Holmstedt v. Holmstedt

• Decision Date: 20 May 1943
• Docket Number: No. 27051.,27051.
• Citation: 383 Ill. 290,49 N.E.2d 25
• Parties: HOLMSTEDT v. HOLMSTEDT.
• Court: Illinois Supreme Court

383 Ill. 290

49 N.E.2d 25

HOLMSTEDT

v.HOLMSTEDT.

No. 27051.

Supreme Court of Illinois.

May 20, 1943.

Suit for separate maintenance by Olga Holmstedt against Hjalmar Holmstedt, wherein defendant filed a counterclaim for divorce on ground of desertion under Smith-Hurd Stats. c. 40, § 1. From an adverse decree, plaintiff appeals.

Reversed and remanded.Appeal from Superior Court, Cook County; Oscar F. Nelson, judge.

Harry Z. & Bernard Perel, of Chicago (Abraham H. Maller, of Chicago, of counsel), for appellant.

Butler & Gilmore, of Chicago (William B. Gilmore, of Chicago, of counsel), for appellee.

THOMPSON, Justice.

Appellant, Olga Holmstedt, filed on December 10, 1940, in the superior court of Cook county, her complaint against her husband, Hjalmar Holmstedt, for divorce, charging him with extreme and repeated cruelty and habitual drunkenness. Defendant filed an answer denying the charges and a counterclaim in which he alleged that the property in which plaintiff resided was purchased and paid for by him, although the title was still in her name. He prayed that plaintiff be restrained from encumbering or selling the real estate described in the counterclaim and for an order to convey the premises to him subject to his wife's dower rights. In her answer to the counterclaim, appellant averred that the real estate involved was purchased both by her and appellee and that title was taken in appellant's name in order to preserve the property. On December 5, 1941, appellant filed her amended complaint in which she alleged the same acts of cruelty and drunkenness as appeared in her complaint for divorce, averred that the real estate described was purchased by both, with the money of both, and that title was taken in her name because of the habits of her husband. In her amended complaint she abandoned her complaint for divorce and changed the relief sought to separate maintenance, and prayed that the real estate be decreed to her as her sole and separate property. Appellee then amended his counterclaim praying for a divorce on the ground of desertion. Appellant filed answer to the counterclaim as amended and appellee's answer to the original complaint was ordered to stand as an answer to the amended complaint.

The court heard evidence and entered a decree dismissing appellant's complaint as amended, granting appellee a divorce on his counterclaim and decreeing that the real estate is the property of both parties jointly, that for her separate support and maintenance it is necessary that she continue in possession of the real estate with the right to retain the rents collected and that she be restrained from encumbering or selling the property. It was further decreed that appellee pay appellant $5 a week for permanent alimony.

Appellant objects to the decree of the circuit court, contending (1) that the court erred in dismissing the amended complaint; (2) that the court erred in failing to enter a decree for separate maintenance; (3) that a decree for divorce should not have been granted on the cross complaint; (4) that there was error in dismissing appellant's amended complaint for want of equity; (5) that a reasonable and adequate sum for appellant's support was not allowed by the decree; and (6) that the court was prejudiced against appellant.

Where a title is directly put in issue by the pleadings a freehold is involved. City of Chicago v. Chicago, B. & Q. R. Co., 319 Ill. 351, 150 N.E. 250;Sanford v. Kane, 127 Ill. 591, 20 N.E. 810. A freehold is involved in a divorce or separate maintenance proceeding where, in settling property rights, the decree takes the title to real estate from one and places it in the other party to the suit. Lewis v. Lewis, 316 Ill. 447, 147 N.E. 411;Young v. Young, 323 Ill. 608, 154 N.E. 405.

