Record and brief — Jones v. Jones

Mice Supreme Court, AS

ILE

No. 81-195

In the

Supreme Court of the United States

Octoser Term, 1981

J. EDWARD JONES,

Petitioner,

vs.

EVELYN S. JONES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME. COURT

WILLIAM HENNING RUBIN

138 West Randolph Street

Chicago, Illinois 60€72

(312) 263-6780

Attorney for Petitioner

LAW OFFICES OF:

WILLIAM MENNING RUBIN

188 West Randolph, Rm. 722

Chicago, Illinois 60602

263-6780

Of Counse?

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UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

QUESTiON PRESENTED FOR REVIEW

The questions are substantial. The Appellate Court, 2nd

District of Illinois recently held in in re Marriage of Ruth

Cohn, Petitioner Appellant, and Stewart Cohn, Respon-

dent-Appellee that ‘‘a judgment for dissolution’’ without

a proper determination of property disposition, custody

and maintenance is ‘‘void’’ since the judgment of dis-

solution’? was entered without statutory authority and

therefore void.

This decision will affect thousands of cases in Illinois;

and the only recourse is to the Supreme Court of the

United States.

lii

INDEX

PAGE

Jurisdictional Statement 1

Statement of the Case . 2

Argument:

Point One—Is a judgment dissolving a marriage by

reserving property disposition, maintenance and

attorneys’ fees issues for future decision a final

judgment within the meaning of Illinois Supreme

887 4

Point Two—The order of Charles Fleck, head of the

Divorce Division, vacating the order of the

Honorable Mary Hooton was a valid order, based

on evidence adduced, testimony and documentary,

and the Appellate Court was in error when it

vacated that order for lack of jurisdiction ............ 8

Conclusion 9

AUTHORITIES CITED

Cases

Alyeska Pipeline v. Wilderness, 421 U.S. 420, 44 L.Ed.

2nd 141 10

Barrett v. Failing, 111 U.S. 423 2,7

Clarke v. Lott, 11 Il. 105 7

Cohn v. Cohn, 2nd District, 80-148, 127 (1981) dailies 5

ren .. 7

Maynard v. Hill, 125 U.S. 190 2, 7

Plaster v. Plaster, 47 II. 290 7

Seuss v. Sehuket, 358 II. 27 7

Spear v. Spear, 32 Il. App., 34 695 (1977) 5

Sniadach v. Family Finance Corporation, 397 U.S. 377,

23 L. ed. 2d 349 9

Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341

(1914) 9

In the

Supreme Court of the Anited States

Ocroser Term, 1981

No.

J. EDWARD JONES,

Petitioner,

VS.

EVELYN S. JONES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is invoked pursuant to

28 U.S.C., Section 1253(3) and Rule 19 of the Supreme

Court of the United States.

The Petitioner seeks an order of Court requiring the

directing of the Supreme Court of Illinois to reverse the

order of the Honorable Mary Hooton, Judge of the Munic-

ipal Court of Chicago, sitting on loan’’ to the Circuit

Court, Domestic Relations Division, granting maintenance

to the Respondent after a period in excess of 30 days fol-

lowing the entry of the decree of divorce, dissolution of

marriage.

The threshold question is whether the judgment dissolv-

ing their marriage, but making no provision for support

binds the litigants so that it is denied the jurisdiction to

grant any relief for support after a period of 30 days, fol-

lowing dissolution of marriage.

The question is substantial. This court is called upon to

determine whether or not a court can retain jurisdiction

after a period of 30 days following the dissolution of the

marriage in order to grant to the wife support, which was

omitted from the decree at the time of its entry.

The decisions of the Illinois Courts are contrary to the

provisions of Subsection A of Paragraph 1 of Rule 19 of

the U. S. Supreme Court of subsection governing review

of certiorari because the decisions of the Illinois Court in

this case are contrary to the cases of Maynard v. Hill, 125

U.S. 190, 216 and Barrett v. Failing, 111 U.S. 423, 525.

STATEMENT OF THE CASE

J. Edward Jones, the husband, an attorney by profes-

sion, filed a bill for divorce in the Circuit Court of Cook

County, Divorce Division. On December 20, 1978, the di-

vorce was granted with no order for any property set*'e-

ment or support at the time of the entry of the decree of

dissolution.

More than 30 days elapsed from the date of the entry

of the divorce decree to a hearing on maintenance; and on

April 27, 1979, a judge sitting on loan from the Municipal

Court of Chicago awarded support to the wife. No answer

or counterclaim pursuant to Section 38 of the Civil Prac-

tice Act of Illinois was filed by Respondent to entitle her

to any relief.

