Collins v. Collins

• Decision Date: 22 March 1977
• Docket Number: No. 62659,62659
• Parties: , 5 Ill.Dec. 464 Maggie COLLINS, Plaintiff-Appellee, Cross-Appellant, v. Joseph COLLINS, Defendant-Appellant, Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 787

361 N.E.2d 787

47 Ill.App.3d 258, 5 Ill.Dec. 464

Maggie COLLINS, Plaintiff-Appellee, Cross-Appellant, v. Joseph COLLINS, Defendant-Appellant, Cross-Appellee.

No. 62659.

Appellate Court of Illinois, First District, Second Division.

March 22, 1977.

Chester L. Blair, Chartered, Chicago, for defendant-appellant (Joseph Collins).

George L. Lincoln, Chicago, for plaintiff-appellee (Maggie Collins).

DOWNING, Presiding Justice:

Plaintiff, Maggie Collins, brought an action for separate maintenance against defendant, Joseph Collins, who then counterclaimed for a divorce. Following a bench trial, the court awarded separate maintenance to plaintiff and denied defendant's counterclaim. Defendant appeals from the denial of his divorce, the order of separate maintenance, and the order to pay a portion of plaintiff's attorney's fees. Plaintiff cross-appeals from the court's finding that the child, Letitia Collins, was not born of the parties and from the court's order denying payment of the entire amount of arrearage in temporary support payments allegedly owed by defendant.

Plaintiff was married to a former husband, Louis Hill, when the child Letitia was born on September 10, 1967. Hill had left plaintiff around 1960. From 1962 onward plaintiff and defendant maintained a sexual relationship; they married on September 25, 1971. Although defendant suggested that plaintiff was having an affair with a man who drove her to work, plaintiff denied it. Defendant left the marital home on February 26, 1974, under circumstances which are disputed by the parties. They often argued about finances and each spouse contends the other struck blows in the course of a particular argument. Plaintiff described defendant as bad-tempered in that he occasionally beat her, often cursed at her, and continuously berated her children in obscene terms. On the other hand, defendant claimed that his wife badgered him about paying bills, hit him shortly after his return from the hospital, and threatened to hurt his injured back.

During the marriage defendant submitted an affidavit to the Illinois Department of Public Health stating that he was the natural father of Letitia and had subsequently married Letitia's mother. Defendant later questioned the validity of the affidavit. He testified that he did not know what he was signing, did not remember doing so, did not recognize his signature, and thought the form was necessary for the child's school registration.

The trial court granted plaintiff separate maintenance and exclusive possession of the marital residence and furniture. Defendant's counterclaim for divorce was dismissed, and he was ordered to pay $25 per week as separate maintenance. No support was ordered for the child, Letitia, because the court found she was presumed to be the child of plaintiff's former husband. Lastly defendant was ordered to pay $850 in attorney's fees and to pay $50 per week in arrearages. Thereupon, defendant appealed and plaintiff cross-appealed.

I.

Defendant first argues that his counterclaim for divorce was improperly denied. As plaintiff's nagging caused extreme embarrassment and her threats of injury rendered life miserable, defendant concludes that both his person and his health were seriously endangered. He contends that his testimony established sufficient grounds for a divorce based on mental cruelty. We disagree.

Mental cruelty is conduct causing embarrassment, humiliation, and anguish so as to render life miserable and unendurable, or to cause a spouse's life, person, or health to become endangered. (McGowan v. McGowan (1st Dist. 1973), 15 Ill.App.3d 913, 914, 305 N.E.2d 261; Quilty v. Quilty (3rd Dist. 1972), 5 Ill.App.3d 801, 803, 284 N.E.2d 690; Woodshank v. Woodshank (3rd Dist. 1971), 2 Ill.App.3d 596, 599, 274 N.E.2d 694; Howison v. Howison (2nd Dist. 1970), 128 Ill.App.2d 377, 382, 262 N.E.2d 1.) To be entitled to a divorce on the ground of mental cruelty, a spouse must also show that the offensive conduct was unprovoked. (Rosenbaum v. Rosenbaum (1st Dist. 1976), 38 Ill.App.3d, 1, 12, 16--18, 349 N.E.2d 73; Murphy v. Murphy (1st Dist. 1975), 31 Ill.App.3d 321, 339, 334 N.E.2d 779; Gregory v. Gregory (2nd Dist. 1974), 24 Ill.App.3d 436, 441, 321 N.E.2d 122.) In examining each case on its own facts, the court will consider the parties' pattern of conduct, their respective emotional makeup, and the circumstances under which the complained of acts occurred. (Surratt v. Surratt (1957), 12 Ill.2d 21, 24, 145 N.E.2d 594; Stanard v. Stanard (3rd Dist. 1969), 108 Ill.App.2d 240, 248, 247 N.E.2d 438.) Further, the conduct which is alleged to constitute extreme and repeated mental cruelty (Ill.Rev.Stat.1973, ch. 40, par. 1) must have been evidenced on at least two separate occasions. See Knox v. Knox (1st Dist. 1975), 31 Ill.App.3d 816, 820, 334 N.E.2d 891; Collinet v. Collinet (1st Dist. 1961), 31 Ill.App.2d 72, 77, 175 N.E.2d 659.

