Johnson v. Johnson

• Decision Date: 13 January 1943
• Docket Number: No. 26724.,26724.
• Citation: 45 N.E.2d 625,381 Ill. 362
• Parties: JOHNSON v. JOHNSON.
• Court: Illinois Supreme Court

381 Ill. 362

45 N.E.2d 625

JOHNSON

v.JOHNSON.

No. 26724.

Supreme Court of Illinois.

Nov. 17, 1942.

Rehearing Denied Jan. 13, 1943.

Suit for divorce by E. R. Johnson against Virginia Johnson, on ground of desertion. From a decree in favor of the plaintiff, the defendant appealed to the Appellate Court. From a judgment of the Appellate Court, 313 Ill.App. 193, 39 N.E.2d 389, affirming the decree, the defendant appeals.

Judgment of the Appellate Court and decree of the Circuit Court reversed, and cause remanded to Circuit Court for new trial.Appeal from Appellate Court, Second Division, on Appeal from Circuit Court, Winnebago County; William L. Pierce, Judge.

William D. Knight, of Rockford, for appellant.

Hall & Hall, of Rockford, for appellee.

WILSON, Justice.

Plaintiff, E. R. Johnson, October 21, 1940, filed his complaint in the circuit court of Winnebago county, praying for a divorce from defendant, Virginia Johnson, on the ground of desertion. Summons was served upon defendant, together with a certified copy of the complaint, in Hampton, Virginia, where defendant resided. She filed her special appearance and motion to dismiss on the ground of lack of jurisdiction. Upon denial of her motion and pursuant to order of court she filed her answer. She denied plaintiff was a resident of Illinois and that the court had jurisdiction of the cause, admitted the marriage and that there were two children of the marriage, and denied desertion. Plaintiff's motion to strike the answer was overruled. A decree was entered April 4, 1941. The court found it had jurisdiction of the parties and subject matter; that plaintiff was an actual resident of the county of Winnebago and State of Illinois; that the parties were married June 21, 1918; that defendant wilfully deserted plaintiff in the month of September, 1931, and that such wilful desertion continued until the time of the hearing. Conformably to leave granted, defendant appeals from the judgment of the Appellate Court affirming the decree. 313 Ill.App. 193, 39 N.E.2d 389.

Plaintiff, a commander in the United States Navy, testified he was born in Rockford, graduated from high school there in 1913 and, in 1914, received his appointment to the Naval Academy, and that he has been in the naval service ever since. He testified his duties required him to be stationed wherever ordered by the naval authorities. He explained that during peacetime routine officers can generally expect alternately a three-year tour of sea duty, followed by a tour of shore duty lasting two years. His testimony discloses that the only times he and his wife lived together during their married life were the following: From September, 1919, until February 1, 1920, in an apartment in Philadelphia while he was stationed at the navy yard; from September, 1923, until June, 1924, in Annapolis, while he attended post-graduate school; in 1925, when they spent his month's leave at his parents' home in Rockford, and from May, 1929, until May, 1930, in Norfolk during his assignment to the navy yard. He also testified that from 1925 until 1928, while he was at sea on the U. S. S. Richmond, it was agreed she was to remain in Hampton. From February, 1920, until June, 1920, and from September, 1921, until February, 1922, while he was stationed at Constantinople and Vladivostok, respectively, naval officers had been advised to leave their families home, because of conditions there and possible danger to life and health. Two instances were related by him wherein he claimed his wife failed to join him, one in June, 1921, when he wrote her from Constantinople to meet him in Manila. However, he was transferred to Vladivostok, from which point he wrote rescinding his previous request because his ship was scheduled to sail to the United States via Manila. Upon arrival at Manila his itinerary was altered, and he was ordered to the Orient. Thereupon, he again revised his instructions, and requested her to meet him at Manila. He also advised her that the U. S. S. Henderson, a navy transport, would leave Hampton Roads, some time in May, 1922. She wrote stating she could not leave. She also failed to meet him in San Francisco August 1, 1923, pursuant to his previous request mailed from China, in May, 1923.

