Kazubowski v. Kazubowski

• Decision Date: 24 March 1970
• Docket Number: Nos. 42321,42416,42415,s. 42321
• Citation: 45 Ill.2d 405,259 N.E.2d 282
• Parties: Betty Dolar KAZUBOWSKI, Appellee, v. Edward J. KAZUBOWSKI, Appellant.
• Court: Illinois Supreme Court

Page 282

259 N.E.2d 282

45 Ill.2d 405

Betty Dolar KAZUBOWSKI, Appellee, v.Edward J. KAZUBOWSKI, Appellant.

Nos. 42321, 42415, 42416.

Supreme Court of Illinois.

March 24, 1970.

Rehearing Denied June 25, 1970.

Anna A. Phelps, Kewanee, for appellant.

Gregg A. Young, Harper Andrews and Campbell Andrews, Kewanee, for appellee.

BURT, Justice.

On the ground that questions arising under the constitution of the United States and of this State are involved, defendant, Edward J. Kazubowski, appeals directly to this court from certain orders of the circuit court of Henry County entered in a divorce case following an unsuccessful appeal by defendant to the Appellate Court for the Third District.Three separate appeals have been consolidated for hearing.Since the questions presented involve alleged constitutional violations arising from proceedings taken before as well as after the earlier appeal defendant has presented here the entire record in the case.It will be necessary to review it for purposes of this opinion.

After a jury trial resulting in a verdict in favor of the plaintiff, Betty Dolar Kazubowski, the circuit court entered a decree on June 13, 1966, dissolving the bonds of matrimony existing between plaintiff and defendant, cntinuing in force an order for temporary alimony and reserving for future determination the matter of partition, permanent alimony, allowance of attorney fees and such other matters as might lawfully be considered.The decree found that there was no reason for delaying enforcement or appeal of that portion of the decree granting a divorce.On August 31, 1966, a property settlement decree based on a stipulation filed August 15, 1966, was entered after denying defendant's motion to modify the stipulation.On September 6, 1966, defendant filed objections to the decree.On September 8, 1966, plaintiff filed a petition asking that defendant be cited for contempt and be ordered to pay attorney fees.On September 15, 1966, defendant filed an answer to plaintiff's petition, amended objections and motion to vacate the decree of August 31st and notice of appeal from that decree.A hearing was had on the petition, answer and defendant's objections on September 15th.By an order entered on the same date defendant's amended objections were overruled, defendant was found to be in wilful contempt for failure to pay $4900 on September 1, 1966, as agreed and $500 attorney fees and ordered committed to the county jail for a period of six months unless and until the required $5400 was paid.The order provided that the clerk issue a Mittimus directing the sheriff to take defendant into custody and imprison him as ordered until the provisions of the order were satisfied.On September 19, 1966, plaintiff filed a petition for an allowance of alimony and attorney fees during the period of appeal.A hearing was held on September 23 after defendant had filed a special and limited appearance.The court ordered that defendant pay $70 per week alimony and $1700 attorney fees.On September 28, 1966, plaintiff filed a petition for rule to show cause why the provisions of the order of September 23 had not been complied with.Defendant replied and asked that the September 23 order be included in the appeal.This was allowed but the court held that the divorce decree of June 13, 1966, was not part of the appeal because no appeal had been taken within the statutory time allowed.

On appeal by the defendantthe appellate court held: (1) that, since there had been a specific finding that no reason existed for delay in enforcement or appeal of the divorce decree of June 13the pursuant to the applicable provisions of the Civil Practice Act, the decree was final and appealable and in view of the fact that no appeal had been taken within the time allowed it could not be reviewed, (2) that the property settlement decree of August 31st and the stipulation upon which it was based were valid and binding upon the parties, (3) that the contempt order of September 15th was valid and enforceable and (4) that the order of September 23rd was within sound discretion of the trial court and valid.Accordingly, the appellate court dismissed the appeal with respect to the divorce decree and affirmed the decree of August 31, 1966, and the orders of September 15, 1966, and September 23, 1966.(Kazubowski v. Kazubowski, 93 Ill.App.2d 126, 136, 235 N.E.2d 664.)Defendant, without petitioning for rehearing in the appellate court, filed a petition for appeal to this court as a matter of right.On September 23, 1968, the petition was denied.(39 Ill.2d 625.)Review by the U.S. Supreme Court was sought by filing a petition for writ of Certiorari.That court denied the petition on March 3, 1969.(393 U.S. 1117, 89 S.Ct. 993, 22 L.Ed.2d 122.)The mandate of the appellate court was filed in the trial court on March 12, 1969.