Before any evidence was heard the court inquired as to whether or not the cause was a suit for separate maintenance. On being informed that such was the case he asked how long the parties had been separated and when told they had lived apart since December 10, 1940, more than a year, he inquired and was informed that the parties had been married since 1914. He then asked the following questions: ‘Why is she asking for separate maintenance? If she doesn't want to live with him, why not divorce him?’ Counsel for appellant suggested to the court that possibly he might rather not hear the matter. To this suggestion the court replied, ‘I am going to hear it. I have no more prejudice against her than anyone else. The court does not believe it is wise for people living apart to be still married to each other. It does not make for good morality. She does not want him and still does not want to give him his freedom. Go ahead with the case.’

Counsel for appellant argues that the court's apparent bias affected unfavorably his consideration of the evidence offered in support of appellant's claim for separate maintenance. By the enactment of the married women's act of 1867, the legislature conferred upon courts of equity jurisdiction to enforce the common-law duty of the husband to furnish support and maintenance for his wife, upon her application, where she is living separate and apart from him without her fault. Ross v. Ross, 69 Ill. 569. The act creating this equitable remedy has been held valid by this court. Amberson v. Amberson, 349 Ill. 249, 181 N.E. 825. By the present statute (Ill.Rev.Stat.1941, chap. 68, par. 22, p. 1796), the remedy exists in favor of either the wife or husband. The public policy as expressed by legislative acts is not a matter for the courts. Their duty is to apply the law as they find it. Appellant had the right to select her remedy and to have her case heard by an impartial judge. It was the duty of the court as soon as he discerned within his own mind any feeling of opposition to a pronounced public policy of the State such as might prejudice him for or against either party to the litigation, promptly and of his own motion, to disqualify himself and have the case reassigned.

This court has said that the spirit of our laws demands that every case shall be fairly and impartially tried, and no judge should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. People v. Scott, 326 Ill. 327, 157 N.E. 247. No petition for a change of venue was filed and this error of the court in proceeding with the hearing, after expressing his bias against an existing law, did not afford an absolute right in appellant to have a change of venue; nevertheless, this must be considered in connection with a review of the entire record.

In support of her amended complaint for separate maintenance, appellant testified that appellee had been mean to her during the time they had lived together; that he struck her so many times she could not remember them all. On November 28, 1940, and on December 4, 1940, he came home drunk and pinched her arm so that it was black and blue. On the latter occasion he chased her and struck at her and around December 11, 1940, he struck her on the head with his fist. On December 7, of the same year, by reason of his violent conduct, she ran from the house and called the police. She testified there was no provocation on her part for such ill-treatment and that during the time they lived together she treated him the best she could.

As to his habitual drunkenness she testified he would go on long sprees, then would stop and start again; that his sprees would last from six to eight weeks at a time and he would be drunk three or four times a year; that the last time he was drunk before he left her, he was frunk every night for eight weeks; that when in this condition he would use profane language toward her in the presence of their son and that he threatened her life while in such condition; that he always left the house on Saturday nights, not returning until Monday morning. Appellant was corroborated in all her testimony by her twenty-six- year-old son, who testified that his mother treated his father as a good wife should and gave him no reason to molest her or pinch her; that on December 4, 1940, he saw his father come home drunk and that he started fighting with his mother and that he and his mother ran down stairs when appellee picked up a dining-room chair; that he saw appellee strike his mother with his fist and had seen him strike her on many other occasions. The son's testimony was that appellee went on the average of five sprees a year and on a least three occasions he had left appellant of his own accord; that on one occasion he remained away for three or four months. He further testified that he saw appellee strike appellant on November 28, 1940, and that appellant never did strike or attempt to strike appellee; that when appellee went on a spree he did not bring his pay check home and that appellant received the pay check only about half of the time.

Another witness, Mrs. Hildegard Oak, also corroborated appellant and the son. She saw appellee drunk several times and saw him strike appellant with a mop which he took from the witness.

Appellee testified that he was not drunk on November 28, 1940; that he did not pinch appellant nor chase her around the house; that he treated his wife as a good husband should; that he never stayed out all night although he admitted he was out until three o'clock in the morning; that on December 7, 1940, being the date above testified to by his...