3

That the head of the divorce division of the Cireuit

Court of Cook County vacated that order of support on

the grounds that the Chancellor hearing the merits of the

divorce case failed to consider the proper elements to en-

title ‘‘the wife’’ to support and maintenance.

The Honorable Charles Fleck, head of the divorce divi-

sion, vacated the order of Judge Mary Hooton, who had

no experience in divorce matters, only to be reversed by

the Appellate Court of Illinois in the case entitled Jones

vs. Jones, No. 79-863. The Appellate Court held that the

Honorable Mary Hooton, although she was only a judge

of the Municipal Court, and was of the same judicial stat-

ure and of the same jurisdiction as che chief judge, Charles

Fleck, therefore order of the Appellate Court was based

on the theory that one judge cannot overrule the other

judge of similar rank, even though the previous ruling is

erroneous.

The Appellate Court reversed the ruling of the Honor-

able Charles Fleck concerning maintenance, despite the

fact that the order was legally correct, but jurisdictionally

could not be issued.

POINT I.

Is a judgment dissolving a marriage by reserving prop-

erty disposition, maintenance and attorney's fees issues

for future decision a final judgment within the meaning

of Illinois Supreme Court rules?

That Section 413 of the Illinois Marriage and Dissolu-

tion of Marriage Act, III. Rev. Stat. 1979, Ch. 40, Par.

413(a) states specifically :

„A judgment of dissolution of marriage or legal

separation or of declaration of invalidity of marriage

is final when entered subject to the right of appeal.

An appeal from the judgment of dissolution of mar-

riage that does not challenge the finding as to grounds

does not delay the finality of the provision of the

judgment which dissolves the marriage, beyond the

time for appealing from that provision, and either of

the parties may remarry pending appeal. An order

directing payment of money for support or mainte-

nance of the spouse or the minor child or children shall

not be suspende.. or the execution thereof stayed pend-

ing the appeal.

Petitioner timely moved to vacate the judgment for sup-

port alleging the court had no authority to enter a judg-

ment of dissolution before the maintenance, child support

and other property rights were determined that the court

had no authority to enter the judgment nunc pro tune May

24, 1979; and that the court erred in not making an express

written finding that there was no just reason for delaying

enforcement or appeal. The motion was denied on January

5

31, 1980, and the trial court expressly found that there was

no just reason for delaying enforcement of appeal.

The recent case of In Re Marriage of Ruth Cohn, Peti-

tioner Appellant, and Stewart Cohn, Respondent Appellee,

2nd District, 90-148 made a determination that a judgment

for dissolution without a proper determination of property

deposition custody and maintenance ‘‘is void’’ since the

judgment of ‘‘dissolution’’ was entered without statutory

authority and therefor’ void. The ease further held that

such a judgment is ‘‘subject to affect at any time’’ the

case of Spears v. Spears, 1977, 32 Ill. App. 3d 695 is cited

in support of this contention, cited by the Illinois Supreme

Court. The principle of that case is that the Court ‘‘lacked

authority to enter the judgment. ‘‘That if the recent de-

cision of Cohn v. Cohn, Ibid., is to remain the law of this

state, J. Edward Jones, the Petitioner is entitled to ave

the divorce decree vacated and held for naught.

That from a practical standpoint, Respondent is in a

much better financial position than Petitioner, due to the

fact that Petitioner filed a partition suit for and on behalf

of Respondent’s sister, as the result of which their father’s

property was sold at a partition sale and Respondent re-

ceived approximately $90,000 in cash.

That these facts are only set forth for the purpose of

convincing the court that it is not « question of protecting

the wife, who might be penniless as a result of a divorce

decree having been entered without proper provision being

made for the support of the spouse.

On May 2, 1980, the Honorable Judge Allen Rosin en-

tered an order appointing a sequestrator to enforce the

support order and continued the matter until May 8.

Petitioner served notice of appeal pursuant to the Rules

of the Supreme Court of Illinois on the theory that an

6

appeal from the appointment of a cequestrator grants and

permits an interlocutory appeal as a matter of right.

This appeal was docketed as No. 80-1335.

A second appeal was docketed as 80-1516 and was the

result of the following circumstances:

Despite the fact that a final decree had been entered on

December 20, 1978, and no claim for support and mainte-

nance had been filed pursuant to Rule 308 of the Rules of

the Supreme Court, an order was entered for support of

the Respondent.

On the day of the entry of the order a judge, Mary

Hooton, of the Municipal Court of Chicago was ‘‘on loan’’

to the Domestic Relations Division of the Circuit Court.

The Judge had no previous knowledge or experience

with Domestic Relations matters.

