In Re Marriage of Melton

417 N.E.2d 220, 93 Ill. App. 3d 338, 48 Ill. Dec. 818, 1981 Ill. App. LEXIS 2108
CourtAppellate Court of Illinois
DecidedFebruary 18, 1981
Docket16415
StatusPublished
Cited by17 cases

This text of 417 N.E.2d 220 (In Re Marriage of Melton) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Melton, 417 N.E.2d 220, 93 Ill. App. 3d 338, 48 Ill. Dec. 818, 1981 Ill. App. LEXIS 2108 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE MILLS

delivered the opinion of the court:

Petitioner filed for a divorce and got it.

Now she wants it voided and nullified.

She can’t do it.

She got exactly what she asked for.

We affirm.

Petitioner-wife filed a motion to vacate a judgment of dissolution. The motion asserted that the trial court abused its discretion in denying her motion for continuance; that she did not in fact enter into the property settlement agreement upon which the judgment was based; that the court erred in not holding a bifurcated hearing on the question of property disposition; that the judgment was defective on its face; and, that the judgment was invalid since there was no evidence presented concerning grounds for the dissolution.

A docket entry shows that a hearing was conducted on May 15,1980. Petitioner’s motion in limine was allowed and both sides were given 14 days to submit additional authority. A docket entry for May 30, 1980, states:

“Motion to set aside judgment of dissolution denied. No evidence having been presented by the petitioner, Patricia Melton, on this motion, the Court believes the Judgment for Dissolution of Marriage was properly entered. The Court further notes that the petitioner by filing her Motion in Limine has prevented the Court from inquiring into the circumstances of the original divorce trial, and the petitioner has failed to sustain her burden.”

The petitioner now appeals. Her arguments can generally be divided into three categories. First, she argues that the judgment is void due to failure to plead or prove the grounds for the dissolution. Second, she asserts that the judgment must be vacated because she never entered into the agreement which served as the basis for the judgment. Finally, she argues that she was denied due process of law because she was not given the opportunity to offer evidence in support of her motion to vacate. These three areas will be examined separately.

I

In her original complaint, petitioner requested that the court enter a decree of divorce. She alleged that the respondent had been guilty of extreme and repeated mental cruelty. She further alleged that the parties had been separated for over one year through no fault on her part. At the prove-up hearing, petitioner was the only witness to testify, and she testified on her own behalf. Petitioner produced no evidence of mental cruelty but did state that the parties had been separated through no fault on her part. The trial judge orally granted dissolution and in his written order found that the respondent had been guilty of desertion.

On appeal to this court, petitioner now argues that the trial court’s order is void: (a) for failure to prove the grounds set forth in the pleadings; (b) for failure to plead grounds on which relief was granted; (c) for failure to prove grounds upon which relief was granted; and (d) for failure to make specific findings. Respondent responds that petitioner is precluded from attacking the judgment because (a) the judgment was a consent decree, and (b) any error was invited. Respondent has also made a motion in this court to conform the pleadings to the proof.

Petitioner’s arguments are not viewed with favor by this court. There is something fundamentally awry when a party is allowed to attack a judgment providing her with the relief she requested. Likewise, there is something amiss when a party on appeal attacks the sufficiency of their own case. The absurdity of petitioner’s position is perhaps best illustrated by the fact that nowhere has she claimed that she does not desire the divorce. Nowhere does she argue that she desires — or hopes — to resume the state of marriage. Petitioner’s attack upon the validity of the judgmént will not now be heard.

The scope of judicial review is tempered by a number of procedural rules. Thus we find that a person cannot try his case on one theory in the trial court and on another theory on review. (See Chambers v. Palaggi (1967), 88 Ill. App. 2d 221, 232 N.E.2d 69; Leffers v. Hayes (1945), 327 Ill. App. 440, 64 N.E.2d 768.) If a party makes an objection for one reason at trial, he cannot raise different reasons for his objection on appeal. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 383 N.E.2d 1242.) In like manner, the failure of a party to object during the course of trial constitutes a waiver of the objection. (Bohannon v. Schertz (1974), 21 Ill. App. 3d 149, 315 N.E.2d 316.) A court of review will not entertain assignments of errors which the appellant bases on rulings which may be prejudicial or injurious to others but are not so as to him. (Gordon v. Gordon (1955), 6 Ill. 2d 572, 129 N.E.2d 706; Hannas v. Hannas (1884), 110 Ill. 53.) Finally, a party who has induced the trial court to make an error, or acquiesced in its making or requested that it be made, cannot be heard on appeal to assign that same matter as error. Martin v. McIntosh (1976), 37 Ill. App. 3d 526, 346 N.E.2d 450.

Although courts have labeled these rules under the headings of waiver, estoppel, invited error or consent to a decree, all of these rules have a common thread. The purpose for these rules is to promote finality of judicial orders and efficiency in the court system. Most errors precluded by these rules could have in fact been corrected in the trial court had a party properly raised the questions. To a certain extent, the party in whose favor the rules would be applied would be harmed by the absence of these rules. In the instant case, for instance, the respondent would have been able to present evidence on the question of grounds had he felt that petitioner did not in fact believe she had grounds for the dissolution.

With these factors in mind, we hold that the petitioner cannot now contest the sufficiency of her evidence or pleadings on the question of whether grounds for the dissolution existed. (See generally, Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979), 76 Ill. App. 3d 898, 395 N.E.2d 592; Illinois Legislative Investigating Com. v. Markham (1977), 52 Ill. App. 3d 105, 367 N.E.2d 192.) A party will not be heard to complain of an order or ruling which is not prejudicial. Petitioner here has not endured any prejudice.

In this case, petitioner tried the case on the theory that she was entitled to a dissolution. At no time, prior to the entry of judgment, did she contest the sufficiency of the evidence of grounds or the allegations in the pleadings.

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Bluebook (online)
417 N.E.2d 220, 93 Ill. App. 3d 338, 48 Ill. Dec. 818, 1981 Ill. App. LEXIS 2108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-melton-illappct-1981.