Pope v. Pope

• Court: Appellate Court of Illinois
• Writing for the Court: DEMPSEY; SCHWARTZ
• Citation: Pope v. Pope, 299 N.E.2d 161, 12 Ill.App.3d 800 (Ill. App. 1973)
• Decision Date: 07 June 1973
• Docket Number: No. 55712,55712
• Parties: Linda F. POPE, Plaintiff-Appellant, v. Henry D. POPE, Defendant-Appellee.

Page 161

299 N.E.2d 161

12 Ill.App.3d 800

Linda F. POPE, Plaintiff-Appellant, v. Henry D. POPE, Defendant-Appellee.

No. 55712.

Appellate Court of Illinois, First District, Third Division.

June 7, 1973.

Muller Davis, Davis, Jones & Baer, Chicago, for plaintiff-appellant.

Jacob N. Gross, Chicago, for defendant-appellee.

DEMPSEY, Presiding Justice:

This is an appeal by the plaintiff, Linda Pope, from a decree of divorce entered upon the motion of the defendant, Henry Pope.

The Popes were married in March 1965 and lived together until March 1970. Two children were born of the marriage. Mrs. Pope sued for divorce and alleged that her husband was guilty of extreme and repeated cruelty. The defendant denied the charge. An uncontested hearing was held pursuant to stipulation on May 1, 1970, at which the plaintiff and her witnesses testified. At the conclusion of the testimony the court addressed the attorneys and stated: 'All right. You gentlemen draw your decree and each of you approve it and come back before me.' The decree, however, was not presented because on May 16th, at the plaintiff's initiative, the parties were reconciled.

The Popes then vacationed in Mexico, returning to Cook County in early June. They had decided to move to California, and in June they rented a house in San Diego into which they moved with their children. During the reconciliation the plaintiff became pregnant. After the parties had been living in San Diego for a short time, marital difficulties again arose. The plaintiff sought psychiatric care and her pregnancy was terminated by an abortion. Their relations continued to deteriorate and on August 2nd the defendant left the plaintiff. He paid the rent for the month and gave her a check for $500. He then went to Europe for three weeks.

On October 26, 1970, the defendant filed a motion for the entry of the divorce decree. His motion alleged that the plaintiff had fraudulently induced him to reconcile with her for the purpose of preventing the entry of the decree in May 1970. The plaintiff moved to dismiss the motion, filed an answer which denied the defendant's allegations, and sought permission to amend her pleadings and introduce evidence regarding the actions of the parties subsequent to May 1, 1970. The only testimony presented at the hearing was that of the plaintiff. She did not testify in person but it was stipulated that if she were called to testify she would recount the events that had transpired since May 1st, the last time the parties were in court. This testimony, as related by her counsel, was to the effect that the reconciliation was sincere and genuine and that the subsequent separation was the fault of the defendant. The court granted the defendant's motion and on November 24, 1970, entered the decree which had been submitted by his attorney. The court approved, as part of the decree, a property settlement which had been agreed to by the parties on March 9, 1970, in contemplation of their divorce.

The settlement provided for alimony of $150 per month, $450 per month child support and the payment to $2,500 to the plaintiff's attorney. The defendant agreed to establish an insurance trust for the benefit of the plaintiff and the children; he promised to pay to the plaintiff one-half of the equity in their home in Northbrook, Illinois, and to deliver to her the personal property in the residence. In June 1970 the defendant paid the plaintiff's attorney $2000. The cost of moving the personal property from Northbrook to San Diego was paid in July. The insurance trust was established and the plaintiff's share of the equity of the Northbrook property amounting to $15,324.10 was segregated. After the November decree, the plaintiff accepted $600 monthly from the defendant.

The first problem confronting us is the defendant's motion to dismiss the appeal on the ground that the plaintiff's acceptance of decretal benefits precludes her from attacking the decree.

Generally, a litigant who has enjoyed the benefits of a decree cannot attack it, especially if the reversal of the decree would place the opposing party at a distinct disadvantage. Hancox v. Hancox (1964), 54 Ill.App.2d 476, 203 N.E.2d 613. We do not think the rule applies in the present case. When the defendant paid the fee to the plaintiff's attorney, the Popes were reconciled and there was no intention to enter the decree. The situation is markedly different from that in Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614, where the wife herself accepted the fee for her attorney after the decree was entered. Indeed, the acceptance by the plaintiff's attorney of a fee lower than that originally agreed upon suggests that he considered himself relieved of the duty of preparing and entering a decree. Also, the payment for the transportation of the household goods of the parties from their home in Northbrook to San Diego was made while they were still living together in San Diego. The fact that the plaintiff and her children continued to use these items after the date of the decree does not bar her right to appeal nor does her acceptance of the alimony and support payments. Lemon v. Lemon (1958), 14 Ill.2d 15, 150 N.E.2d 608. The plaintiff produced evidence of the expense necessarily incurred in maintaining the standard of living which she and the children were accustomed to after moving to San Diego. There was no evidence that she was a woman of means or that she had independent sources of income. Retention of money essential for her and her children's existence from the person whose responsibility it was to support them, does not bar her appeal. In any case we fail to perceive how the plaintiff's actions might place the defendant in a disadvantageous position in the event of a reversal. She refused to accept her share of the real estate and did not exercise any dominion over the insurance trust. The defendant's motion to dismiss the appeal is denied.

The...