Kerbis v. Kerbis, 60300
| Decision Date | 14 May 1976 |
| Docket Number | No. 60300,60300 |
| Citation | 38 Ill.App.3d 866,350 N.E.2d 1 |
| Court | United States Appellate Court of Illinois |
| Parties | Gertrude KERBIS, Plaintiff-Counter-defendant-Appellant, v. Donald KERBIS, Defendant-Counterplaintiff-Appellee. |
Torshen, Fortes & Eiger, Ltd., Chicago, for appellant; Jerome H. Torshen, Robert A. Skirnick, Maria A. Skirnick, Chicago, of counsel.
Robbins, Coe, Rubinstein & Shafran, Ltd., Chicago, for appellee; Manuel J. Robbins, Emil Shafran, Chicago, of counsel.
Plaintiff appeals from a judgment which dismissed her complaint for separate maintenance and granted a divorce to defendant on grounds of physical cruelty. On appeal she contends that the trial court erred when it (1) denied separate maintenance on the basis that her marriage was irreconcilable, (2) granted defendant's request for divorce despite the manifest weight of evidence which did not establish physical cruelty, and (3) committed several evidentiary rulings which denied her a fair trial.
Plaintiff and defendant were married in Acapulco, Mexico, on August 23, 1961. From the time of their marriage until their separation the parties lived in Chicago. One child, Kim, was born to the parties on May 18, 1963. A second child, Julian, was adopted by the parties and had reached majority at the time of these proceedings. Defendant's child by a previous marriage, Lisa, had been residing with the parties since the inception of the marriage.
The following evidence pertinent to this appeal was adduced at trial.
For plaintiff
Gertrude Kerbis on her own behalf
Defendant, a professional tennis instructor at a summer camp in Watervliet, Michigan, and at a tennis club in Highland Park, did not return to the marital home after the summer season in September, 1970. At a family Thanksgiving dinner in 1970, which defendant attended, she made a toast to togetherness. Defendant left immediately after the dinner. He stated that he intended to live a divorced life. Around Christmas that same year, she offered to look for a family residence on the North Shore closer to his tennis club, but defendant rejected her offer. Defendant always had access to their apartment.
In May, 1971, she observed defendant leave the apartment of Eileen Kaplan at about 2:30 A.M.
In June, 1972, at about 7:00 A.M., she looked through some windows in the master bedroom at their house in the tennis camp and observed defendant lying nude in bed with a Mrs. Goldblatt. She attempted to serve a subpoena on Mrs. Goldblatt, but defendant stopped her and forced her to leave the camp.
She denied ever calling her husband at the camp and threatening to throw his clothes into the hallway of their apartment building.
Defendant did not attempt a reconciliation on January 20, 1971. She denied breaking his finger on that night and hitting him with a chair. Defendant did attempt to strike her and when she ducked his hand crashed into the wall.
On February 6, 1971, she returned home from a party and found defendant moving items from the house. A dispute followed and defendant broke down the hallway door. She called the police and defendant She admitted having a conversation with Ronald Barnard, an attorney, regarding defendant's visitation rights with their daughters.
was arrested. She denied tearing his coat or striking him.
Defendant hired him in May, 1972, to work at the tennis camp and also to do work at the Winnetka home of Mrs. Goldblatt. One evening while he was painting the upstairs bathroom next to Mrs. Goldblatt's bedroom, defendant arrived. He saw Mrs. Goldblatt enter the bedroom. He was lying on the couch in the morning when he heard defendant leave the house. Mrs. Goldblatt also lived with defendant at the tennis camp in Michigan. He admitted that defendant fired him after several disagreements.
He was a private investigator hired by plaintiff. On May 16, 1971, he observed defendant and Eileen Kaplan enter her apartment. After plaintiff confronted defendant at the apartment door, defendant left with his hair and clothes in a disheveled condition.
Eileen Kaplan under section 60
She attended a movie with defendant sometime after her divorce in February, 1970. She recalled private detectives knocking on her apartment door at about 1:00 A.M. on one occasion when defendant was present.
Defendant Donald Kerbis under section 60
He currently resides at an apartment in Highland Park under a two year lease although his legal address is in Watervliet, Michigan, and he has a Michigan driver's license. He has also lived in Glencoe and at the tennis camp since September, 1970. He is not presently willing to live with plaintiff.
He attempted many reconciliations, but plaintiff would not reconcile.
On May 18, 1971, he had dinner with Eileen Kaplan and later returned to her apartment to watch television. He left around midnight because his spring classes began early the next day.
