Marriage of Passiales, In re

• Decision Date: 13 May 1986
• Docket Number: No. 85-1294,85-1294
• Citation: 494 N.E.2d 541,144 Ill.App.3d 629,98 Ill.Dec. 419
• Parties: , 98 Ill.Dec. 419 In re the MARRIAGE OF James J. PASSIALES, Petitioner-Appellee, and Carolyn A. Passiales, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 541

494 N.E.2d 541

144 Ill.App.3d 629, 98 Ill.Dec. 419

In re the MARRIAGE OF James J. PASSIALES, Petitioner-Appellee and Carolyn A. Passiales, Respondent-Appellant.

No. 85-1294.

Appellate Court of Illinois First District, Second Division.

May 13, 1986.

Rehearing Denied June 24, 1986.

Cantwell & Fallace, Chicago (Peter A. Cantwell, L. Yager Cantwell, Stephen F. Boulton, Paul H. Scheuerlein, of counsel) for respondent-appellant.

Terry Sullivan, Ltd., Rolling Meadows, (Terry Sullivan, Nancy J. Nicol, of counsel), for petitioner-appellee.

Justice STAMOS delivered the opinion of the court:

Carolyn Passiales, the respondent in a divorce action, petitioned under section 72 of the Illinois Civil Practice Act, (now Ill.Rev.Stat.1983, ch. 110, par. 2-1401), to have her divorce decree set aside for lack of subject matter jurisdiction. In her petition, Carolyn also asked the court to find that the default judgment of divorce entered against her was void because the court lacked jurisdiction over her person. Finally, she requested leave to file an answer and a counter-petition for divorce against her husband.

The trial judge vacated Carolyn's divorce decree and dismissed the underlying cause of action for lack of subject matter jurisdiction. The judge made no finding as to whether the court granting the divorce had obtained personal jurisdiction over Carolyn, and he denied Carolyn leave to file a counter-petition for divorce. The judge also denied Carolyn's request that her husband, James, be sanctioned for untruthful statements and non-compliance with discovery orders, but he did award Carolyn $7500 in attorney fees.

Carolyn now appeals from the trial court's orders, claiming, among other things, that her husband's petition for divorce should not have been dismissed when the divorce decree was vacated, that James should have been sanctioned for perjury, and that the court's award of attorney fees was inadequate. Carolyn's husband, James, has cross-appealed. He objects to the court's order vacating his divorce and awarding attorney fees to Carolyn.

James and Carolyn Passiales were married on August 24, 1969, at the home of Carolyn's parents in Esterville, Iowa. At the time of the marriage, Carolyn had been a life-long resident of Iowa, and James was a student there. James and Carolyn lived in Des Moines, Iowa from 1969 until June 1971. In June 1971, the couple moved in with James' parents in Melrose Park, Illinois. They stayed in Melrose Park until August 1971, when James joined the air force. In August 1971, James and Carolyn moved to Biloxi, Mississippi. They lived in Biloxi until the early part of 1972, when James was transferred to Dover, Delaware. The couple remained in Dover until February 1973, when James was released from the air force and they returned to the home of James' parents in Melrose Park, Illinois.

Carolyn and James stayed with James' parents in Melrose Park from February until August 1973. During this time, the couple searched for a house or apartment of their own. They placed a down payment on a rental unit in Lisle, Illinois, but before they could move into their apartment, James secured a position as an air traffic controller in Duluth, Minnesota.

In August 1973, the couple moved to Duluth. Carolyn left her husband in October 1974, and moved to her parents' home in Esterville, Iowa. James remained in Duluth until February 1975, when he was transferred to O'Hare Airport in Chicago. When James arrived in Illinois, he lived with his parents and stored his furniture in Duluth. In September 1976, James purchased a house in Bensenville, Illinois, and now lives in Wheaton, Illinois. Carolyn lives in California.

When Carolyn left James, she took some small household objects and a Ford Pinto automobile. According to Carolyn, James agreed to store the couple's china, silver, and crystal and two of Carolyn's rings until Carolyn was ready to take these items. On several occasions since 1974, Carolyn has asked James to surrender this property, but he has refused.

In April 1975, James and Carolyn agreed that James would sue for divorce in Illinois. James filed a petition for divorce in Cook County, Illinois on May 25, 1975. On May 29, 1975, Carolyn was served with a summons by the local sheriff at her parents' home in Esterville, Iowa. James assured Carolyn that her appearance in court would be unnecessary. Carolyn was unrepresented by counsel and did not appear in the divorce action. On September 29, 1975, a default hearing was held, and on October 10, 1975, the circuit court entered a decree of divorce.

