Bilsky v. Bilsky

• Decision Date: 13 March 1974
• Docket Number: No. 56679,56679
• Citation: 309 N.E.2d 697,18 Ill.App.3d 329
• Parties: Mildred BILSKY, Plaintiff and Counter-Defendant, Appellant, v. Howard BILSKY, Defendant and Counter-Plaintiff, Appellee.
• Court: United States Appellate Court of Illinois

Page 697

309 N.E.2d 697

18 Ill.App.3d 329

Mildred BILSKY, Plaintiff and Counter-Defendant, Appellant, v. Howard BILSKY, Defendant and Counter-Plaintiff, Appellee.

No. 56679.

Appellate Court of Illinois, First District, Fourth Division.

March 13, 1974.

Dom J. Rizzi, Chicago, for plaintiff and counter-defendant, appellant.

No brief submitted by defendant and counter-plaintiff, appellee.

ADESKO, Presiding Justice.

Mildred Bilsky, plaintiff and couter-defendant, appellant (hereinafter counter-defendant) filed a suit for separate maintenance or in the alternative for divorce against her husband, Howard Bilsky, defendant and counter-plaintiff, appellee (hereinafter counter-plaintiff) in which she alleged as grounds for divorce that Mr. Bilsky was guilty of adultery and mental cruelty. Mr. Bilsky filed a counterclaim for divorce in which he alleged as grounds for divorce physical and mental cruelty. At the trial Mrs. Bilsky did not proceed with her complaint but offered evidence in defense of the counterclaim of Mr. Bilsky. A bench trial was had solely on the counterclaim and the court found in favor of the counter-plaintiff. In this appeal the counter-defendant maintains that the counter-plaintiff failed to prove as a matter of law conduct amounting to extreme and repeated mental cruelty. It is also contended by the counter-defendant that the counter-plaintiff failed as a matter of law to prove lack of provocation and that he failed to establish that the alleged acts of mental cruelty affected his physical or mental health. The counter-defendant also contends that her defense of recrimination is a bar to the entry of the divorce decree in favor of the counter-plaintiff. We find no merit in these contentions.

The parties were married on January 17, 1970, in Chicago, Illinois and the complaint of Mrs. Bilsky was filed on September 9, 1970. As stated previously, Mr. Bilsky filed a counterclaim for divorce and although it alleged both physical and mental cruelty, no evidence of physical cruelty was introduced at the trial. The counter-plaintiff testified that two weeks after the marriage he and Mrs. Bilsky went on a two week honeymoon in Miami, Florida, which was financed entirely by Mrs. Bilsky. The counter-plaintiff stated that he did not want to go on the honeymoon and that he did not have any funds as he was between jobs at the time. However, Mr. Bilsky did go and he testified that Mrs. Bilsky would dole out money to him for the cost of meals, including tips. He stated that Mrs. Bilsky would give him whatever the cost of the meal was and that this embarrassed him. Mr. Bilsky testified further that he did the shopping, prepared the meals, cleaned the apartment, did his own laundry and that the plaintiff retired each evening at 7 or 8 p.m. Mrs. Bilsky, according to the counter-plaintiff, continuously accused him of drinking and being a drunk. She also accused Mr. Bilsky of carousing with other women because she found cigarette butts in his car with lipstick on them. However, Mr. Bilsky explained that some of these belonged to his mother and some to office girls in the shop where he worked. He testified he gave them rides to public transportation because the shop was located in a bad neighborhood. Mr. Bilsky also testified that Mrs. Bilsky interfered with his watching television by turning the volume down or by turning the set off. Mr. Bilsky stated that he lost nine or ten pounds during the period that the parties lived together.

On July 6, 1970, the counter-plaintiff's thirteen year old son, by a prior marriage, came to live with the parties without the prior consent of Mrs. Bilsky. Mr. Bilsky testified that Mrs. Bilsky treated his son as an unwelcome guest but that she was concerned for his son's well-being and did not treat him badly. Mr. Bilsky testified that Mrs. Bilsky would not cook or clean for his son nor do his laundry. Mr. Bilsky stated, 'It was--in other words, she was not his mother and she didn't want to act as his mother and she wouldn't do any of the matronly acts that belonged in a household.'

During the course of the marriage, difficulties with sexual relations developed and the counter-plaintiff accompanied his wife to see her gynecologist. The doctor did not testify but Mr. Bilsky was permitted to testify over objection that the doctor's conclusion was that Mrs. Bilsky had an obsession with money and that this was an obstruction to their sexual relations. Mr. Bilsky testified that during the marriage he went to see a doctor because of his mental distress and that he was an asthmatic and feared that mental distress would aggravate the problem.

On August 8, 1970, the counter-plaintiff and his son moved from the marital residence into an apartment at 6727 N. California. Mr. Bilsky stated he moved for the sake of his sanity and that of this son. According to Mr. Bilsky, he could no longer stand the harassing and embarrassment and the accusations and the allegations that were thrown upon him by Mrs. Bilsky in front of his son.

The counter-defendant testified and her testimony was in direct conflict with that of Mr. Bilsky. Mrs. Bilsky stated she first learned the defendant was without funds on the day of the wedding and that he was unemployed until March 10, 1970. Shetestified that after Mr. Bilsky began working he never paid any of the bills and that she paid the rent and utilities. She also state that she paid for the food and only after she begged Mr. Bilsky for money did he begin to give her $10.00 per week for expenses.

Mrs. Bilsky also testified that she did the cleaning and that the counter-plaintiff would call her from one end of the apartment to the other to show her a spot she had missed. She stated that she did the cooking and that she treated the counter-plaintiff's son well. Mrs. Bilsky explained that the visit to her gynecologist was intended to get Mr. Bilsky to assume his responsibilities. She stated she tried to please her husband in every way.

Mrs. Bilsky stated her husband began coming home late or not at all in May of 1970. She found lipstick and cigarettes not used by her in his car. She found the name of another woman in Mr. Bilsky's wallet which he refused to explain. She stated Mr. Bilsky was in an automobile accident on the Saturday after he left the marital residence and that a woman he was dating was a passenger.

The counter-defendant hired a detective and he testified that he had Mr. Bilsky's apartment at 6727 N. California under surveillance between February 12 and 16 of 1971. The detective stated he observed the counter-plaintiff and a woman leaving and entering the apartment and spending the night there. The detective marked both entrances to the apartment and stated no one could have gone out the other entrance. He observed the woman drive an automobile with license number MB 5425, and through a license check determined that the woman was Irene Buyer. At the trial the detective identified Mr. Bilsky as the man he observed in the apartment. The detective stated he observed Mr. Bilsky and Irene Buyer walking hand in hand in a shopping center. Upon cross-examination the detective did state that during the time he had the apartment under surveillance he did not observe an act of sexual intercourse between Mr. Bilsky and Irene Buyer. The detective was also directed to check and address at 7133 N. Damen and he stated that the mailbox for apartment 8 at that address had the names Buyer and Bilsky on it. He also stated that the automobile with license number MB 5425 was parked at the rear of this apartment.

The trial court found in favor of the counter-plaintiff and the first issue raised by the counter-defendant in this appeal is that the counter-plaintiff failed to prove extreme and repeated mental cruelty. This contention is predicated upon the assertion that more evidence than the complaining party's bare assertion...