Meyer v. Meyer

• Decision Date: 17 February 1948
• Docket Number: Gen. No. 44004.
• Citation: 333 Ill.App. 450,77 N.E.2d 556
• Parties: MEYER v. MEYER (two cases).
• Court: United States Appellate Court of Illinois

333 Ill.App. 450

77 N.E.2d 556

MEYER

v.MEYER (two cases).

Gen. No. 44004.

Appellate Court of Illinois, First District, Second Division.

Feb. 17, 1948.

Appeal from Circuit Court, Cook County; Elmer J. Schnackenberg, Judge.

Suit for divorce by Hester S. Meyer against Arthur Meyer, who filed a counterclaim for divorce. From an order dismissing plaintiff's petition to strike a decree for defendant on the counterclaim for want of equity, plaintiff appeals.

Reversed and remanded with directions.Teed & Johnson, of Chicago (Hugh E. Johnson, of Chicago, of counsel), for appellant.

Cantwell & Cantwell and Brown, Fox & Blumberg, all of Chicago (Charles Le Roy Brown, Robert E. Cantwell, Jr., L. Yager Cantwell, and Joseph W. Baer, all of Chicago, of counsel), for appellee.

FRIEND, Presiding Justice.

December 28, 1942, the plaintiff, Hester S. Meyer, filed a complaint in the Circuit Court of Cook County against her husband, Arthur Meyer, for divorce on the ground of desertion, seeking the care and custody of their two minor children. Three days later defendant, without service of process, filed a formal answer, admitting substantially all the allegations of the complaint, except the charge that he had deserted her and the assertion that plaintiff had at all times conducted herself in a manner becoming a good, true and affectionate wife. At the same time he also filed a counterclaim, charging his wife with willful desertion on November 1, 1941, and asked that a decree for divorce be entered in his favor and that he be awarded the care and custody of the minor children. Plaintiff's answer to the counterclaim denied his allegations with respect to the desertion and asked that the counterclaim be dismissed for want of equity. A stipulation was then entered into by counsel for the respective parties that the matter be set for immediate hearing and the cause proceeded to trial on January 11, 1943, some fourteen days after the complaint was filed. Mrs. Meyer was represented by counsel but was not present at the hearing, being then confined as a patient at the North Shore Health Resort in Winnetka, Cook County, Illinois. Defendant testified that his wife had deserted him on November 1, 1941, without cause, and two other witnesses stated in corroboration of his testimony that the parties had been living separate and apart since that date and that in their opinion Mr. Meyer was a fit and proper person to have the care and custody of the children. At the conclusion of the hearing Judge Lynch, who heard the cause, indicated that a decree would be entered on defendant's counterclaim awarding custody of the children to defendant, and after the testimony was written up and submitted to him a decree for divorce was entered on January 18, 1943.

Thereafter, in July 1944, plaintiff filed a petition in the Circuit Court collaterally attacking the decree on the ground that the court lacked jurisdiction of the subject matter, thus rendering the decree void, and asking that it be expunged of record. Defendant moved to dismiss the petition for the following reasons: ‘1. Plaintiff was competently represented by counsel fully advised of the facts and circumstances in connection therewith. 2. The decree for divorce herein was a consent decree. 3.Plaintiffhas accepted the benefits of said decree.’ The court denied the motion to strike and ordered defendant to answer. He filed an answer denying the allegations touching upon the question of jurisdiction and averred that plaintiff was a resident of Cook County when the complaint was filed by her counsel. Hearing on the petition and answer by Judge Feinberg resulted in the allowance of defendant's motion to dismiss the petition for want of equity, from which Mrs. Meyer appealed. We reversed that order and remanded the cause for a new trial with specific directions. The essential facts pertaining to the litigation and the questions involved are amply set forth in our former opinion which is fully reported in Meyer v. Meyer, 328 Ill.App. 408, 66 N.E.2d 457, 459. We there stated explicitly that ‘The only question presented is whether plaintiff made out a prima facie case on the proposition that the decree of divorce was null and void for want of jurisdiction, her position being that neither of the parties was a resident of Cook County at the time the divorce proceeding was instituted, as required by statute (ILL.Rev.Stat. 1941, Divorce, ch. 40, par. 6),’ but because the chancellor had not decided the question of residence but had directed the inquiry primarily to Mrs. Meyer's mental condition and her ability to understand the nature of the proceeding, and because we thought that ‘an orderly hearing of plaintiff's petition challenging the jurisdiction of the court, and defendant's answer thereto, was never had,’ we reversed the order from which plaintiff had appealed and remanded the cause for the purpose of affording the parties ‘an opportunity to adduce the competent evidence available and to have the controversy [the question of jurisdiction] determined upon the issues made up by the pleadings.’ Questions of law urged upon the first appeal were all fully discussed and determined, and in our opinion on rehearing we expressed ourselves as adhering ‘to our conception of the law relating to the question of jurisdiction and plaintiff's right to challenge it,’ as set forth in our original opinion, before rehearing.

