Hoffman v. Hoffman

• Decision Date: 11 April 1925
• Docket Number: No. 16133.,16133.
• Citation: 147 N.E. 110,316 Ill. 204
• Parties: HOFFMAN v. HOFFMAN.
• Court: Illinois Supreme Court

316 Ill. 204

147 N.E. 110

HOFFMAN

v.HOFFMAN.

No. 16133.

Supreme Court of Illinois.

Feb. 17, 1925.

Rehearing Denied April 11, 1925.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Winnebago County; Robert K. Welsh, Judge.

Bill for separate maintenance by Lydia Hoffman against George R. S. Hoffman. To review a decree of the Appellate Court affirming a decree for complainant and an order for alimony and solicitor's fees pendente lite, defendant brings certiorari.

Decree reversed, and order for alimony and solicitor's fees affirmed.

Roy F. Hall, E. D. Reynolds, and Morris J. Hinchcliff, all of Rockford, for plaintiff in error.

Fisher, North, Linscott & Gibboney, of Rockford, for defendant in error.

STONE, J.

This cause comes on certiorari from the Appellate Court for the Second District to review the affirmance of a decree of the circuit court of Winnebago county granting separate maintenance to defendant in error. The bill was filed on November 14, 1922. The decree entered April 6, 1923, required plaintiff in error to pay the sum of $75 per month, beginning April 15, 1923, and the sum of $200 solicitors' fees. An additional order was on June 30, 1923, entered, requiring that plaintiff in error pay the sum of $75 per month as alimony pendente lite, and $250 as solicitors' fees by reason of the appeal of plaintiff in error. The only questions involved in the case are whether the evidence justified the decree for separate maintenance and the propriety of the allowance of the solicitors' fees.

It appears from the bill and the evidence in the case that plaintiff in error is a man 74 years of age and defendant in error is 53; that they were married in November, 1921; and that defendant in error left plaintiff in error in February, 1922, and filed a bill for separate maintenance against him, alleging that he is a man of ungovernable temper, that he had assaulted and beaten her and had used vile language toward her, and that he had so conducted himself toward her as to render further living with him impossible. A hearing was had on the bill on June 27, 1922. After considering the evidence, the chancellor found the charges were not sustained and dismissed the bill for want of equity.

The amended bill alleges that in the month of June, 1922, complainant went to the home of defendant in good faith and with full intention on her part to do her duty toward him as his wife and refrain from any conduct on her part of which he could justly complain, and advised him that she was ready and desirous of resuming her position in his home as his wife and in all respects to fully conduct herself as such wife; that she remained there a brief time, during which time defendant refused to recognize or speak to her or make suitable or proper provision for her support and maintenance; that thereafter defendant leased the home to tenants. The bill also sets out that she in the month of September went to defendant in good faith with the desire to live in and occupy his home as his wife and so told him; that he refused to permit her to do so.

Plaintiff in error's answer denied that any visit made by complainant was made in good faith and with an intent on her part to do her duty toward him and atone for past mistakes, or that she was desirous of resuming her position in his home; denied that she conducted herself during that time in a dutiful and proper manner; avers that on the day the bill for separate maintenance was dismissed by the court complainant went to his home without previous notice of her intention and broke in the door and without his sanction or request went to a room in the house where she remained overnight, and that she left the following day; that she had never at any other time come to his home or offered to bring back the things she had taken away and gave no indication that she desired to be forgiven for her former conduct. The answer denies that the visit was in good faith, but avers that it was made in bad faith, solely for the purpose of laying a foundation and basis for instituting further proceedings against him, and that there was no effort on her part for reconciliation, but simply a scheme to deceive and to institute further court proceedings; that defendant was greatly humiliated and chagrined and suffered mentally and physically by complainant's former suit and her attitude toward him in bringing the same and swearing falsely against him, and also in carrying away certain articles and keepsakes belonging to him of his personal property and household goods; denied that she in September came to him in good faith with a desire to live with him, but that she did so simply for the purpose of laying ground for another lawsuit.

On the hearing defendant in error testified that on the evening of June 27, 1922, about 1 1/2 hours after the dismissal of her suit for separate maintenance, she went to the home of plaintiff in error and entered the house by a key which she had retained when she left in February, 1922; that plaintiff in error was not at home when she arrived, but came in about 11 o'clock in the evening; that she had retired in a room different from that which they had used when living together; that when he came into the house he looked into the room and she said, ‘Hello, George! I have come back;’ that he said nothing; that she then said: ‘I have come back to live with you, George. I have come back, and I want to get along if we can.’ That he made no answer; that he went to his room and closed the door; that the next morning when he was getting ready to leave she went downstairs and said, ‘George, can I order some groceries?’ That he just looked at her and said nothing; that she said, ‘Can't we talk this over? I want to do the right thing and live with you as your wife,’ but that he kept on going and left the house; that she left the house that day; that she saw the plaintiff in error again at his place of business in the month of September, 1922. She at first stated that she was advised by her attorney that plaintiff in error wanted to see her; afterwards, however, she testified that plaintiff in error did not know of her visit on that day until she arrived; that Carl J. Mohr went with her from the office of her counsel, and that when she arrived she said, ‘George, I have come to speak to you, and I would like to go back to you and live with you as your wife and try to get along;’ that he said, ‘No! No! No!’ that she repeated the statement and he made the same reply; that he also said: ‘Well, I won't speak to you now; I am busy. You come to-night at 7:30, and come alone.’ That he asked if Mohr was a relative of hers, and Mohr said he was not; that she went back at 7:30 and had further conversation with him and again asked him to take her back, stating that the fact that she had offered to come back ought to prove that she was sorry for what happened; that he said he did not think there was any chance for reconciliation; that he had leased the home for two years; that he intended to get a divorce but would not give his final answer that night; that he would call her up later; that on the following Tuesday he called her up and told her to come down for his final answer; that he said he had two propositions to make; that one was, that she should go to work and he would help her to find work, and that she must go to church, and after a year from April, if she had done what he asked her to do, he would talk with her about coming back; that his other proposition was that if she would consent to a divorce he would give her $100; that she said, ‘Good night, Mr. Hoffman,’ and left. On cross-examination she stated that she went with Mohr on advice of her counsel when she visited plaintiff in error on September 21. She testified that she did not call him on the telephone after June 27 and had never stated to any one that she was sorry for the trouble she had brought to his home; that she had called on her lawyer the day of her visit to plaintiff in error on September 21 because her lawyer was to see plaintiff in error's lawyer to see what he would do for her.

Defendant in error called Carl J. Mohr, an attorney of Rockford, who testified that he went with her to the printing office of plaintiff in error some time in the fall of 1922; that he thought it was November, because both he and Mrs. Hoffman had their winter coats on; that they were in plaintiff in error's office about six minutes; that she said: ‘George, I want to speak to you a moment; I want to come back.’ That she repeated the words, ‘George, I want to come back,’ and he said, ‘No! No! No!’ That that was all that was said; that he left the office with defendant in error. He testified also that he was one of the firm of attorneys who were counsel for defendant in error; that he thought the visit to plaintiff in error was prior to November 14, the day of the filing of this suit, though he did not know.

Flora Martell was called by defendant in error and testified to a telephone conversation with plaintiff in error on November 14, about 2 o'clock in the afternoon; that he called for Mrs. Hoffman, who was away for the day; that she was staying at the house of the witness; that he, on finding that she was not there, gave a message to the witness, telling her it would be impossible to have an interview that night, as was planned; that it would be useless to...