Defendant failed to establish that plaintiff's unprovoked conduct constituted extreme and repeated mental cruelty. That of which he complains occurred in a single episode. In addition, only defendant's testimony points to blameworthyactions by plaintiff and she disputes his claims. Credibility is the key to resolving such conflicting testimony. The trial judge was in the best position to determine the parties' credibility because he observed their demeanor and heard them testify in open court. Under these circumstances, and based on the record of this case, we find no basis to disturb the finding of the trial court. Tuyls v. Tuyls (1961), 21 Ill.2d 192, 195, 171 N.E.2d 779; Hayes v. Hayes (5th Dist. 1969), 117 Ill.App.2d 211, 215, 254 N.E.2d 288.

II.

We also disagree with defendant's contention that the trial court erred by granting plaintiff an award of separate maintenance. The statutory remedy of separate maintenance is available to a wife who, without her fault, is living separate and apart from her husband. (Ill.Rev.Stat.1973, ch. 68, par. 22; Kerbis v. Kerbis (1st Dist. 1976), 38 Ill.App.3d 866, 870, 350 N.E.2d 1.) To be without fault, plaintiff did not have to be wholly blameless (Kerbis, supra; Glover v. Glover (4th Dist. 1971), 132 Ill.App.2d 284, 289, 268 N.E.2d 218); she needed only to refrain from consenting to a mutual separation or from contributing to the disruption of the marriage (Amberson v. Amberson (1932), 349 Ill. 249, 253, 181 N.E. 825; Decker v. Decker (1917), 279 Ill. 300, 304, 116 N.E. 688; Johnson v. Johnson (1888), 125 Ill. 510, 515, 16 N.E. 891). As judged by these rules, plaintiff in the instant case was without fault in living separate and apart from defendant.

Although defendant maintains plaintiff's conduct drove him from the marital home, we note that the evidence was disputed. The conflicting testimony was presented to the trial court for its careful consideration. Upon review of the matter, we are unable to say that the trial court's decree was against the manifest weight of the evidence.

III.

Defendant also urges that the amount awarded for attorney's fees and for support was unnecessary. The well-established principle, however, is that the amount of attorney's fees rests in the sound discretion of the trial judge which will not be interfered with unless abused. (Welsh v. Welsh (1st Dist. 1976), 38 Ill.App.3d 35, 39, 347 N.E.2d 512; Greenbaum v. Greenbaum (1st Dist. 1973), 14 Ill.App.3d 217, 221, 302 N.E.2d 165.) The same rule applies to support awards. (Canady v. Canady (1964), 30 Ill.2d 440, 444, 197 N.E.2d 42; Doyle v. Doyle (1915), 268 Ill. 96, 101, 108 N.E. 796.) Our review of the record persuades us that the trial court properly exercised its discretion in both areas.

In settling upon the amount of support, the court's award reflects examination of the relevant factors: the ages of the parties, their health, their respective property and income, their station in life, the existence of dependent children, and the nature of the alleged misconduct. (Furth v. Furth (1st Dist. 1972), 5 Ill.App.3d 73, 76, 283 N.E.2d 102; Dmitroca v. Dmitroca (2nd Dist. 1967), 79 Ill.App.2d 220, 223, 223 N.E.2d 545; Warren v. Warren (1st Dist. 1973), 40 Ill.App.2d 286, 289, 189 N.E.2d 401.) Equally apparent is the court's consideration of the factors necessary to determine the amount of attorney's fees: skill and standing of the attorney employed, the nature of the cause, and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter; the degree of responsibility involved in the management of the cause; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client. (Neville v. Davinroy (5th Dist. 1976), 41 Ill.App.3d 706, 711, 355 N.E.2d 86.) Although the allowance of such fees is not automatic (McLeod v. McLeod (1st Dist. 1971), 133 Ill.App.2d 111, 113, 272 N.E.2d 834; Berg v. berg (1st Dist. 1967), 85 Ill.App.2d 98, 101, 229 N.E.2d 282), it is not error for a trial judge to rely on the experience he has acquired in the discharge of professional duties as to the value of legal services rendered (Lauzen v. Lauzen (2nd Dist. 1967), 81 Ill.App.2d 472, 475, 225 N.E.2d 427; Richheimer v. Richheimer (1st Dist. 1965), 59 Ill.App.2d 354, 265, 208 N.E.2d 346). In the case at bar, we find no abuse of discretion in the trial court's award of support and attorney's fees.

IV.

Plaintiff, in her cross-appeal, contends that the trial court erred in depriving her of past due installments of temporary support payments. Defendant had been previously ordered to pay $75 per week in temporary support, later reduced to $45 per week. When the permanent support arrangement commenced on April 3, 1975, defendant had paid only $560, thereby accumulating $2,050 in arrearage. The trial court ordered defendant to pay $25 per week in separate maintenance and $690 of arrearage in installments of $50 per week. In arriving at the figure of $690, the court computed the...