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Olen v. Olen

Decided: June 27, 1973.

STANLEY OLEN, PLAINTIFF-APPELLANT,
v.
SARAH OLEN, DEFENDANT-RESPONDENT



Kolovsky, Matthews and Crahay.

Per Curiam

At the conclusion of a trial of this action for divorce held on September 14, 1972, at which both parties were represented by attorneys, the trial court ruled:

I am satisfied that the testimony supports the allegations of the complaint, that the defendant is guilty of willful and continuous desertion for more than 12 months prior to the filing of the complaint and on a counter claim that there has been a separation for more than 18 months; the parties having lived in separate habitations and there being no reasonable prospect for reconciliation. Therefore, there will be a judgment on the complaint and on the counter claim dissolving the marriage.

The determination here, Mr. Boyadjis, is merely that the desertion is willful and continuous but there will be the privilege reserved to

introduce the issue of marital fault including the right to cross examine the plaintiff on your part and Mr. Dalena's right to cross examine the defendant with regard to any reasons of marital fault as they may relate to property distribution.

On October 19, 1972, the court heard and granted a motion by defendant requiring plaintiff to answer interrogatories and to submit to examination on depositions. At the same time the court granted a motion by plaintiff's attorney to be relieved as counsel.

Although plaintiff had notice that the last mentioned motions were to be argued on October 19, 1972, he did not appear. He says that he arrived in the courtroom after the motions had been heard and decided. On October 30, 1972 he filed, without leave of court, a "notice of appeal" to this court from the several rulings made by the trial court on October 19, 1972.

By motion returnable October 27, 1972, defendant's attorney moved to settle the form of the judgment of divorce. Although the affidavit filed by defendant's attorney states that he served a copy of the proposed judgment on plaintiff, plaintiff denies that he received it. In any event, the motion was granted and the judgment of divorce in the form annexed thereto was signed on November 1, 1972.

However, the final judgment so entered recited only the court's finding that defendant had proved a cause of action entitling her to a divorce under the 18 month provision of the Divorce Act and,

"Ordered and Adjudged that pursuant to the statute in such case made and provided, the marriage between the parties is dissolved."

Instead of taking the proper course of moving in the trial court for an amendment of the final judgment, so that it would embody all the determinations made by the trial court at the hearing of September 14, 1972, plaintiff, on November 10, 1972, filed an amended notice of appeal ...


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