On March 7, 1969, before the mandate was filed defendant filed a motion asking that the circuit court amend its decree of August 31, 1966, by crediting the sum of $70 per week equitable alimony which had accrued pending appeal to the gross sum of $20,500 provided for in the decree.On March 19, 1969, the court entered its order sustaining plaintiff's motion to strikedefendant's motion of March 7th.Nevertheless on the same date (March 19th), defendant filed a motion that the court enter its order for amounts found to be due under the decree and orders in the cause to date and a determination of issues allegedly not decided by the appellate court.In this argumentative document defendant took the position that since the divorce decree had been final, as decided by the appellate court, plaintiff was not the wife of defendant on September 23, 1966 and therefore the court had no authority to order payments of alimony pending appeal on that date; that plaintiff was 'estopped' from receiving such payments; that plaintiff was also 'estopped' by the provisions of the decree of August 31st which provided that plaintiff was barred from additional rights to alimony and that each party should pay his own attorney fees; that the stipulation for property settlement was unauthorized and the resulting decree of August 31, 1966 was invalid because it was obtained without notice to defendant and without an opportunity to be heard.

Plaintiff's supplemental petition for attorney fees under the decree of September 23, 1966, was filed on March 19, 1969, the same date on which the above motion was presented on behalf of defendant.The petition alleged that defendant had not paid any part of the alimony and attorney fees as ordered on September 23, 1966, and sought an allowance of attorney fees of $8,463.25 in addition to the $1700 ordered paid in 1966 as well as $270.99 for expenses of appeals and $175 interest on the former allowance.The court set the petition for hearing on March 25, 1969.Defendant responded by filing a special and limited appearance questioning the jurisdiction of the court and a motion for continuance until such time as the court had determined the issues raised by defendant's motion of March 19th.Defendant served notice that he would call up his motion for continuance on March 25th.

Meanwhile, on March 24th the clerk of the court issued a contempt Mittimus pursuant to the order of September 15, 1966, requiring that defendant pay $4900 alimony and $500 attorney fees which had been affirmed on appeal.Defendant was arrested and confined in the county jail at about noon on that date.He was released at about 4:00 P.M. the next day after payment of $14,000.An order of payment and discharge entered by the court on March 25th the time of defendant's release finds that the amount paid is in full of all sums due to date under the property settlement decree of August 31, 1966, and the order of September 15, 1966, and that defendant is purged of the contempt citation of September 15, 1966.On April 3, 1969, the court denied defendant's motion of March 19th.The order recites a hearing after notice to the respective parties and that the motion had been taken under advisement.

On April 15th defendant filed a motion for refund of the $14,000 paid on March 25th, alleging that the sum had been obtained as the result of illegal and unwarranted incarceration; that the Mittimus was illegal and based upon a 'void order'; that the proceedings taken constituted imprisonment for debt and deprived defendant of life, liberty and property in violation of his rights under the State and Federal constitutions.The motion further alleged that defendant was not permitted to have a hearing or to testify or produce evidence on March 25th.The record shows that notice of the filing of this motion was given but there is nothing which shows that defendant ever sought a hearing on it after it was filed.On April 18, 1969, a notice of appeal from the contempt Mittimus of March 24th and the order of payment and discharge of March 25th was filed.This appeal was designated as case number 42321.

On April 22, 1969plaintiff filed a petition for citation requiring defendant to appear and show cause why he should not be adjudged in contempt for failure to pay the equitable alimony of $70 per week required by the order of September 23, 1966, which was allegedly in arrears for 126 weeks and totalled $8,820.On the same date a notice was served that hearing on this petition had been set for April 28th and that on the same date the court would decide the matter of allowance of attorney fees under plaintiff's petition of March 19, 1969, which had been heard and taken under advisement on April 15, 1969.On April 24th defendant entered a special and limited appearance to the petition of April 22nd alleging that the order of September 23, 1966 was void because of the court's lack of jurisdiction of the subject matter and the person of the defendant; that plaintiff was not the wife of defendant when the order was entered and that the order was contrary to...