{ "id": 5256219, "name": "Robert F. Voral, Plaintiff-Appellee, v. Adrienne M. Voral, Defendant-Appellant", "name_abbreviation": "Voral v. Voral", "decision_date": "1962-10-23", "docket_number": "Gen. No. 48,739", "first_page": "328", "last_page": "334", "citations": [ { "type": "official", "cite": "38 Ill. App. 2d 328" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "255 Ill App 389", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5543891 ], "opinion_index": 0, "case_paths": [ "/ill-app/255/0389-01" ] }, { "cite": "79 Ill 450", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2686137 ], "opinion_index": 0, "case_paths": [ "/ill/79/0450-01" ] }, { "cite": "189 NE 907", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "355 Ill 504", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5286433 ], "opinion_index": 0, "case_paths": [ "/ill/355/0504-01" ] }, { "cite": "171 NE2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill App2d 273", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5217693 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0273-01" ] }, { "cite": "164 NE2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill App2d 356", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5208413 ], "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/24/0356-01" ] }, { "cite": "34 NE2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "310 Ill App 465", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3376972 ], "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/ill-app/310/0465-01" ] }, { "cite": "66 NE2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "328 Ill App 525", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5652579 ], "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app/328/0525-01" ] } ], "analysis": { "cardinality": 524, "char_count": 9825, "ocr_confidence": 0.528, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15698347664284676 }, "sha256": "becf89a8d396d3e5edd9cee42ab117cbdc195542765caf10d04d8a5d7c3a029a", "simhash": "1:c2dee9a4903950bd", "word_count": 1696 }, "last_updated": "2023-07-14T22:48:14.630720+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BRYANT, P. J. and FRIEND, J., concur." ], "parties": [ "Robert F. Voral, Plaintiff-Appellee, v. Adrienne M. Voral, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE BURKE\ndelivered the opinion of the court:\nOn June 13, 1961, Robert F. Yoral filed a complaint for divorce on the charge of adultery against his wife Adrienne. He alleged that the parties were married at Chicago on November 27, 1954 and \u201clived together as husband and wife until February 1, 1960\u201d; that from then until June 3, 1961 they resided in the same apartment, occupying separate bedrooms, and that she left their home. He stated that no children were born to or adopted by them. He further averred that on or about June 2, 1961, he \u201cascertained\u201d that she committed adultery with \u201ca certain person\u201d and that as a result she \u201chas become pregnant\u201d; that he is in no way responsible for her pregnancy and that when he \u201cconfronted\u201d her with the charge, she vacated their home. He asked that in addition to severing the bonds of matrimony, she be denied support and maintenance, be barred from asserting any right title or interest in any of his property, that his wife\u2019s pregnancy \u201cshall not be attributable\u201d to him and that she be restrained from incurring any indebtedness for hospitalization or medical expenses because of her pregnancy.\nIn answer the defendant denied that she was guilty of adultery and asserted that she. was then pregnant as a result of marital relations with plaintiff. Subsequently she filed a counter-claim asserting that as a result of the marriage with plaintiff a child, David Lee Yoral, was born on August 14, 1961. She charged plaintiff with extreme and repeated cruelty on December 20, 1959, January 2, 1961 and June 3, 1961. She stated that by the joint effort and contributions of the parties certain shares of stock, two pieces of real estate, the contents of a safety deposit box and miscellaneous furniture and fixtures were acquired and that she is entitled to an accounting and adjudication as to her share in the property. She incurred expenses for hospitalization and for physician fees in the birth of the baby. She prayed for a decree of divorce, temporary alimony, attorney\u2019s fees, custody, control and education of their child and funds for his care and education, an accounting of the assets and income of plaintiff and for a decree finding and awarding her the interest to which she is entitled in the property. Plaintiff denied the material allegations of his wife\u2019s counter-complaint.\nDefendant filed a verified petition asking for custody of David, temporary alimony, support money for David, and temporary attorney\u2019s fees. In her petition she said that at the instance of her husband a criminal charge that she was guilty of adultery was brought against her in the Municipal Court of Chicago and that her motion therein for a \u201cdirected finding of not guilty was sustained.\u201d In his answer to the petition he admitted that on the criminal charge of adultery against her in the Municipal Court there was a directed finding of \u201cnot guilty in her favor.\u201d He denied the other material allegations of her petition and denied that she was entitled to any relief. The court set the application for temporary alimony and attorney\u2019s fees for a \u201cpreliminary hearing to ascertain whether it is probable that the respondent can sustain\u201d her charges under the provisions of Ill Rev Stats 1961, Ch 40, Sec 16. On November 30, 1961, the court, having heard the testimony of witnesses and the arguments of counsel, found that \u201cthere is probable cause that plaintiff will sustain his complaint; further, that plaintiff is not the father of the child born to the defendant.\u201d The court concluded the order bj^ denying the petition of the wife for temporary alimony, child support and attorney\u2019s fees.\nOn December 6, 1961, plaintiff (husband) filed his motion for a summary decree for divorce and further relief based on the contention that on November 30, 1961 the court found that David was not the son of plaintiff, \u201cthereby, by inference, finding that the defendant, Adrienne M. Yoral, is guilty of Adultery,\u201d and that all other facts necessary \u201cto be proved before a decree for divorce may be entered are admitted by the pleadings.