Plaintiff further testified that upon detachment from the U. S. S. Richmond, in October, 1928, he was ordered to shore duty in the Norfolk navy yard, located about thirty-five or forty miles from Hampton. Defendant remained in Hampton, where he visited her weekly for six months, each time remonstrating with her for not moving to Norfolk. Finally, in May, 1929, upon her refusal to accompany him, he declared, ‘I won't be coming over here any more,’ and returned to Norfolk. The following Saturday he left their automobile and keys at her home and returned to Norfolk without seeing her. She telephoned the next day stating she had changed her mind. She went to Norfolk and they selected an apartment, purchased furniture, and lived together, as previously stated, from May, 1929, until May, 1930.

In May, 1930, pursuant to previous discussions with his wife, he sought and received an assignment to the U. S. S. Lexington, with the Pacific Fleet, based at Long Beach, California. Inasmuch as they were then expecting the arrival of their second child, his wife deemed it inadvisable to accompanyhim, but promised to join him later in California. Finally, he testified, he acceded to her request to remain in Hampton until the child was one year old. They left their apartment in Norfolk about the middle of May, 1930. His wife returned to Hampton. The household goods were, at his direction, conveyed there by a navy moving van. From May to June he often visited his wife, and wrote her upon his arrival in California and at frequent intervals thereafter. He remained there three years. The first child, Joseph, was born in July, 1924; the second child, Patricia, in July, 1930, shortly after his departure for California. He further testified that when the second child was a year old he communicated with his wife about coming to California; that she answered stating her willingness to join him, whereupon he wrote asking the exact date, so that he could request transportation for her and their household effects; that in September, 1931, three months later, he received a reply stating that she did not want to go to California; that he again wrote her, reminding her of her previous promise, stating he could compel her to join him but would not do so, and asking her to advise him when she charged her mind, declaring that if she came it must be only under the condition she was ready and willing to leave her parents permanently and to establish their home wherever he was stationed; that in about a month he received her reply, stating that a doctor had told her the second year of a child's life was delicate, dangerous and important, and that she deemed it inadvisable to leave her home and her parents, because of their age, also because of her fear of traveling alone, of the child becoming ill, and of living alone in California when he was at sea.

Plaintiff further testified that the first year of their marriage he made an allotment to her to $150 per month. The testimony also shows this allotment was increased in 1930 to $200 a month. He stated he did not further correspond with his wife except that he notified her in June, 1933, of his shore-duty appointment in San Francisco and gave her his official address. In January, 1934, she wrote evincing a desire to visit him for several weeks with her two sisters and the children. His reply thereto stated he would be delighted to have her come to San Francisco to live with him permanently in their own home but under no other conditions. He said he received no answer.

On cross-examination, plaintiff testified that on his transfer to duty in Washington, D. C., in 1938, he gave his wife his official address; that at this time his boy was fourteen years old; that he had not seen him for eight years and had never seen his daughter, and that from the time he returned to Washington he never went to Hampton, about 200 miles away, to see his son, daughter or wife. He also testified as to an occurrence in Washington in July of 1939. Upon answering a telephone call he heard a child's voice say: ‘Daddy.’ Plaintiff testified, ‘I hung up the receiver. I suspected the call was from my daughter. I did not learn that it was from anybody. I had never seen that daughter * * * at the time of that call.’ Shortly thereafter, the telephone operator called again, informing him of a long distance call from Hampton, and he told the operator, ‘I don't want to receive any calls from Hampton.’ He testified that later the same month his wife and two children came to the University Club in Washington. He denied that on this occasion defendant had stated to him, ‘I am here to ask you again to make a home for us.’ Plaintiff further testified that after mailing the letter, identified as defendant's exhibit 6, dated October 10, 1939, he had retained two lawyers, Morrison and Howder, in Washington to represent him. He admitted he was present in Washington at a meeting attended by his wife, Morrison, Howder and one Kearney, and that ‘at that conference Mrs. Johnson was asked by my counsel to start action for divorce against me, that was after this letter * * * was written, that was after all the claimed acts of desertion which have been testified to here today and after the claimed refusals to come and live with me.’ He also testified that in his letter of October 10 to defendant, in which he asked her to procure a divorce, he did not claim that she had deserted him or had refused to live with him; that he did not so claim, nor did anyone so claim for him at the meeting in Washington when he was represented by the two lawyers; that the first time he had ever officially claimed, since June, 1918, that his wife had deserted or refused to...