Sidwell v. Sidwell

• Decision Date: 22 May 1975
• Docket Number: No. 12672,12672
• Parties: Doris SIDWELL, Plaintiff-Appellee, v. Roy SIDWELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 595

328 N.E.2d 595

28 Ill.App.3d 580

Doris SIDWELL, Plaintiff-Appellee, v. Roy SIDWELL, Defendant-Appellant.

No. 12672.

Appellate Court of Illinois, Fourth District.

May 22, 1975.

Rehearing Denied June 17, 1975.

Ralph D. Glenn, Glenn & Logue, Mattoon, for defendant-appellant.

Harlan Heller, and William E. Larrabee, Harlan Heller, Ltd., Mattoon, for plaintiff-appellee.

SIMKINS, Presiding Justice:

In 1964, the parties sought a divorce from each other. They have been in court almost continuously since then. This is the third appeal. A brief review of the history of this litigation will be useful to place the parties' contentions in perspective.

The wife filed a complaint for divorce in 1964. The husband filed a counterclaim. The trial court denied a divorce to either. The wife appealed and this court reversed and remanded. Sidwell v. Sidwell, 75 Ill.App.2d 133, 220 N.E.2d 479.

After remandment, the trial court again denied the wife a divorce. However, the husband obtained a divorce in Arkansas in 1967. In 1968, Mrs. Sidwell filed suit seeking, among other requests, to settle property disputes, rights to alimony and attorneys fees. She had also requested such relief in the first complaint in 1964. Mrs. Sidwell's complaint was dismissed, upon Mr. Sidwell's motion. She appealed. In Sidwell v. Sidwell, 132 Ill.App.2d 1055, 271 N.E.2d 115, this court held that she was entitled to have adjudicated her rights arising out of the dissolution of the marriage.

Other issues were involved in those appeals but are not pertinent to the resolution of this case.

Subsequent to our reversal and remandment on the second appeal, Mrs. Sidwell filed her amended complaint. In that complaint she alleged special equities in defendant's property and requested conveyance under Ill.Rev.Stat.1971, ch. 40, § 18. She also requested alimony under Ill.Rev.Stat.1971, ch. 40, § 19 and attorneys fees under Ill.Rev.Stat.1971, ch. 40, § 16.

Defendant answered and included in his answer was a demand for jury trial. Plaintiff, Mrs. Sidwell, moved for summary judgment. Defendant did not reply to this. The court granted summary judgment on the special equities claim. He ordered defendant to convey to his ex-wife 125 acres of farmland, title to which had been solely in defendant's name. This occurred on July 21, 1972, at which time the court also struck defendant's jury demand. Other questions were reserved.

On March 4, 1975, the court heard evidence in relation to attorneys fees and awarded $20,000 to the wife. The wife at that time waived her alimony claim.

Defendant husband has appealed, raising these issues: 1) Whether the Arkansas court which granted the divorce had jurisdiction over the property claims, thereby excluding Illinois courts' jurisdiction; 2) Whether summary judgment on the special equities claim was improper; 3) Whether defendant has a right to jury trial on the issues raised in the complaint; 4) Whether the attorneys fees were improper and excessive; 5) Whether the court's finding of special equities was against the manifest weight of the evidence.

In the second Sidwell appeal, this court said:

'The wife, in her proposed amended complaint, alleges that the husband secured an Arkansas divorce. As the pleadings now stand, the parties are committed to the validity of the Arkansas divorce. Upon the authority of Schwarz (Schwarz v. Schwarz, 27 Ill.2d 140, 188 N.E.2d 673) the wife may bring an action for the determination of equities in property and of alimony and attorneys fees where the marital status has been determined by a valid Ex parte foreign decree, but such latter court was without personal jurisdiction to determine equities in property or alimony.

* * * The order of the trial court in denying the wife leave to file an amended complaint seeking a division of the property, alimony and attorney fees is reversed and this cause is remanded with directions that the motion to file such amended complaint be granted.'

Sidwell v. Sidwell, 132 Ill.App.2d 1055, at 1058, 271 N.E.2d 115, at 118.

After remandment, defendant contended in the trial court, and contends here, that plaintiff's complaint should nonetheless have been dismissed because the Arkansas divorce was not, in fact, Ex parte. He bases his argument on a special appearance by the wife (defendant in the Arkansas action) contesting the jurisdiction of the Arkansas court on the grounds that a similar action was pending in Illinois. He would have us find that this was a general appearance by his wife, which gave the Arkansas court personal jurisdiction and precluded her from seeking the relief she has sought in Illinois courts.

In the second Sidwell appeal, the question directly presented to this court was whether the trial court could adjudicate the rights which arose upon dissolution of the marriage. In that appeal, defendant contended the trial court did not have jurisdiction, although he did not rely on the exact grounds presented here. Defendant could have raised the issue he presents at any time since the 1967 divorce. He did not choose to do so until one appeal and numerous court appearances later.

The issue of the trial court's jurisdiction has already been finally adjudicated. It cannot again be raised by defendant at this late date.

'A court's jurisdiction having been once attacked, the former adjudication precludes the raising of the question again. Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, 103 N.E. 227. The doctrine of res adjudicata and estoppel applies not only to all matters that were litigated, but to all others that might have been presented in that proceeding. Cases will not be entertained and tried piecemeal.' Chamblin v. Chamblin, 362 Ill. 588, at 592, 1 N.E.2d 73 at 74--75.

Unfortunately some cases must be 'entertained' repeatedly. However, once a question has been determined on appeal, just as it cannot be attacked collaterally in a later proceeding, it cannot be attacked in a later appeal. The doctrine of res judicata is fully applicable and precludes defendant from raising this issue.

In any case, the Arkansas decree itself clearly states its Ex parte nature. It states '* * * Said Defendant (Plaintiff here) has failed to enter an appearance in this cause or defend.' The decree was entered at the husband's request. We see no need to decide whether this was a special or general appearance under Arkansas Law, when the Arkansas court itself found that the wife did not appear.

Defendant contends that it was not proper for the trial court to decide the special equities question on summary judgment.

Summary judgment is proper only when the issue is determinable solely as a question of law. The court may not, on the motion for summary judgment, draw fact inferences. Such inferences may be drawn only on trial. State Farm Mutual Auto Insurance Co. v. Short, 125 Ill.App.2d 97, 260 N.E.2d 415. We are not unmindful of the fact that the same trial judge has heard these parties, since the first complaint was filed in 1964. At that time there was a trial and evidence was heard on this issue of special equities. That evidence could properly be considered by the court. Klebba v. Klebba, 108 Ill.App.2d 32, 246 N.E.2d 681. However, that evidence was conflicting in regard to facts which go to the special equities issue. Mrs. Sidwell had testified that she had contributed her own monies to household expenses thereby freeing her husband's funds for use in purchasing land. This could properly be the basis for allowing a special equities claim. Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201. Mr. Sidwell denied that his wife had contributed to any great extent. Since a fact question is presented, summary judgment is not the proper procedure.

Plaintiff contends that defendant cannot attack this procedure when he did not traverse the motion in the trial court. She cites several case which stand for the proposition that facts well pleaded, and not controverted by counter-allegations or affidavits, stand admitted. However, there is a crucial difference between the cases plaintiff cites and the case at bar. In those cases the facts...