Decker v. Decker

• Decision Date: 21 June 1917
• Docket Number: No. 11052.,11052.
• Citation: 116 N.E. 688,279 Ill. 300
• Parties: DECKER v. DECKER.
• Court: Illinois Supreme Court

279 Ill. 300

116 N.E. 688

DECKER

v.DECKER.

No. 11052.

Supreme Court of Illinois.

June 21, 1917.

Appeal from Circuit Court, Wabash County; J. C. Eagleton, Judge.

Suit by Libbie T. Decker against James H. Decker. From a decree, plaintiff appeals. Reversed in part and remanded, with directions.P. J. Kolb and M. J. White, both of Mt. Carmel, for appellant.

E. B. Green and Theodore G. Risley, both of Mt. Carmel, for appellee.

DUNCAN, J.

Appellant, Libbie T. Decker, filed her bill in the circuit court of Wabash county alleging that she is the only child and heir of George T. and Eunice Bedell, both of whom died intestate, and that appellee, James H. Decker, is her husband; that she inherited certain real estate from her parents described in her bill and situated in the city of Mt. Carmel, in the said county, including the Star Theater building; that no administration was had on the estates of her deceased parents, and that after their death she intrusted all of her business affairs to appellee, and that he had the sole and absolute control and management of her said property from 1902 until February, 1915; that on June 15, 1914, appellee, as her agent, sold to the United States for a post office site in Mt. Carmel inlot 481, one of her said pieces of property, for the sum of $20,000, which she intrusted to him to loan for her; that he appropriated large sums thereof to himself and invested other large sums thereof in his own name, with investments are specifically described in the bill, and that he paid off a mortgage of $1,000 on one of his own lots and paid other debts owed by himself; that he has converted all of said sum to his use except $4,100 in bank stock invested in her name and about $2,300 invested in automobiles, a diamond ring and some musical instruments, which are her property, and that he refused to transfer any of said investments in his name to her or to account to her for the remainder of the money. She further charged that about February, 1915, he began course of oppressive and unbearable conduct toward her and demanded of her that she convey to him large portions of her property for the fraudulent purpose of possessing himself thereof; that on July 20, 1915, he falsely and fraudulently represented to her that if she would convey to him the portion of inlots 479 and 219 known as the Star Theater building he would discontinue his ill treatment of her and demean himself towards her as a kind husband, as he had done for many years before, and that if she refused so to do he would persist in his misconduct toward her; that she, relying on his promises and being induced by threats and duress, executed a deed to said property to him without consideration, and that on August 4, 1915, he caused the same to be recorded; that on October 17, 1915, he abandoned her without fault on her part and that she believes she has a just cause for divorce against him; that said deed is void and the record thereof should be expunged as a cloud on her title; and that the securities and stocks purchased with her money and taken in his name should be declared hers, and that she should be paid whatever sum may be found due her upon an accounting, for all of which she prayed in her bill. The bill was later amended by the further allegations that he has continued to absent himself from her and has wholly abandoned her without any reasonable cause; that he is the owner of certain property, and is physically able to support himself and her, and is living separate and apart from her without her fault, and has failed to support her, and prays for separate maintenance.

Appellee by his answer admitted many of the allegations of the bill, including the receipt of the said sum of $20,000 of appellant's money for the post office site, but denied that he converted any of it to his own use without her consent; admitted that he purchased seven shares of bank stock for $1,400 with said funds, but averred that they were taken in his name by agreement of the parties; denied that he paid off a $1,000 mortgage on his property out of said funds, that he was living separate and apart from her without her fault or that he fraudulently obtained said deed; charged that appellant drove him from their home by her unbecoming conduct, which he could no longer endure and which rendered him miserable; that he is 62 years of age and that she is 59; that he is not an able-bodied man and is unable to earn a support for himself and her, and has no sufficient income to support himself comfortably; that appellant has received and is receiving an income from more than $50,000 worth of property paid for with money belonging to appellee and the accumulations during a long period of years; that he contributed money to the business of the Bedell estates for 13 years, for which he received no compensation, a reasonable compensation for which would be $15,000, and that the consideration of the deed to him by her to the Star Theater building was the money he had in the Bedell estates and the compensation due him for services. He then set out in his answer specific charges of misconduct on her part and a detailed account of what had been done by him with the $20,000 he received for the sale of the post office site.

