Davis v. Davis, No. 57048

CourtUnited States Appellate Court of Illinois
Writing for the CourtBURKE
Citation9 Ill.App.3d 922,293 N.E.2d 399
PartiesShelley G. DAVIS, Plaintiff-Appellee, v. Laura G. DAVIS, Defendant-Appellant.
Decision Date15 January 1973
Docket NumberNo. 57048

Page 399

293 N.E.2d 399
9 Ill.App.3d 922
Shelley G. DAVIS, Plaintiff-Appellee,
v.
Laura G. DAVIS, Defendant-Appellant.
No. 57048.
Appellate Court of Illinois, First District, First Division.
Jan. 15, 1973.
Rehearing Denied Feb. 15, 1973.

[9 Ill.App.3d 924]

Page 401

Martin, Craig, Chester & Sonnenschein, Chicago, (Charles G. Chester and Frana C. Biederman, Chicago of counsel), for defendant-appellant.

Hoffman & Davis, Chicago (Maurice L. Davis and Alvin L. Kruse, Chicago, of counsel), for plaintiff-appellee.

BURKE, Presiding Justice.

Shelley G. Davis filed a complaint for divorce in Cook County, Illinois from Laura G. Davis alleging various acts of mental cruelty. Service was had by publication on Laura, an out-of-state resident. Laura filed a special and limited appearance with supporting affidavits to contest the jurisdiction of the court. She moved to quash service and dismiss the complaint, based on lack of jurisdiction of her person. After a hearing, the court concluded that it had jurisdiction of the parties, and denied Laura's motion. The case went to trial. Laura did not file an answer and did not participate further in the proceedings. The court entered a decree of divorce, gave Laura custody of the parties' minor child with visitation rights to Shelley, denied alimony to either party, barred either party from participating in the property rights of the other, and set child support by the father at $125 per month. Laura, appealing, asserts that [9 Ill.App.3d 925] Shelley did not meet the Illinois residency requirement, that her special appearance conferred only in rem jurisdiction on the court, and that she had a right to rely on the trial judge's statement that the power of the Illinois court was limited to in rem jurisdiction.

The facts are as follows. Shelley was born in Illinois. Some time around age

Page 402

eighteen he registered for the draft in Illinois. He lived with his parents at 616 N. Rush Street, Chicago, Illinois, from the time he was twelve years old. About four years prior to this suit his parents moved to 247 E. Chestnut, Chicago. Shelley changed his voting address and his draft board residence address to the new location, at which one bedroom was set aside for his use. He kept some of his possessions there. He attended his last year of high school, all of college and most of graduate school outside of Illinois. This period extended from 1954 until 1971, when he was awarded a doctorate in musicology by New York University. During his absence, he continued to vote from the Chicago address. In February 1971, after this suit was filed, a canvass of voters resulted in his name being stricken from the voting lists. Before the trial in this case, however, he had been reinstated as a registered voter. He has filed his Federal income tax returns in Chicago and has continued to receive some correspondence at his Chicago address.

Shelley was married to Laura on August 12, 1967 in New York State. About a month after their marriage the couple moved to an apartment building owned by Laura in New York City. The parties have one child born of their marriage.

Aside from employment in his father's law office in Chicago as a clerk during 1960 and 1961 while he was attending law school, Shelley's employment has been outside of Illinois. He taught at Emory University in Atlanta, Georgia, in 1962 and 1963. He was an instructor at New York University from 1966 until 1969, when he took off a year to write his doctoral dissertation. He began a full-time teaching job at the University of Maryland, College Park, Maryland, in September 1970, where he was employed at the commencement of this suit.

Shelley maintained a savings account at The First National Bank of Chicago from about 1960 until the present. While studying in New York, he had bank accounts both in his name and jointly with his wife. When he moved to Maryland, he opened a bank account there.

Shelley acquired a Maryland driver's license and bought a car which he registered in Maryland after he moved there. He applied for a country club membership in West Virginia, where his wife and child are now living. Shelley explained that the club would not give his wife a membership in her name, and he applied as an accommodation to her.

Shelley and Laura have never filed a joint Federal income tax return. [9 Ill.App.3d 926] Shelley has filed New York and Maryland state income tax returns. There is some conflict in Shelley's testimony as to whether he has ever filed an Illinois state income tax return.

Laura complains in this appeal that Shelley was not a resident of Illinois for the requisite one year prior to instituting suit for divorce. (Ill.Rev.Stat.1969, ch. 40, par. 3.) The question that faces us is whether the evidence supports the finding that Shelley was in fact a resident of Illinois for the year prior to filing the complaint.

This is not the case of a nonresident entering the state solely to utilize the powers of this court for his purposes. We have here a man who was born and spent part of his life in Illinois. Our review of the decree turns on whether Shelley effectively abandoned his residence in this state. The finding on this issue is not contrary to the manifest weight of the evidence.

