Reynolds v. Reynolds ( 1973 )

Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff obtained a default divorce in the Circuit Court of Shelby County on April 11, 1972.

On April 12, 1972 defendant filed a petition to vacate judgment with leave to plead. On April 18, 1972 defendant filed an Amended Motion to Set Aside the Decree for Divorce and supporting affidavit. Plaintiff filed an answer and a counter-affidavit denying the allegations in defendant’s affidavit.

On the basis of the pleadings and the affidavits, the trial court denied the motion to set aside the decree for divorce. This appeal is from the denial of the motion.

Since the affidavit of defendant alleged some specific facts which, if true, would require setting aside of the decree, it was error to deny the motion without a hearing.

The cause is remanded for the trial court to conduct a hearing to determine whether or not the material allegations set forth in defendant’s affidavit are true. Since this case involves the welfare of minor children, at such hearing any reasonable doubt should be resolved in favor of a hearing on the merits.

Reversed and remanded.

EBERSPACHER, P., J., concurs.