La Roche v. La Roche

• Decision Date: 22 September 1975
• Docket Number: No. 74--163,74--163
• Citation: 335 N.E.2d 518,32 Ill.App.3d 475
• Parties: Palmer LA POCHE, Plaintiff, v. Vernetta LA ROCHE, Defendant-Appellant. Vernetta La Roche PACCAMONTI, Plaintiff-Appellant, v. Palmer LA ROCHE and the Equitable Life Assurance Society of the United States, a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 518

335 N.E.2d 518

32 Ill.App.3d 475

Palmer LA POCHE, Plaintiff, v. Vernetta LA ROCHE, Defendant-Appellant.

Vernetta La Roche PACCAMONTI, Plaintiff-Appellant, v. Palmer LA ROCHE and the Equitable Life Assurance Society of

the United States, a corporation, Defendants-Appellees.

No. 74--163.

Appellate Court of Illinois, Third District.

Sept. 22, 1975.

B. R. Tongren, Peotone, Counsel, Clinton & Tongren, Peotone, for appellant.

Leonard Sacks, Kankakee, Counsel, Claude M. Granger, Kankakee, for appellees.

STENGEL, Justice:

Plaintiff Palmer La Roche obtained a decree of divorce in the Circuit Court of Kankakee County against his wife, appellant Vernetta La Roche, a/k/a Vernetta Paccamounti, on grounds of adultery. A separate action filed by appellant against Palmer La Roche sought partition of residence property owned by the parties as joint tenants. Both suits were consolidated for trial, and separate decrees were entered in each. The partition decree was subsequently vacated for failure to give notice to Equitable Life Assurance Company, mortgagee. On appeal, appellant seeks reversal of the divorce decree or, alternatively, modification of certain property settlement provisions, and also contends that, in the partition proceeding, various posttrial orders were erroneously entered.

Our first consideration is the validity of the divorce decree. Appellant contends that, at the time defendant claims she committed adultery with Leo Paccamonti, she was in fact married to Mr. Paccamonti and living with him as his wife, and that the trial court erred in refusing to give full faith and credit to her Nevada divorce from Mr. La Roche and in further refusing to recognize the validity of her subsequent marriage. According to appellant's testimony, then she left Mr. La Roche, she moved to a different Kankakee residence where she lived for several months. Leaving her furniture in the latter residence, she later went to Las Vegas, Nevada, rented a motel room, and after approximately nine weeks, obtained a divorce. The following day she married Mr. Paccamonti in Las Vegas and returned to Kankakee the day after marriage. Appellant then moved into Mr. Paccamonti's residence. While in Nevada, appellant did not change her Illinois address for her driver's license or voter's registration.

The Ex parte Nevada divorce decree would be entitled to full faith and credit in Illinois if appellant met the domicile requirements of Nevada and thereby established the jurisdiction of the Nevada court. Ludwig v. Ludwig, 413 Ill. 44, 107 N.E.2d 848 (1952). Although a presumption arises that the Nevada domicile was Bona fide, the party challenging the decree can overcome the presumption by evidence showing an absence of intention to make a permanent home in Nevada. Stilwell v. Continental Ill. Nat'l. Bank, 31 Ill.2d 546, 202 N.E.2d 477 (1964). The evidence in the case before us is substantially similar to that in Keck v. Keck, 56 Ill.2d 508, 309 N.E.2d 217 (1974), where a Nevada decree was not given full faith and credit, and we believe that decision to be controlling here. Consequently, we hold that the trial court's determination that the Nevada decree was void for want of jurisdiction was not against the manifest weight of the evidence and that Mr. La Roche was entitled to a divorce on grounds of adultery.

Appellant also argues that the trial court failed to take into account evidence of Mr. La Roche's misconduct. Since appellant did not raise the fault or conduct of plaintiff (Mr. La Roche) in her pleadings, as rquired by Ill.Rev.Stat. ch. 40, § 9a (1973), such evidence would not be a bar to the action. Del Rosario v. Del Rosario, 133 Ill.App.2d 8, 270 N.E.2d 160 (1st Dist., 1970).

Having upheld the trial court's determination that the Nevada divorce decree was void, and having found that the evidence was sufficient to support the divorce decree entered here, we need not consider appellant's other contentions questioning the...