There is considerable evidence of Shelley's ties with other states over his lifetime, but there is also sufficient evidence of his intent to remain an Illinois citizen to support the finding f continued Illinois residence. Shelley continued to vote in Illinois while away to school and various jobs. The court considered the evidence of the striking of Shelley's name

Page 403

from the voting lists, his reinstatement as a voter and that he voted from his Chicago address in the December 1970 election. Shelley paid his Federal income taxes in Illinois. Correspondence, including that related to both his voting privilege and his Federal tax obligation, was directed to and received at his Chicago address. One such letter was a jury qustinnaire, sent only to registered voters. Shelley returned it, explaining that it would be difficult to serve on a jury in Illinois because of his out-of-state employment. Shelley maintained a bank account in Illinois and did not move his possessions from his Chicago...

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19 practice notes
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 1–11–0033.
    • United States
    • Illinois Appellate Court
    • January 24, 2011
    ...753] does not equate with abandonment. Hughes v. Illinois Public Aid Comm'n, 2 Ill.2d 374, 380–81, 118 N.E.2d 14 (1954); Davis v. Davis, 9 Ill.App.3d 922, 926, 293 N.E.2d 399 (1973); Hatcher, 117 Ill.App.3d at 239, 72 Ill.Dec. 769, 453 N.E.2d 74. Because a person may have only one residence......
  • Poplar Grove State Bank v. Powers, No. 2-90-1359
    • United States
    • United States Appellate Court of Illinois
    • August 29, 1991
    ...made by a special appearance, for in rem jurisdiction is simply a limited form of jurisdiction over the person. (Davis v. Davis (1973), 9 Ill.App.3d 922, 929, 293 N.E.2d 399.) A defendant does not convert a special appearance into a general appearance merely by arguing that the court lacks ......
  • Green v. Green, Nos. 58227
    • United States
    • United States Appellate Court of Illinois
    • April 15, 1976
    ...is question of fact. (Cohn v. Cohn (1945), 327 Ill.App. 22, 63 N.E.2d 618.) As stated in the recent opinion in Davis v. Davis (1973), 9 Ill.App.3d 922, 926, 293 N.E.2d 399, 403, 'Affirmative acts of abandonment of the Illinois residence must be proved to sustain abandonment. Temporary absen......
  • Farah v. Farah, No. 59651
    • United States
    • United States Appellate Court of Illinois
    • January 6, 1975
    ...of the subject matter as '* * * the power of a particular court to hear the type of case that is then before it.' (Davis v. Davis, 9 Ill.App.3d 922, 929, 293 N.E.2d 399, 405 citing Faris v. Faris, 35 Ill.2d 305, 220 N.E.2d 210.) Under established legal principles, '* * * the jurisdiction of......
  • Request a trial to view additional results
19 cases
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 1–11–0033.
    • United States
    • Illinois Appellate Court
    • January 24, 2011
    ...753] does not equate with abandonment. Hughes v. Illinois Public Aid Comm'n, 2 Ill.2d 374, 380–81, 118 N.E.2d 14 (1954); Davis v. Davis, 9 Ill.App.3d 922, 926, 293 N.E.2d 399 (1973); Hatcher, 117 Ill.App.3d at 239, 72 Ill.Dec. 769, 453 N.E.2d 74. Because a person may have only one residence......
  • Poplar Grove State Bank v. Powers, No. 2-90-1359
    • United States
    • United States Appellate Court of Illinois
    • August 29, 1991
    ...made by a special appearance, for in rem jurisdiction is simply a limited form of jurisdiction over the person. (Davis v. Davis (1973), 9 Ill.App.3d 922, 929, 293 N.E.2d 399.) A defendant does not convert a special appearance into a general appearance merely by arguing that the court lacks ......
  • Green v. Green, Nos. 58227
    • United States
    • United States Appellate Court of Illinois
    • April 15, 1976
    ...is question of fact. (Cohn v. Cohn (1945), 327 Ill.App. 22, 63 N.E.2d 618.) As stated in the recent opinion in Davis v. Davis (1973), 9 Ill.App.3d 922, 926, 293 N.E.2d 399, 403, 'Affirmative acts of abandonment of the Illinois residence must be proved to sustain abandonment. Temporary absen......
  • Farah v. Farah, No. 59651
    • United States
    • United States Appellate Court of Illinois
    • January 6, 1975
    ...of the subject matter as '* * * the power of a particular court to hear the type of case that is then before it.' (Davis v. Davis, 9 Ill.App.3d 922, 929, 293 N.E.2d 399, 405 citing Faris v. Faris, 35 Ill.2d 305, 220 N.E.2d 210.) Under established legal principles, '* * * the jurisdiction of......
  • Request a trial to view additional results

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