Hancox v. Hancox

• Decision Date: 28 December 1964
• Docket Number: Gen. No. 49398
• Citation: 54 Ill.App.2d 476,203 N.E.2d 613
• Parties: Charles HANCOX, Plaintiff,-Appellee, Counterdefendant, Cross-Appellant, v. Christine HANCOX, Defendant-Appellant, Counterclaimant, Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 613

203 N.E.2d 613

54 Ill.App.2d 476

Charles HANCOX, Plaintiff,-Appellee, Counterdefendant, Cross-Appellant, v. Christine HANCOX, Defendant-Appellant, Counterclaimant Cross-Appellee.

Gen. No. 49398.

Appellate Court of Illinois, First District, First Division.

Dec. 28, 1964.

Thaddeus B. Rowe, Chicago, for appellant.

Samuel S. Cohon, Chicago, for appellee.

MURPHY, Presiding Justice.

Plaintiff, Charles Hancox, commenced the instant action by filing his complaint for the annulment of his marriage to Christine Hancox. Defendant counterclaimed and was awarded a decree of divorce, alimony, attorney's fees, and one-half of their joint savings account. Defendant, Christine Hancox, appeals, contending that the alimony award is insufficient, and that the court failed and refused to adjust all property rights. While the cause was pending in this court, plaintiff, Charles Hancox, filed a motion in the nature of a plea of release of errors, and the motion was taken with the case.

The parties married on April 25, 1944, divorced on June 6, 1949, and remarried on October 20, 1951. In November 1961, Charles filed his 3-count annulment complaint, and also sought partition of their jointly held real estate, and an accounting and adjustment of property rights. Defendant, Christine, answered and counterclaimed for divorce and 'permanent alimony or in lieu thereof the one half interest in the property at 9304 South Union Avenue, Chicago, Illinois, standing in the name of the plaintiff, as her sole and separate property.'

After a trial on the merits of Count 1 of the annulment complaint, Count 1 was dismissed for want of equity. The record shows no disposition of Count 2 for partition or Count 3 for the adjustment of property rights. After a trial on the merits of defendant's counterclaim, which included two days of testimony, a decree of divorce was awarded to Christine Hancox, the defendant and counter-plaintiff.

The decree for divorce, entered on July 1, 1963, found that the parties had been lawfully married to each other on October 20, 1951; that no children had been born to, or adopted by, the parties; that the counter- defendant and plaintiff, Charles Hancox, had been guilty of extreme and repeated cruelty; that Charles Hancox earned $90 a week, and christine, working three or four days, earned from $30 to $40 a week. Christine was awarded 'the sum of $8.00 per week as and for permanent alimony until the further Order of this Court,' and Charles was ordered to pay Christine's attorney the sum of $800 for services performed on her behalf in the prosecution of her counterclaim.

The decree further (1) ordered that their $4,301.36 joint savings account be divided equally between the parties; (2) denied the motion of Christine that she be awarded the one-half interest of Charles in 9304 South Union Avenue, and further stated that no order would be entered regarding this property or a Chevrolet automobile; and (3) awarded to Christine the furniture and furnishings of their home as her sole and separate property. The court further found 'that there is no just reason to delay enforcement or appeal.'

The record further contains an order entered by the trial court on July 3, 1963, which modified the decree by eliminating that part of the decree which disposed of the household furnishings to Christine, and ordered that 'no determination of such furniture be made by the said decree.' The order recites that the matter came on to be heard 'upon motion of Charles Hancox, plaintiff and counter-defendant, and it appearing to the court that due notice has been had upon all parties in interest * * *.'

We consider first the motion of the counter-defendant, Charles Hancox, to dissmiss the appeal, which was taken with this case. This motion is based on the rule, 'a litigant cannot attack a decree whose benefits he has previously enjoyed, especially if to do so would place the opposing party at a distinct disadvantage upon reversal of the decision.' (Lemon v. Lemon, 14 Ill.2d 15, 17, 150 N.E.2d 608, 610 (1958).) It is argued that Christine 'took one-half of the funds in the joint account at the First Federal Savings and Loan Association and accepted it knowing that it was a partial performance of the terms and provisions of the said decree. Also the attorney for the counterplaintiff accepted $800.00 as provided in the decree as and for his attorney's fees for services rendered to the counter-plaintiff, * * *.'

We do not believe this rule should be applied here. The record shows that the joint savings account represented their joint earnings, and the court directed that it be divided...