For defendant
She is the executive housekeeper at the tennis camp. The windows in the master bedroom are eight feet from the ground and are usually covered by drappery. The three bedrooms were separately occupied by Ernesto Aquaire, by Mrs. Goldblatt, and by defendant.
On cross-examination, she admitted that she never entered the house before 8:00 in the morning and she did not clean the house during the camp season.
Defendant Donald Kerbis on his own behalf
He separated from his wife on July 17, 1970. On that date, she left the tennis camp after an argument and later advised him that she had thrown his clothes into the hallway of their Chicago apartment and intended to divorce him. Although he flew into Chicago from the camp to attempt a reconciliation, plaintiff refused.
On September 10, 1971, plaintiff kicked, scratched and threw a knife at him.
He attempted a reconciliation after the family's Thanksgiving dinner in 1970, but plaintiff again kicked, scratched and threw a knife at him.
On January 20, 1971, plaintiff hit him over the head with a telephone book and a chair.
Defendant offered an exhibit purporting to be an admittance slip to the emergency room of Augustana Hospital on January 20, 1971. He stated that he signed the slip and that the slip showed On February 6, 1971, plaintiff again kicked and scratched him and also tore his new overcoat. He was arrested after he broke the lock on the apartment door in order to retrieve his car keys.
he was admitted for a fractured finger. Plaintiff specifically objected to the admission of the slip on the grounds that the exhibit was a carbon copy and that the writing of the word 'finger' on the slip did not correspond with the rest of the slip. The trial court allowed the exhibit into evidence.
He denied ever having sexual relations with Eileen Kaplan or Mrs. Goldblatt. He never occupied the same bedroom with Mrs. Goldblatt, in fact, her mother was staying with Mrs. Goldblatt on the day plaintiff attempted to serve the subpoena.
He recalled the confrontation with the private detective at Eileen Kaplan's apartment, but stated that he left her apartment before midnight on that date.
Although he is over six feet tall and weighs 180 pounds, he was not in good physical health as a result of many accidents. He still teaches tennis and is able to move around the tennis court.
During their fight on January 20, 1971, he was unable to restrain his wife from beating him with the telephone book and chair. However, he was able to take a knife which she was threatening him with away from her.
Except for the broken finger, he never saw a doctor for any of the marks and bruises he sustained. He later recalled seeing a doctor after being struck over the head.
She drove plaintiff to the tennis camp in July, 1970. After a dispute, plaintiff announced that she was leaving the camp and intended to divorce defendant.
On cross-examination, she admitted knowing defendant prior to meeting plaintiff.
Eugene Lempp for plaintiff on rebuttal
He is plaintiff's father. Although he was present, he did not hear any argument between plaintiff and defendant after the family's Thanksgiving dinner in 1970.
Plaintiff Gertrude Kerbis on rebuttal
She denied striking defendant, throwing a knife at him, or knowing of a broken finger. The purpose of the two letters from her attorney was to threaten defendant with a divorce. She left the tennis camp in July, 1970, because she was ill.
Following closing arguments by both parties, the trial judge announced his decision in open court finding, Inter alia, that
'The Court has first taken the idea of not giving anybody separate maintenance because separate maintenance in the Court's opinion, is where there is a hope of reconciliation * * *.
After hearing all the testimony, the Court has decided it cannot enter a decree of separate maintenance because that would be of no avail in my opinion. It would serve no purpose. And from the testimony of both lawyers, this marriage is through. It is over with.
My reason for separate maintenance is not the differences between the people, but more or less that the question has been asked and answered, was that was there a chance or a hope of reconciliation, and the answer was no, on both sides.
They have to settle their differences and this is why I feel a divorce is the
only possible alternative in this situation.'
OPINIONPlaintiff first contends that the trial court erred when it denied separate maintenance on the basis that her marriage was irreconcilable. The statutory remedy of separate maintenance is available to a wife who, without her fault, is living separate and apart from her husband. (Ill.Rev.Stat. 1975, ch. 68, par. 22; Shapiro v. Shapiro, 113 Ill.App.2d 374, 252 N.E.2d 93.) In the instant case, the trial judge unequivocally stated his reasons for dismissing plaintiff's complaint. We believe that the trial court erred when it applied a rationale that was clearly beyond the...
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... ... , Cleary & Graham's Handbook of Illinois Evidence § 1001.1, at 743 (5th ed.1990); see Kerbis v. Kerbis (1976), 38 Ill.App.3d 866, 872, 350 N.E.2d 1 (party's objection to admission of slip of ... ...
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