Dunham v. Dunham

• Decision Date: 12 May 1896
• Citation: 44 N.E. 841,162 Ill. 589
• Parties: DUNHAM v. DUNHAM.
• Court: Illinois Supreme Court

162 Ill. 589

44 N.E. 841

DUNHAM

v.DUNHAM.¹

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, First district.

Action for divorce by Ransom W. Dunham against Elizabeth R. Dunham brought in the circuit court of Cook county, and tried before S. P. McConnell, Judge. A decree for complainant was affirmed by the appellate court (57 Ill. App. 475), and defendant appeals. Affirmed.Moran, Kraus & Mayer, for appellant.

Reed, Brown & Allen and G. W. Plummer, for appellee.

This is an appeal from the judgment of the appellate court affirming a decree of the circuit court of Cook county granting to appellee, Ransom W. Dunham, a divorce from appellant, Elizabeth R. Dunham. The parties were married in the city of Philadelphia on December 24, 1889, and a few days thereafter took up their residence in the city of Chicago, where they lived together until December 31, 1892, when appellant left Chicago and the state of Illinois, in company with Arthur W. Allyn, with whom it is alleged in the bill she committed adultery at divers times and places, and went to Canton, in the county of Lincoln, in the state of South Dakota, where she claimed to reside until after she there obtained a decree of divorce from appellee as hereinafter mentioned. On March 25, A. D. 1893, appellee filed in the circuit court of Cook County, Ill., a bill in equity, stating therein his residence in that county for more than two years before that time; his citizenship in this state; his intermarriage with appellant on December 24, 1889; their residence together as man and wife in Chicago until December 31, 1893; charging adultery between appellant and Arthur W. Allyn, in Chicago, on February 23, 1893, and at other former times; alleging appellee's ownership, at the time of the marriage, of certain real estate situate in Cook county; the voluntary conveyance of these premises by appellee to appellant for a homestead on June 15, 1891; the constant use of the conveyed premises by appellant and appellee as a joint homestead after the marriage and until December 31, 1892, and such use by appellee since that time; uncaused and voluntary abandonment of appellee and her home by appellant on that date, and subsequent pretended residence by her in South Dakota; charging, also, appellant with the clandestine disposition of horses and a carriage belonging to appellee, and wrongful claim to a portion of the household furniture belonging to appellee; that appellant secretly and without authority leased the homestead and all furniture therein, with the intention to remove appellee from the possession of said premises, and deprive him of his homestead rights therein; and also charged the assignment to appellant of certain insurance policies on appellee's life, and payment of dues thereon by appellee; the leaving with appellee by appellant of her child by a former husband; a conspiracy between appellant and her paramour, resulting in appellant's secret journey with him to Canton and Sioux Falls, S. D., for the purpose of obtaining a fictitious residence there, and there to secure, or attempt to secure, a divorce from appellee; that on December 31, 1892, in pursuance of a concerted plan between defendant and said Allyn, she voluntarily abandoned orator, left said homestead, and went to Canton and Sioux Falls, in the state of South Dakota, for the purpose of obtaining a residence there, in order to institute proceedings for, and, if possible, obtain a divorce from orator under the laws of said state of South Dakota; ‘and that the said Elizabeth R. Dunham has retained counsel, and has caused a formal complaint for divorce to be drawn, containing false and fictitious charges and allegations of cruelty on the part of your orator; and that said Elizabeth R. Dunham still continues her pretended alleged and assumed residence in the state of South Dakota, although she has at various times since the said 31st day of December, 1892, visited the city of Chicago, county of Cook, and state of Illinois, for short intervals;’ that defendant, on December 31, 1892, went to Canton, S. D., with said Allyn; that while in South Dakota defendant frequently committed adultery with said Allyn between the 1st and 8th days of January, 1893. It is then stated that the homestead was conveyed, and the policies of insurance transferred, to appellant, under the belief on the part of appellee that appellant was and would continue a faithful wife, but that appellant had refused to live with appellee as his wife, had abandoned him, and committed adultery. And the prayer is (1) for a divorce from the bonds of matrimony; (2) for an injunction against defendant to prevent the disposition by her of the homestead or furniture; (3) for the cancellation of the deed of conveyance of the real estate to appellant; (4) for the retransfer to appellee of the life insurance policies; (5) the custody of the child of appellant; (6) for restraining appellant from mortgaging, incumbering, selling, conveying, or leasing sublot 3 in the city of Chicago, and the furniture of complainant, situated therein; in any way interfering with appellee's possession of the homestead premises, and for general relief.