\u201d The wife\u2019s verified answer to the motion for a summary decree said that the divorce Chancellor erred in his previous findings, \u201cbased on an obvious mistake\u201d; that the evidence presented did not prove any act of adultery and that the parties lived and cohabited together as husband and wife until June 3, 1961. On December 19, 1961, the court entered a summary decree finding that no children were born to or adopted by the parties; that the wife \u201chas been guilty of adultery, which adultery is evidenced by the fact that the defendant gave birth to a child and that the plaintiff is not the father of the child.\u201d The court decreed that the bonds of matrimony be dissolved, that the counterclaim of the wife be dismissed for want of equity and that the wife be divested of all rights to alimony, \u201cincluding dower, homestead, thirds, distribution and all other rights that she may have in the property or may hereafter acquire.\u201d\nDefendant, appealing, insists that the court erred in entering a summary decree because there was a material issue of fact to be resolved. We have held that the purpose of the summary judgment procedure is not to try an issue of fact, but to determine whether there is an issue of fact. Scharf v. Waters, 328 Ill App 525, 537, 66 NE2d 499; Gliwa v. Washington Polish Loan and Building Ass\u2019n, 310 Ill App 465, 470, 34 NE2d 736; Tezak v. Cooper, 24 Ill App2d 356, 362, 164 NE2d 493; Mastercraft Lamp Co. v. Mortek, 28 Ill App2d 273, 171 NE2d 427. Plaintiff maintains that there was no issue of fact either as to the paternity of the child or the defendant\u2019s guilt of adultery because these issues had been determined by a consent order entered after a hearing on November 30, 1961.\nPlaintiff\u2019s argument that because of the approval of the order of November 30,1961, by the attorney for the wife that she is not in a position to challenge the findings in that order on paternity and adultery, is without merit. The Chancellor conducted only a limited hearing to ascertain whether there was reasonable probability that the husband could sustain his charges of adultery. At the conclusion of the testimony in the preliminary hearing, the court announced a finding of probable cause that the husband \u201ccan maintain his complaint for adultery\u201d and that David is not the child of the husband. The attorney for the wife immediately announced that he would appeal the ruling, to which the court responded, \u201cYes, you can take your appeal.\u201d It is clear that the order of November 30, 1961, was not a consent order and that the Chancellor, the parties and their attorneys understood that the wife was dissatisfied with the order and intended to appeal. The order of November 30 was not entered with the consent of the wife or her attorney.\nThe testimony at the preliminary hearing was insufficient to show that the wife was guilty of adultery. In his argument at the preliminary hearing the attorney for the plaintiff said in effect that the defendant should be found guilty of adultery and the child declared illegitimate because of \u201copportunity plus desire.\u201d The defendant and the man charged to be her paramour denied the charge of adultery. She said that she did not become acquainted with this man until May 1961. There was no evidence to the. contrary. The baby was born the following August.\nThere is no dispute that the parties lived in the same apartment until two months before the baby was born. There is support for the defendant\u2019s contention that the Chancellor misunderstood her testimony as to the time when she ceased having sexual relations with her husband.\nPlaintiff suggests that defendant was not entitled to a Jury trial because she did not pay the Jury fee, citing, Hunt v. Rosenbaum Grain Corp., 355 Ill 504, 189 NE 907. In that case the record showed that approximately a year after the appearance, appellant filed a motion for an order directing the clerk to accept a Jury fee of $8 and tendered it in open court. The Supreme Court said that no reasonable excuse was shown for failure to pay the Jury fee at the time the Statute provided and that the court properly denied the motion. When defendant entered her appearance in the instant case she demanded a jury trial. The record is silent as to the payment of a Jury fee. The question was not raised in the Trial Court. In Miller v. Superior Machine Company, 79 Ill 450, the court said (452) that \u201cin the absence of proof it would presume the fees required to be advanced were paid at the proper time, and to the proper officer, as required by the Statute.\u201d We assume that the clerk performs his duty in collecting the statutory fees. Section 7 of the Divorce Act (Ill Rev Stats, c 40, \u00a7 8 1961) provides that when the defendant appears and denies the charges either party shall have the right to have the cause tried by a Jury. In Caplow v. Caplow, 255 Ill App 389, the court said that the motion for a Jury Trial in a divorce case \u201cis not too late if made when the cause is called for trial.\u201d We think that the wife protected her right to a Jury Trial.\nIn the case at bar the decree divested the wife of \u201call other rights that she may have in the property that the husband may now have.\u201d There was no evidentiary basis for this divestiture.\nThe decree is reversed and the cause is remanded with directions to proceed in a manner consistent with the views expressed.\nDecree reversed and cause remanded with directions.\nBRYANT, P. J. and FRIEND, J., concur.", "type": "majority", "author": "MR. JUSTICE BURKE" } ], "attorneys": [ "Theodore F. Zbiegien, of Chicago (William Marosco, of counsel), for appellant.", "Friedman, Armstrong, Donnelly & Friedman, of Chicago, for appellee." ], "corrections": "", "head_matter": "Robert F. Voral, Plaintiff-Appellee, v. Adrienne M. Voral, Defendant-Appellant.\nGen. No. 48,739.\nFirst District, Second Division.\nOctober 23, 1962.\nTheodore F. Zbiegien, of Chicago (William Marosco, of counsel), for appellant.\nFriedman, Armstrong, Donnelly & Friedman, of Chicago, for appellee." }, "file_name": "0328-01", "first_page_order": 338, "last_page_order": 344 }