On the first appeal defendant presented only two points in support of the order of dismissal. He first argued that ‘the divorce decree herein is not null and void because the court had jurisdiction of the parties and the subject matter.’ He posed the question presented to the court as follows: ‘Where a wife domiciled in Kane County, Illinois, comes to a Cook County Sanitarium to stay for an indefinite period of time to cure herself of alcoholism, will her presence within Cook County for two months prior to filing her complaint for divorce be sufficient to make her a resident within the meaning of Chapter 40 Paragraph 6 of the Illinois Revised Statutes?’ We discussed plaintiff's citations bearing upon that question and Way v. Way, 64 Ill. 406, the only case relied upon by defendant, and concluded that ‘it would be idle in this proceeding to argue that Mrs. Meyer had any intention of establishing a residence in Cook County within the contemplation of the statute, any more than it could be urged that she intended to become a resident of the State of Wisconsin while confined in the sanitarium at Wauwatosa for nine or ten months prior to her admission to the North Shore Health Resort.’

The only other point presented and argued by defendant on the first appeal was as follows: ‘assuming that the divorce decree herein is null and void, equity will not permit the plaintiff to raise the question of jurisdiction’ because ‘A. plaintiff has accepted benefits under the divorce decree herein,’ and ‘B. plaintiff by filing suit and by waiting a year and a half before attacking the divorce decree has authorized and ratified said decree.’ We discussed both of these propositions fully and decided them adversely to defendant.

Pursuant to remandment the case was assigned to Judge Schnackenberg. It appears that after the entry of the original decree defendant was married to Constance Arts on May 1, 1943, and that as a result of that marriage a child, Katina, was born June 9, 1945. Constance Arts Meyer and her daughter, Katina, sought to file their intervening petition in the second hearing, but the chancellor denied their motion and the cause proceeded upon the original petition and defendant's answer thereto. More than 700 pages of evidence were adduced upon this hearing, and presumably every item of evidence that could have any possible bearing upon the residence of plaintiff in Cook County prior to the filing of her original complaint and the resulting jurisdictional question involved was brought into the case. Much of the evidence was objected to by plaintiff and had little if any bearing upon the sole issue for which the cause had been remanded. At the conclusion of this hearing the chancellor announced that ‘On mandate of the Appellate Court, there has been a complete hearing on the petition of the plaintiff, Hester Sheldon Meyer, and the answer of the defendant, Arthur Meyer, thereto.’ The contention that ‘plaintiff has accepted benefits under the divorce decree’ was abandoned on the second hearing and is not urged on this appeal. The chancellor, having in mind defendant's remaining contention as to estoppel, addressed the following interrogatory to Mr. Cantwell, defendant's attorney: ‘Have you any case where the question of residence as being jurisdictional was raised by a petition and as part of that petition it is urged that estoppel operates against the petition there or the attack is on jurisdictional grounds and non- residence in the County, as distinguished from the case where the attack is merely on the ground of fraud in procuring a decree?’ to which Mr. Cantwell replied: ‘The Whittaker case [Whittaker v. Whittaker, 151 Ill. 266, 37 N.E. 1017], Judge, in Illinois.’ The chancellor stated that he was familiar with the Whittaker case, and pointed out that ‘In that case they found the party did live in the state, in the County,’ and then asked Mr. Cantwell the further question: ‘In other words, can you find a case where the jurisdiction of the court is attacked because of the nonresidence of the plaintiff in the county when the suit was filed and a petition to vacate on that ground was denied because of laches or equitable estoppel?’ to which Mr. Cantwell replied: ‘I can't find one in Illinois, Judge.’ The chancellor then said: ‘That's this case,’ thereby implicitly holding against defendant's contention that laches or equitable estoppel could be urged in a case where the court lacked jurisdiction of the subject matter because of plaintiff's nonresidence in the county in which the...