The court heard evidence on the issues thus formed, and by stipulation of the parties heard evidence as to the ownership of an amberola claimed by both parties and replevined by appellee from appellant in a separate suit. The decree held appellee to account for said $20,000, and he received credits for the sum of $9,850.88 for taxes, special assessments, attorney's fee, abstracter's fee, for surgical operations paid by him and for several investments made for her, and also including $1,435 for seven shares of bank stock of the First National Bank of Mt. Carmel purchased in his name and for $4,150 in bank stock taken in her name. By the decree he was charged and directed to pay her $5,049.12 in money, and to transfer to her a $3,600 note signed by P. J. Kolb, and three Lescher & Wilkins notes, amounting to $1,500, and the $5,049.12 was made a lien on the Star Theater building. The court also awarded to him the amberola, and found the deed to the Star Theater building to be a valid conveyance, and refused to set aside the same, and denied the claim of appellant for specific alimony.

It is necessary to a proper decision of the issues on this appeal to first determine whether or not appellant has sustained her claim for separate maintenance. To maintain such a bill by a wife against her husband she must show not only that she had good cause for living separate and apart from her husband, but also that such living apart was without fault on her part. Such fault, within the meaning of the statute, is a voluntary consenting by her to a separation, or such failure of duty or misconduct on her part as materially contributed to a disruption of the marital relation. Johnson v. Johnson, 125 Ill. 510, 16 N. E. 891.

The record discloses that appellant and appellee had lived together for some 30 years as husband and wife, and that they have no children. He was a model husband and she an exemplary and affectionate wife until their disagreement in June, 1914, over their property, and which was renewed in 1915 while a Mrs. Biddle was a guest in their home. One evening the three were sitting in a room in the Decker home and Mrs. Decker was playing a player piano. She saw reflected in the polished surface of the piano some gestures made by her husband towards Mrs. Biddle which she interpreted as intended long-destance embraces.Appellee was sitting in one corner of the room and Mrs. Biddle was in another corner. Shortly thereafter, in the presence of Mrs. Biddle, appellant related to appellee what she had seen by the reflections from the polished surface of the piano, and it appears from her testimony that he made no denial or explanation of the incident at that time or thereafter until the trial. At the trial both he and Mrs. Biddle testified that the gestures had reference to a walk the three were accustomed to take of evenings; that appellee pointed first to Mrs. Biddle, then to Mrs. Decker, then to himself, and motioned toward the route usually taken by them when they went on their usual evening walk; and that both he and Mrs. Biddle so understood the gestures. He testified that he told appellant why the gestures were made, and explained to her that he was motioning and indicating that they should take a walk. He also testified that after that appellant was very jealous of him and would watch him from the window as he went up town; that if he met and talked to men she would ask what they talked about, and if he met and talked to a woman she would ask him if they were talking secrets and if he was meeting her; that she was constantly nagging him and making him miserable; that she would get angry at him, and if his answers were not what she thought they ought to be she would call him a ‘damned old liar,’ or would say, ‘Have you not got any sense?’ or ‘You have no sense,’ and kept that up all the time until he left home.

Appellant testified that the first trouble that arose between her and her husband occurred in the early part of February, 1915, and that it was about his attentions to Mrs. Biddle. Appellant thought he cared too much for Mrs. Biddle, and that he never treated her right, as he had before that, after she told him what she had seen in the reflections of the piano; that thereafter he refused to go with her to meals at the place they boarded and was away from home at nights a great deal, and that before that he was never ...