Carolyn was disturbed that James would not surrender the wedding gifts and rings that he had promised to keep for her. Consequently, on October 7, 1977, Carolyn filed a section 72 petition. (Ill.Rev.Stat.1973, ch. 110, par. 72, now Ill.Rev.Stat.1983, ch. 110, par. 2-1401.) In her petition, she sought to vacate the 1975 divorce decree.

After Carolyn filed her section 72 petition, the parties commenced a stormy process of discovery. Each party accused the other of recalcitrance and purposefully obstructive conduct. The case was continued on numerous occasions, most of the time by agreement of the parties. Finally, on February 22, 1982, Judge Eiger, who had entered the original divorce decree, heard the arguments of both sides and declined to sanction either of the parties for failure to cooperate in discovery. He also denied Carolyn's petition for preliminary attorney fees, and he set the case for trial.

On August 31, 1982, Judge Eiger entered an order making the following findings with regard to Carolyn's section 72 petition: (1) James had not been a resident of Illinois for one year prior to May 25, 1975, when he filed for divorce; (2) the court lacked subject matter jurisdiction to enter a judgment for divorce; (3) the divorce decree of October 10, 1975, was vacated and the cause dismissed. The foregoing order, although it was entered on August 31, 1982, was made nunc pro tunc to July 20, 1982. The order vacating the divorce was first entered on July 20, but it recited only that James was not an Illinois resident at the time he filed for divorce. On August 31, 1982, the judge changed the order to state that James was not an Illinois resident for one year prior to filing for divorce.

After Carolyn's section 72 petition was granted, both parties filed petitions for attorney fees. Carolyn also petitioned for a change of venue, claiming that she deserved a substitution of judges as a matter of right and that Judge Eiger was prejudiced against her. On April 18, 1983, Judge Eiger denied Carolyn's amended petition for change of venue. After a hearing on the parties' petitions for attorney fees, the judge entered an order on April 9, 1985, denying James' petition for fees and awarding Carolyn $7500 in fees. The judge also noted in his order that the judgment against James would be stayed for 120 days, after which time, an interest rate of 7% would be levied on any unpaid balance.

Carolyn now appeals from the following on the trial court's orders: (1) Order of 2-22-82, in which Judge Eiger denied Carolyn preliminary attorney fees and declined to sanction James for non-compliance with discovery orders. (2) Order of 8-31-82, in which the judge dismissed James' 1975 suit for divorce. (3) Order of 2-2-83, in which the judge denied Carolyn's petition for a change of venue. (4) Order of 4-18-83 in which the judge denied Carolyn's amended petition for a change in venue. (5) Order of 4-9-85, in which Judge Eiger denied Carolyn's request for costs and attorney fees pursuant to Ill.Rev.Stat.1983, ch. 110, par. 2-611 and granted Carolyn only $7500 in fees pursuant to Ill.Rev.Stat.1983, ch. 40, § 508. Carolyn also objects to the part of this order in which the judge stayed judgment and levied 7% interest.

James has filed a cross-appeal, in which he objects to the following orders: (1) Order of 8-31-82, in which the judge vacated the divorce decree. (2) Order of 4-9-85, in which the judge denied James attorney fees but awarded them to Carolyn.

The first issue presented by this appeal is one raised by James. He contends that Carolyn should be estopped from challenging the validity of the 1975 divorce decree because she remarried in reliance on it. James' argument has some merit, but it does not appear that Carolyn can be estopped from challenging the divorce.

A person who remarries in reliance on the validity of a prior divorce decree has accepted the benefit of that decree and is estopped from challenging its validity. (In re Marriage of Paulius (1985), 131 Ill.App.3d 343, 345, 86 Ill.Dec. 627, 475 N.E.2d 1006.) This estoppel principle applies even when the divorce decree is attacked as being void for lack of subject matter jurisdiction. See, Forest v. Forest (1973), 9 Ill.App.3d 111, 114-15, 291 N.E.2d 880.

In the present case, Carolyn remarried on July 26, 1982. Her remarriage took place more than five years after she had filed a petition to vacate her divorce decree. In fact, she remarried five days after the court's initial order declaring her divorce null and void. (The court first vacated the divorce decree in an order dated July 20, 1982. This order contained an error, however, so the court issued a corrected order on August 31, 1982. The second order was nunc pro tunc to July 20, 1982.) Although Carolyn's conduct is puzzling, it is not covered by the principles of equitable estoppel. When Carolyn married her second husband on July 26, 1982, her divorce had been invalidated, and she was still married to James. Since Carolyn remarried after her divorce from James was vacated, she did not rely on the validity of her divorce decree. Moreover, she could not be estopped from challenging her divorce decree at a time when the decree had already been vacated.

The second issue presented on appeal is whether the court that entered the 1975 divorce had subject matter jurisdiction. James...