Honey v. Honey
| Decision Date | 17 February 1970 |
| Docket Number | 11084,Gen. Nos. 11061 |
| Citation | 256 N.E.2d 121,120 Ill.App.2d 102 |
| Parties | Marie Beatrice HONEY, Plaintiff-Appellee, v. John Perry HONEY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
John Lambright, Danville, for defendant-appellant.
Wright & Young, William A. Young, Danville, for plaintiff-appellee.
Defendant appeals from a decree which granted a divorce to his wife upon the grounds of physical and mental cruelty, and awarded alimony In gross in the sum of $36,500.00. He also appeals from an order awarding temporary alimony in the sum of $50.00 per week pending appeal. The appeal from the latter order was consolidated with the principal appeal.
Plaintiff filed a complaint for separate maintenance on November 18, 1966, alleging that the parties had been living apart since October 4, 1966. On September 5, 1967, the complaint was amended to pray for divorce with allegations purporting to allege mental cruelty, with the further allegations of physical cruelty. A subsequent amendment alleged desertion.
Defendant's motion to the first amended complaint pointed out that the statute constituting mental cruelty as a grounds for divorce was not in effect until July, 1967, after the parties had been separated some nine months. There are no allegations of acts of the quality of mental cruelty during the period of separation. The amendment in question, Ch. 40, § 1, Ill.Rev.Stat.1967, creates a cause of action or substantive right not theretofore existing, and, absent legislative provision to the contrary, should not have a retroactive effect.
The award of divorce however may be sustained upon the evidence of acts of physical cruelty. The defendant argues that a condonation of the cruelty was shown in the record. It has long been the rule that condonation is an affirmative defense which must be pleaded. Lipe v. Lipe, 327 Ill. 39, 158 N.E. 411; Roback v. Roback, 59 Ill.App.2d 222, 207 N.E.2d 130. We find no allegation of condonation in the answer filed by the defendant. In the event the court found credible evidence that defendant had made threats against the plaintiff while defendant was gesticulating with a shotgun. Such conduct is shown in the record to have occurred just prior to the separation of the parties.
The defendant urges that the trial court dismissed plaintiff's count for desertion and that such constituted a finding that the plaintiff had no grounds for leaving home and that, ergo, she is, in fact, guilty of desertion. Upon such premise it is argued that plaintiff is not entitled to a divorce upon the ground of physical cruelty. He cites authorities upon the separate propositions. The chain of logic is pulled apart, however, by the terms of the decree, i.e., that upon the execution of the decree for divorce upon the grounds of cruelty the count for desertion is to be dismissed. Such provision constitutes an administrative disposition of the count when determination of its merits was no longer relevant to the proceedings.
The trial judge announced that he believed that the plaintiff was entitled to one-half of the property accumulated during the marriage as alimony In gross. This was fixed in the sum of $36,500.00.
We conclude that plaintiff's counsel persuaded the court to adopt the wrong standard in determining the award of alimony. The measure of alimony is the need of the wife considered in connection with the ability of the husband to pay. Adams v. Adams, 398 Ill. 581, 76 N.E.2d 495; Chalmers v. Chalmers, 31 Ill.App.2d 1, 175 N.E.2d 613; Still v. Still, 96 Ill.App.2d 320, 238 N.E.2d 613. In Chalmers the court noted that together with the needs and abilities of the party, the court should consider their respective ages, their health and social conditions and whether or not a party was supporting children. The record shows that these factors were not the basis of the award. In...
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