Marriage of Dowd, In re, 2-90-0903

• Court: United States Appellate Court of Illinois
• Writing for the Court: UNVERZAGT
• Citation: 214 Ill.App.3d 156,573 N.E.2d 312
• Parties: , 157 Ill.Dec. 894 In re MARRIAGE OF Sandra O. DOWD, Petitioner-Appellee, and Thomas Dowd, Respondent-Appellant. Second District
• Docket Number: No. 2-90-0903,2-90-0903
• Decision Date: 31 May 1991

Page 312

573 N.E.2d 312 214 Ill.App.3d 156, 157 Ill.Dec. 894 In re MARRIAGE OF Sandra O. DOWD, Petitioner-Appellee,
and
Thomas Dowd, Respondent-Appellant. No. 2-90-0903. Appellate Court of Illinois, Second District. May 31, 1991.

Page 313

[157 Ill.Dec. 895] Robert A. Chapski, Randy K. Johnson, Law Office of Robert A. Chapski, Ltd., Elgin, for Thomas Dowd.

Harry Schaffner, Schaffner & Van Der Snick, P.C., Geneva, for Sandra O. Dowd.

Justice UNVERZAGT delivered the opinion of the court:

Respondent, Thomas Dowd, appeals from a judgment of dissolution of marriage entered by the circuit court of Kane County based on irreconcilable differences. Respondent maintains that the proof presented at trial did not establish that the parties lived "separate and apart" for a period in excess of two years or that the marriage was [214 Ill.App.3d 157] irretrievably broken down, as required by section 401(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1987, ch. 40, par. 401(a)(2)).

Petitioner has filed a motion to dismiss the appeal on the ground that the appeal is frivolous because the issue presented therein is moot. Respondent has filed objections to petitioner's motion. This court ordered the motion and the objections thereto be taken with the case, and at the outset we direct our consideration to this preliminary question.

Petitioner asserts in her motion and accompanying affidavits that a woman with whom respondent is romantically involved and the woman's two children have been living with respondent since June 1990. Petitioner further states that the two children refer to respondent as "Dad" and are using his surname, that the woman represents that she is respondent's wife, and that respondent and the woman are living on a resident, continuing, conjugal basis. By these averments, petitioner is apparently attempting to establish that respondent's conjugal relationship with this woman indicates that he has accepted the benefits of the dissolution decree and is now estopped from subsequently challenging its validity.

In his objections, respondent does not address or deny petitioner's assertions, nor has he filed any counteraffidavits. While, generally, well-alleged facts within an affidavit must be taken as true when not contradicted by counteraffidavit, that rule is typically applied, by virtue of Supreme Court Rule 191(a) (134 Ill.2d R. 191(a)), only to affidavits in proceedings under sections 2-1005, 2-619, and 2-301(b) of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, pars. 2-1005, 2-619, 2-301) and does not apply to affidavits filed in conjunction with all other types of civil proceedings. (Marquette National Bank v. B.J. Dodge Fiat, Inc. (1985), 131 Ill.App.3d 356, 362, 86 Ill.Dec. 678, 475 N.E.2d 1057.) As there is no issue, here, as to summary judgment, involuntary dismissal,

Page 314

[157 Ill.Dec. 896] or jurisdiction over the person, the requirements of Rule 191(a) need not be invoked. Nevertheless, an examination of the affidavits accompanying petitioner's motion show that the specific facts set forth therein...