On April 25, 1893, the summons in said cause was personally served upon appellant in the city of Chicago. Thereafter, on May 3, 1893, appellant appeared, and filed her answer in said cause. The answer denies the allegations of adultery, alleges she had been a faithful wife, and states that appellee's conduct towards and treatment of appellant were such as to render it destructive of her happiness and dangerous to her health to continue to live with him as his wife; that in September, 1892, impelled by these causes, appellant ceased to live with appellee as his wife, and on December 31, 1892, she removed to and took up her residence in the state of South Dakota. The answer further states that they came to Chicago on December 31, 1889, and temporarily resided at the Grand Pacific Hotel until May 18, 1890; that she immediately discovered that he was a man of low and vicious habits, and during the first week of their married life he conducted himself in a most violent and loathsome manner; that after leaving said hotel they took up their residence in the said homestead, and defendant continuedto occupy the same from that time until December 31, 1892; that during said time, on two occasions, she left Chicago, and went East, with the avowed intention never to return, owing to the coarse, brutal, and inhuman treatment bestowed upon her by complainant, but that for the sake of her own social position and that of her child she returned each time to complainant; that complainant at all times insisted upon subjecting this defendant to devices and artifices to prevent conception; that defendant refused to submit to them, and in the month of February, 1890, became and was enceinte, but that complainant, in pursuance of his avowed intention never to have children, procured a miscarriage upon her in the latter part of April, 1890, by the use of certain nauseous, noxious, and dangerous drugs, and administered the same to her, and required her to take the same against her will, which this defendant then and there unwillingly did; that complainant insisted upon this course of treatment from time to time, and forced defendant to submit to dangerous practices, and that by reason of the same defendant became sick, her health greatly impaired, and in consequence thereof she has suffered, and still continues to suffer, great bodily pain; that for more than three months before defendant left said homestead, owing to the conduct and treatment of complainant, she refused entirely to cohabit with complainant, although she lived in said homestead ostensibly as his wife. The answer further states: ‘Defendant denies that she voluntarily, on or about December 31, 1892, and without cause, left and abandoned the said homestead premises and the complainant, and that she has since voluntarily absented herself from said premises and the complainant, but, on the contrary thereof, defendant says that she left her said home in which she and the complainant were residing as aforesaid, on the 31st day of December, 1892, because she could no longer continue to live with the complainant as her husband, on account of the inhuman and unnatural conduct and brutal treatment of the complainant towards the defendant; * * * that, driven and forced thereto by the cruelty and brutality of the complainant herein referred to, she was compelled to and did take up on the 31st day of December, 1892, her residence elsewhere, as the complainant persisted in continuing to remain in and reside upon said homestead premises; that it is true that the defendant proceeded on the 31st day of December, 1892, to the state of South Dakota, and that she has since said date resided in said state, and that her home and residence since said time has been, and now is, in said state of South Dakota; that it is not true that the defendant fraudulently or clandestinely, or without the knowledge of the complainant, went to said state of South Dakota, but, on the contrary, as will hereinafter more fully appear, the complainant at the time had full knowledge and notice of the intention of the defendant to so change her residence, and take up her abode in said state of South Dakota; that in 1886, and for a considerable time prior thereto, the defendant was a permanent resident in the state (then territory) of Dakota, where she was living with her husband, George W. Wallace, who shortly thereafter departed this life, and who was the father of Nellie Wallace, the infant referred to in said bill; that on account of the cruel and unnatural conduct of the complainant towards the defendant, and after having endured the same until further endurance was impossible, the defendant, in September, 1892, ceased to live with the complainant as his wife, though she continued to live...