objected to dismissal of the appeal. We allowed the withdrawal of counsel but denied the motion to dismiss. Subsequently, with leave of this court, counsel for defendant reinstated their appearance. Only the issues raised in the cross appeal have been briefed for our consideration.

Plaintiff testified a friend introduced her to defendant in May of 1970. She was 27 years old. Defendant was 43. He told her On March 3, 1973, defendant informed plaintiff that his divorce would be final in 6 or 7 months. He told her he loved her and asked her to marry him then. On September 23, 1973, defendant informed plaintiff that his divorce was final and they could be married. She accepted. Shortly thereafter she told defendant that she was pregnant. They were married on November 19, 1973. After the marriage ceremony, defendant asked plaintiff if she was sure she wanted the baby. Defendant told her that she could not have the baby. He told her he was not divorced, he had never been divorced and that she had to have an abortion. Plaintiff asked defendant why he had married her. He told her that he had not wanted to lose her and knew that they could not go on dating indefinitely.

[30 Ill.Dec. 16] he was from San Francisco, where he lived with his parents, he was single and had never been married. They began dating. One evening in January of 1971, defendant asked plaintiff to keep his wallet in her purse. Upon arriving home, plaintiff noticed that she still had his wallet. She examined it and discovered defendant was married and had three children. She called defendant and told him that she was going to mail the wallet back to him and she did not want to see him again. Defendant told plaintiff he had not seen his wife in 3 years and he was legally separated from her and in the process of getting a divorce. Plaintiff then agreed to and did continue to see him. At some time during this period they became closely intimate.

The next time plaintiff saw defendant was on March 9, 1974. He came to her home where she was confined to her bed due to problems relating to her pregnancy. Defendant gave her $700 and stayed the night. She saw defendant again the next weekend. He stayed 2 nights on that occasion. He telephoned her the following evening. Thereafter, plaintiff did not see or hear from defendant until June of 1974. On May 19, 1974, plaintiff gave birth to a baby boy.

In June of 1974 defendant came to plaintiff's home and gave her money for the doctor's bills. They later met on June 29 and 30 to discuss financial arrangements for the baby.

On cross-examination plaintiff testified that she asked defendant if she could see his divorce papers and defendant told her that he did not have them. Plaintiff and defendant stipulated that defendant had been at many of her family celebrations and social events from May of 1970 to November of 1973. As the trial court stated at one point, uncontradicted testimony of witnesses for plaintiff showed "a continuous course of association between the parties."

Defendant testified that he travelled constantly in his work. He met plaintiff in May 1970. At that time he was married to his present wife. They have three children. He denied any discussion with plaintiff concerning his marital status. They began dating. In January of 1971, plaintiff telephoned him to say she had discovered he was married. Defendant admitted the fact to her. Plaintiff was very upset but he never told her he was separated or in the process of getting a divorce and he never proposed marriage to her. Also, defendant testified that he and plaintiff never discussed marriage plans or an impending marriage. He never told her that his divorce was final so they could get married. The question of marriage never came up until after plaintiff learned she was pregnant.

In September of 1973 plaintiff informed defendant on long distance telephone that she had missed her period. That same month she told him she was pregnant. She asked him what they were going to do. Defendant replied that he was unable to do anything because he was already married. Plaintiff's mother suggested a sham marriage and an annulment. She told defendant that plaintiff would give him an annulment later if he paid the bills. Under the mother's threat that she would phone defendant's first wife about plaintiff's pregnancy, defendant agreed to this plan. They were married November 19, 1973. Defendant admitted returning to plaintiff's home in March of 1974. He did so because he was On rebuttal, plaintiff's mother denied making any threats to defendant or discussing the marriage until after it had taken place. She knew nothing about the marriage or pregnancy until plaintiff told her on November 22, 1973. She testified that she saw defendant at her home hundreds of times over a period of about 31/2 years.

[30 Ill.Dec. 17] afraid that his first wife would be informed of plaintiff's pregnancy.

We note here that the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 101 et seq.), became effective October 1, 1977. Notice of the cross-appeal herein was filed on September 30, 1977. Section 801(d) of this act provides:

"In any action or proceeding in which an appeal was pending * * * prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal * * * governs the appeal * * *."

Therefore, this appeal is governed by the prior divorce act, Ill.Rev.Stat.1975, ch. 40, par. 1 et seq.

One initial point requires clarification. There are actually two separate and distinct issues presented to us in this appeal. First, we are required to determine whether plaintiff was "the injured party" so that she could obtain a divorce. (See Ill.Rev.Stat.1975, ch. 40, par. 1.) Assuming that plaintiff be found entitled to a divorce, the second issue concerns the propriety of an allowance of alimony. In this regard, we must decide if plaintiff married defendant "in good faith". (Ill.Rev.Stat.1975, ch. 40, par. 20.) As required for clarity we will discuss these issues separately.

I.

The courts of Illinois recognize bigamy as a ground for annulment under the common law or for a divorce under section 1 of the Divorce Act (Ill.Rev.Stat.1975, ch. 40, par. 1). (See Cardenas v. Cardenas (1956), 12 Ill.App.2d 497, 506, 140 N.E.2d 377, Leave to appeal denied, 11 Ill.2d 629.) Section 1 of the Divorce Act provides:

"In every case in which a marriage has been or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged * * * that either party * * * had a wife or husband living at the time of such marriage * * * it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract."

In the judgment entered March 11, 1977, the trial court annulled the marriage. This was based upon a finding that plaintiff was not entitled to a divorce because she did not marry defendant "in good faith by reason of the fact that she knew or should have known" that defendant had a prior undissolved marriage. In our view, "good faith" is not the correct test to apply to this phase of the case. Good faith is a factor only in the second phase of the case with reference to alimony. In addition the judgment of March 11, 1977, erroneously applied the standard that plaintiff "knew or should have known" that defendant was previously married. The proper and only test to be applied here is whether plaintiff was "the injured party." An "injured party" may be defined as one who did not know that his or her intended spouse had a prior undissolved marriage. Consequently, the only factual issue pertinent here was whether plaintiff knew that defendant was not divorced at the time she married him.

After the trial on this first issue had been completed, on September 23, 1976, the parties and their counsel appeared in open court. The trial judge then stated some findings of fact. He found that plaintiff had a right to rely on defendant's statements that he was involved in a divorce case. Defendant told her this at the time she first found out that he was married and she then wanted to end their relationship. The trial court commented upon the close type of association between these parties and plaintiff's family. The court stated that when defendant told plaintiff he was going to be divorced within 6 months she had the right to...