Petitioner had requested a continuance, since he is a

lawyer of longstanding and had a case that was previously

set for trial, and was unable to be present in Court.

Nevertheless, the Honorable Mary Hooton denied a con-

tinuance and Petitioner was required to engage another

lawyer to represent him.

That Respondent falsely claimed that she was penniless,

when in fact she was the half owner of two parcels of real

estate.

That as a resv’+ of the efforts of Petitioner in a parti-

tion suit representing the sister-in-law and niece in the

partition proceeding and all of the facts being a matter

of record, Respondent received $88,500 in cash.

Under these circumstances, at the time the decree for

support was entered, it was not as the result of a valid

7

determination, based on an evidentiary hearing, since the

Respondent was in a much better financial position than

the Petitioner.

The decision to award the Respondent any sum whatso-

ever is contested on the grounds of jurisdiction.

It is further contended that once the decree of divorce

was entered when no order of support or division of prop-

erty was provided for, Respondent’s claims to Petitioner’s

property were waived.

The cases supporting this contention are Clarke v. Lott,

11 II. 105, 114-115; Plaster v. Plaster, 47 III. 290, 294-295;

Kelley v. Kelley, 317 Ill. 104 and Seuss v. Schuket, 358 III.

27, 35; Maynard v. Hill, 125 U.S. 190, 216; Barrett v. Fail-

ing, 111 U.S. 423-525.

It has always been the established case law in Illinois

that once a decree of divorce is finalized, the rights of the

parties to each other’s property are extinguished and each

of the parties are fovever barred from maintaining a claim

against each other.

The same ruling was adopted by this Court in Maynard

v. Hill, 125 U.S. 190, 216 and Barrett v. Failing, 111 US.

423-525.

The Honorable Mary Hooton, Judge of the Municipal

Court, being inexperienced in the field of Domestic Rela-

tions and completely uninformed as to the requirements

to obtain sup ort and maintenance, issued a blanket order

for the payment of the sum of $686.00 per month.

When the divorce decree was entered, there was no

reservation for a property settlement or maintenance and

support. That the entry of an order more than 30 days

after the decree of divorce is void, since the Court lacked

jurisdiction.

8

POINT II

THE ORDER OF CHARLES FLECK, HEAD OF THE

DIVORCE DIVISION, VACATING THE ORDER OF

THE HONORABLE MARY HOOTON WAS A VALID

ORDER, BASED ON EVIDENCE ADDUCED, TESTI-

MONY AND DOCUMENTARY, AND THE APPELLATE

COURT WAS IN ERROR WHEN IT VACATED THAT

ORDER FOR LACK OF JURISDICTION.

The Appellate Court was in error when it reversed the

ruling of the Honorable Charles Fleck based on the theory

that he was of similar rank and stature as that of Mary

Hooton, even though he was chief justice of the Domestic

Relations Division and could not vacate her order of sup-

port.

A chief judge of the Domestic Relations Division has

supervisory powers and it is his duty and obligation when

he sees that error has been committed to correct it.

The appointment of the sequestrator was a void crder,

since the ruling of the Honorable Mary Hooton to award

support and maintenance was entered beyond the 30-day

period and, in fact, a substantial amount of time had

elapsed.

The court no longer had jurisdiction to award support

and maintenance more than 30 days following the entry

of the decree of divorce (separation).

The appointment then of the sequestrator was a viola-

tion of due process, contrary to the 14th Amendment to

the Constitution since no provision was made for a hearing

by the judge where testimony would be taken and evidence

adduced to show the necessity for said appointment.

Due process of law guarantees no particular form of

procedure, but it does protect substantial rights, after a

decree of dissolution has been entered. Sniaduch v. Family

Finance Corporation, 397 U.S. 377, 23 L. ed. 2d 349.

Petitioner’s contention is further supported by the case

of Weeks v. United States, 232 U.S. 383, 532, 34 S. Ct. 341

(1914).

There was no basis for appointing a sequestrator when

the order of support was being challenged.

One of the most important points for this court to decide

is whether or not the Court can retain jurisdiction for

support and maintenance months after a decree of divorce

has terminated the rights of the parties (approximately

four months later).

CONCLUSION

Petitioner contends that there has been a lack of due

process of law for the following reasons:

1. Neither the Appellate Court nor the Supreme Court

of Illinois granted an appeal as is provided by the Illinois

Practice Act.

2. 1˙ e Courts of Illinois have refused to recognize the

well-er blished rule that after a decree of dissolution has

been tered, the rights of the parties and the property

of the other former spouse no longer exists. (See the cases

above set forth, including two cases in this court.)

