Lemon v. Lemon

• Decision Date: 21 May 1958
• Docket Number: No. 34620,34620
• Citation: 150 N.E.2d 608,14 Ill.2d 15
• Parties: Sarah M. LEMON, Appellant, v. James G. LEMON, Appellee.
• Court: Illinois Supreme Court

Page 608

150 N.E.2d 608

14 Ill.2d 15

Sarah M. LEMON, Appellant, v. James G. LEMON, Appellee.

No. 34620.

Supreme Court of Illinois.

May 21, 1958.

Euclid Louis Taylor and Howard T. Savage, Chicago, for appellant.

Edward B. Toles and Sidney A. Jones, Jr., Chicago, for appellee.

DAILY, Justice.

On August 28, 1956, the plaintiff, Sarah M. Lemon, filed complaint in the superior court of Cook County for separate maintenance against her husband, James G. Lemon, alleging both desertion and cruelty upon the latter's part. The defendant answered by denying the material allegations thereof and then counterclaimed for divorce on the ground of cruelty. The complaint was subsequently amended to one of divorce, and on May 13, 1957, the countercomplaint was likewise amended so as to charge plaintiff with constructive desertion since January 8, 1956. The cause was tried without a jury upon these issues and, after hearing, the court found for the defendant, dismissed the plaintiff's complaint, and granted a divorce to the husband upon his counterclaim. The decree awarded plaintiff the custody of their two minor children; granted her the household furniture and the right to occupy the family domicile with the children without payment of rent; required defendant to pay all taxes and fuel bills for these premises and to also pay to plaintiff the sum of $50 per week as alimony and child support; stated that the husband should furnish necessary child medical care and pay plaintiff's attorney fees and costs, and ordered plaintiff to convey to defendant all interest which she held as his joint tenant of three Chicago properties. A freehold being involved, direct appeal has been taken by plaintiff to this court to review the granting of said divorce.

While the cause was pending in this court, the defendant filed a motion in the nature of a plea of release of errors. This motion, which was taken with the case, alleges that plaintiff waived her right to appeal by accepting the benefits of said decree, in that she had taken the $50 alimony and child support payments subsequent to the divorce, used the household furnishings granted to her by said decree, occupied the home premises without cost, accepted payment of her attorney fees in the amount specified by the court, and benefited from the transcript of proceedings purchased by the defendant. We find this contention to be without merit. It is true that as a general rule a litigant cannot attack a decree whose benefits he has previously enjoyed, especially if to do so would place the opposing party at a distinct disadvantage upon reversal of the decision (Reinken v. Reinken, 351 Ill. 409, 184 N.E. 639; Holt v. Reid, 46 Ill. 181), and in Boylan v. Boylan, 349 Ill. 471, 182 N.E. 614, we held that the voluntary acceptance of attorney fees in accordance with the divorce decree operated as a bar to the wife's appeal. However, this is not the present situation. Here the attorney fees were not received by plaintiff, as was true in the Boylan case, but were paid by defendant directly to her trial counsel some four months after the judgment was rendered and one month after the record conclusively showed the substitution of new counsel for the plaintiff. Since the attorneys were no longer retained by plaintiff at the date of payment, their acceptance of fees could in no way prejudice her right to appeal. It must also be remembered that at the time the decree was entered, plaintiff was living in the family domicile with two small children and was using the furniture which had for many years been located therein. Because of her parental responsibilities, plaintiff was unable to work but supported the children with money which defendant had furnished from the inception of their separation. The divorce in no way altered the husband's obligation to support his children and subsequent contributions therefor could in no manner place him at a legal disadvantage. By continuing to occupy the premises with the children, receive the weekly payments, and use the furniture, the plaintiff was doing no more than she had done during the months of litigation, and there is no showing but what such amounts were accepted, not as alimony, but as child support. Since it has not been established that she was personally benefited from the decretal payments, the motion to bar this appeal is accordingly denied.

The evidence presented upon trial of this cause is highly conflicting. Sarah Lemon testified that since their marriage in 1950, she and her husband have resided in Chicago. They have two children. According to her account, she and the defendant started having serious marital difficulties in September, 1955, when he beat her without cause on three separate occasions. Although she filed suit for divorce at that time, the matter was subsequently dismissed. The parties continued to live together until January 8, 1956, at which time defendant, again without cause, announced he was leaving. Plaintiff swore that although she begged him to stay, defendant moved to the home of a friend, caustioning her, however, to keep the separation secret. Defendant at that time allegedly told her that he would continue to support his family, share the family automobile with her, and entertain her socially to preserve the marital appearance. Plaintiff also said that around February 8, 1956, her husband became ill and returned home to convalesce, whereupon she fixed his meals, gave him his medicine, and generally nursed him back to health. Upon his recovery some fifteen days later, the litigants went to a party and returned home around 3 a. m. at which time defendant announced his intention to again separate, kissed his wife, and left to take up residence with his friend. On April 15, 1956, defendant was visiting plaintiff at the latter's home when a dispute developed which ended with defendant beating his wife across the back with the telephone receiver. As told by plaintiff, defendant returned the next day to resume the argument and again strike her. Plaintiff also spoke of other beatings which were allegedly administered to her by the husband on June 1, 1956, and December 15, 1956. Upon the former occasion, she and the children were proceeding by foot to a school picnic when defendant overtook them in his automobile, struck the plaintiff, and took one of the children with him. As it later developed, the litigants, each with a child, arrived at the picnic about the same time and returned home together in the automobile. Finally, plaintiff described a quarrel with defendant at the family home on February 7, 1957, over some pictures, which resulted in his knocking her downstairs. On cross-examination, she admitted that defendant brought the car to her each morning so that she might use it during the day, that he had a key to her house and free access thereto during the period of separation, and that defendant supported his family after he removed himself from the premises.

Georgette Hampton, a maid at plaintiff's home following the separation, corroborated plaintiff's account of the beatings administered to her by defendant on April 15 and 16, 1956, and testified that between March 25, 1956, and the latter part of July, 1956, defendant was at the house every day and sometimes several times the same day. She also stated that defendant had a key to the house and came and went as he pleased. Another witness, Ann Blackwell, substantiated pl...