Chamberlin v. Chamberlin
| Decision Date | 19 December 1969 |
| Docket Number | Gen. No. 53890 |
| Citation | 119 Ill.App.2d 295,256 N.E.2d 159 |
| Parties | Betty CHAMBERLIN, Plaintiff-Appellant, v. George L. CHAMBERLIN, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Erwin Cohn, Chicago, for appellant.
Daniel A. Gallagher, Chicago, for appellee.
This is an appeal by plaintiff, Betty Chamberlin, from a post-decree order of January 17, 1969, in which the trial court ordered plaintiff's present husband, Rudy Yukich, to pay defendant the sum of $100.00 rent, per month, for the premises located at 9140 South Clifton Park, Evergreen Park, Illinois, and further ordered that plaintiff and her four minor children vacate the above mentioned premises by the end of the June 1969 school year. Plaintiff contends that error was committed in that the trial court's order affected a nonparty to the lawsuit and the vacating of the premises was in direct violation of the divorce decree.
The record consists entirely of pleadings filed in this cause. A judgment of divorce was entered on December 12, 1965, in favor of the appellant on the grounds of extreme and repeated cruelty committed by the defendant. The provisions of the decree found the equities in favor of the plaintiff, and then made the following awards which are germane to this appeal:
Custody of the minor children was given to the plaintiff with visitation rights established for the defendant; defendant was to pay $50.00 per week for child support and was to assume payment of all medical, dental, hospital and other expenses of the minor children; the decree then provided 'that the appellant shall have the right to sole and exclusive possession of the premises located at 9140 Clifton Park, Evergreen Park, Illinois, until she abandons same or until the youngest of the minor children of the parties reaches her majority, whichever event occurs sooner'; defendant was awarded title to the premises and plaintiff was required to quit-claim all her interest to the defendant, who was obligated to maintain the premises and pay all encumbrances, taxes, repairs and other expenses in preserving the home; plaintiff was awarded all the household furnishings while defendant was allowed to remove his personal belongings from the premises; defendant was required to deliver 100 shares of stock and the family automobile to the plaintiff; and the final provision contained a complete release of present and future rights of alimony, dower, inheritance and all other right, title, claim and interest by reason of the marital relationship which had existed between the parties.
Following the divorce decree there were several post-decree matters dealing with the amount of child support and child custody problems which arose between the parties. Finally, on January 17, 1969, the order which is the subject of this appeal was entered. The defendant had filed a post-decree petition which sought the plaintiff's removal from the premises located at 9140 Clifton Park in Evergreen Park or alternatively that plaintiff should collect rent from Rudy Yukich and remit this rent to defendant; further, the petition sought relief from interference with defendant's visitation rights with his minor children. In the petition, defendant alleged and plaintiff admitted that she had married Mr. Yukich sometime prior to the filing of this petition.
With regard to that part of the order requiring Rudy Yukich to pay rent to the defendant, the plaintiff argues that the court lacked power to order a non-party to perform this act. It is axiomatic that a court must have jurisdiction over the person before it can require performance under its order or decree. Therefore, we must reverse that part of the decree concerning the payment of rent by the plaintiff's present husband to the defendant because Mr. Yukich was not a party to this lawsuit. The trial court's order can have no effect upon this individual.
The remaining issue concerns the trial court's order that plaintiff and her minor children vacate the premises at the end of the current school term. The plaintiff contends that the provisions of the decree concerning possession of the home were alimony in gross and were not modifiable by subsequent proceedings. Ill.Rev.Stat. (1967), Ch. 40, Sec. 19. Plaintiff argues this was the intent of the parties when viewed with all the other provisions of the divorce decree and that it would be error to impose the condition of remarriage upon this provision of the decree. Defendant maintains that the trial court was correct in modifying the decree since this was a hybrid provision, providing alimony for the wife and support for the minor children, also citing Chapter 40, Section 19 of the Illinois Revised Statutes. He further maintains that because of the indefinite nature of this provision, this must be characterized as alimony which may...
To continue reading
Request your trial
-
Melichar v. Ost
...103, 136 N.E.2d 594, 595 (1956); Kohler v. Kohler, 31 Ill.App.2d 151, 175 N.E.2d 603, 604 (1961); Chamberlin v. Chamberlin, 119 Ill. App.2d 295, 256 N.E.2d 159, 161 (1970). The question of whether the settlement agreement in this case was intended by the parties to discharge the husband's c......
-
Lamp v. Lamp
...to the father, the court concluded that it was authorized to modify the decree, citing as authority Chamberlin v. Chamberlin, 119 Ill.App.2d 295, 256 N.E.2d 159 (1st Dist. 1970). Susan Lamp contends on appeal that the award of possession of the marital home as provided in the original decre......
-
Marriage of Stanley, In re
...Steve relied, In re Marriage of Christianson (1980), 89 Ill.App.3d 167, 44 Ill.Dec. 397, 411 N.E.2d 519 and Chamberlin v. Chamberlin (1969), 119 Ill.App.2d 295, 256 N.E.2d 159), there is no evidence that Dawn gave up some property interest of her own as a quid pro quo for her right to posse......
-
Simmons v. Simmons
...are not parties to the proceeding. (See Ylonen v. Ylonen (1954), 2 Ill.2d 111, 124, 117 N.E.2d 98, 105; Chamberlin v. Chamberlin (1969), 119 Ill.App.2d 295, 298, 256 N.E.2d 159, 160; Knol v. Knol (1912), 171 Ill.App. 412, 413.) This view was emphasized in Kujawinski v. Kujawinski (1978), 71......