3. The Illinois Supreme Court has allowed the respon-

dent relief even though no counterclaim is filed as required

by Section 38 of the Illinois Practice Act.

4. The award of a $50,000 judgment for attorneys’ fees

and other attorney’s fees under the above circumstances

10

is wholly unjust. The Supreme Court of the United States

as recently held in the Alyeska case, Alyeska Pipeline v.

Wilderness, 421 U.S. 420, 44 L.Ed. 2nd 141, that each

litigant must pay for his own attorneys’ fees.

Respectfully submitted,

WLan HENNING Rus

Counsel for Petitioner

WLan Hernine RURx

188 Vest Randolph, Rm. 722

Chicago, IIlinois 60602

(312) 263-6780

xipueddy

81-195

No. —

Court, U.S.

FILED

AUG 10 1981

In tue ALEXANE *< L. STEVAS,

Supreme Court of the United States

Octoser Term, 1981

J. EDWARD JONES,

Petitioner,

VS.

EVELYN S. JONES,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

WILLIAM HENNING RUBIN

188 West Randolph Street

Chicago, Illinois 60602

(312) 263-6780

Attorney for Petitioner

LAW OFFICES OF:

WILLIAM HENNING RUBIN

188 West Randolph, Rm. 722

Chicago, Illinois 60602

263-6780

Of Counsel

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX TO APPENDIX

Article III. Civil Appeals Rules App. 1

Order denying Petition for Leave to Appeal dated

1 — App. 2

e App. 3

Order dated November 13, 1980 —— App. 4

In the

Supreme Court of the United States

Octosper Term, 1981

No.

J. EDWARD JONES,

Petitioner,

vs.

EVELYN S. JONES,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

ARTICLE III. CIVIL APPEALS RULES

Part A. Appeals From The Circuit Court

Rule 301. Method of Review

Every fina) judgment of a circuit court in a civil case is

appealable as of right. The appeal is initiated by filing a

notice of aypeal. No other step is jurisdictional. An ap-

peal is a continuation of the proceeding. All rights that

could have been asserted by appeal or writ of error may

be asserted by appeal. No formal exception need be taken

in order to make any ruling or action of the court review-

able.

App. 2

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

March 30, 1981

Mr. William Henning Rubin

Attorney at Law

188 W. Randolph St., S#714

Chicago, IL 60602

No. 54367—J. Edward Jones, petitioner, vs. Evelyn S.

Jones, respondent. Leave to appeal, Appel-

late Court, First District.

The Supreme Court today denied the petition for leave

to appeal in the above entitled cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

In re the Marriage of )

)

J. Edward Jones and ) No. 54367

)

Evelyn S. Jones )

ORDER

This cause coming on to be heard on the motions of J.

Edward Jones (1) for leave to file a motion for reconsider-

ation of this court’s denial of his petition for leave to ap-

peal; (2) for a stay of the issuance of the mandate of this

court upon its order denying movant’s petition for leave

to appeal pending the filing of a petition for a writ of

certiorari to the Supreme Court of the United States; and

(3) to vacate the order entered in this cause on April 2,

1981 by the Honorable Allen T. Rosin, a judge of the cir-

cuit court of Cook County, remanding J. Edward Jones to

the custody of the Sheriff, and the court having heard the

ts of counsel and being fully advised in the prem-

ises :

IT IS HEREY ORDERED

(1) that the motion for leave to file a motion for re-

consideration of the denial of the movant’s petition for

leave to appeal is DENIED;

(2) that the mandate to be issued by this court upon its

denial of the movant’s petition for leave to appeal is stayed

pending the prompt filing of a petition for a writ of

certiorari to the Supreme Court of the United States and

the disposition of said petition;

(3) that this cause is remanded to Judge Allen T. Rosin

with directions to vacate that part of his order of April 2,

1981, which remanded J. Edward Jones to the custody of

the Sheriff, and to order the Sheriff to release J. Edward

Jones from custody.

/s/ Daniel P. Ward

Justice

ENTER: April 6, 1981

App. 4

80-1335, 80-1516, 80-2171

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

IN RE MARRIAGE OF

J. EDWARD JONES,

Petitioner,

and

EVELYN S. JONES,

— — —t — — —V —1E— —

Respondent.

ORDER

This court having reviewed all pending motions and re-

sponses thereto and being fully informed;

IT IS ORDERED that the motion of Evelyn S. Jones,

Appellee, be and the same is hereby granted and the ap-

peals in cases numbered 80-1335, 80-1516 and 80-2171 be

and the same are hereby dismissed.

DATED at Chicago, Lllinois, this 13th day of November,

1980.

ENTER:

ORDER ENTERED Nov. 13 1980

/s/ Illegible

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