Lutticke v. Lutticke

• Decision Date: 18 May 1950
• Docket Number: No. 31357,31357
• Citation: 92 N.E.2d 754,406 Ill. 181
• Parties: LUTTICKE v. LUTTICKE.
• Court: Illinois Supreme Court

Page 754

92 N.E.2d 754

406 Ill. 181

LUTTICKE v. LUTTICKE.

No. 31357.

Supreme Court of Illinois.

May 18, 1950.

Edward G. Krantz, and Daniel A. Costigan, both of Chicago (Lathrop W. Hull, Chicago, of counsel), for appellant.

O'Shaughnessy, O'Shaughnessy & Lambert, of Chicago (Richard P. Lambert and John J. Ryan, Chicago, of counsel), for appellee.

WILSON, Justice.

The plaintiff, Richard Lutticke, brought an action in the superior court of Cook County on June 30, 1948, against the defendant, Olga Lutticke, for divorce on the ground of desertion. Plaintiff also alleged that he and defendant owned the real estate where he resided in joint tenancy and that the property was acquired out of his funds with no contribution from defendant, and asked that defendant be ordered to convey her interest in the property to him. On January 28, 1949, defendant brought a separate action in the superior court to partition the same real estate and, a few days later, she filed an answer and counterclaim for separate maintenance in the divorce action. Plaintiff answered defendant's complaint for partition and, by stipulation, the two actions were consolidated.

Upon a hearing of the consolidated causes, the chancellor found that defendant had wilfully deserted and absented herself from plaintiff without reasonable cause for more than one year and entered a decree dissolving the marriage. Thereafter, in a second degree, the chancellor found that plaintiff purchased the property in question with his own funds and improved it with his own funds and labor; that defendant made no contribution for the purchase of the property or the cost of its improvement; that defendant's interest as a joint tenant equitably belonged to plaintiff, and that defendant did not have sufficient title to the real estate to support her complaint for partition. Defendant was ordered to convey her interest in the property to plaintiff and both her counterclaim for separate maintenance and her complaint for partition were dismissed for the want of equity. A freehold being necessarily involved in both the divorce proceeding and the action for partition, defendant prosecutes a direct appeal.

At the time of the trial in 1949, plaintiff was sixty-five years of age and defendant was sixty-nine. The parties were married at Chicago in 1939. Defendant had several grown children by a previous marriage. Except for household furniture, defendant brought no money or property to the marriage and was never gainfully employed. Plaintiff, it appears, was steadily employed, first as a draftsman and, later, as an embosser. About 1943, he used $600 of his own funds to purchase a vacant lot in Bridgeview, a suburb of Chicago, and took title with his wife in joint tenancy. In 1944, plaintiff improved the property with a four-room house, with his own money and largely by his own labor. Lathough the parties moved into the new dwelling before it was completed, defendant did not render any material assistance in finishing the house. This is the property involved in both actions and was the only real estate owned by the parties.

From the very beginning of their marriage, plaintiff and defendant had frequent quarrels with respect to money matters and plaintiff testified that defendant occasionally talked about leaving him. His sister-in-law, Mrs. Erwin Lutticke, who lived next door in Bridgeview, added that defendant often spoke to her about leaving and wanting a divorce. In May, 1947, one of defendant's sons, Otto Wanke, who lived in Chicago with his wife and two small children, the youngest only one month old, asked her to take care of his household because his wife, critically ill, was in a hospiral, where she died a few months later. On May 29, 1947, while plaintiff was away at work, defendant packed some of her clothes and personal articles and moved to her son's house. Plaintiff continued to reside in Bridgeview and, after defendant had been living with her son and taking care of her grandchildren for thirteen months, he filed his complaint for divorce.

As to the circumstances of defendant's departure, Mrs. Erwin Lutticke stated that defendant visited her on May 28, 1947, cried, said she was going to take care of her son's children and was not coming back and told her she could have her drapes, sewing machine and other similar articles and that, on May 29, defendant said goodbye, cried again, and stated it was her duty to care for her grandchildren. About one month later, she visited defendant in Chicago and heard her use her former married name, Mrs. Wanke. The witness related that, when she called attention to this, defendant replied that everyone there knew her by her former married name and she was not going to change it. Mrs. Erwin Lutticke added she saw defendant in Bridgeview one day in July, 1947, and defendant told her that she had returned for some clothing, that she did not want to come back because of her grandchildren, and that she did not want to come back anyhow. On cross-examination, the witness testified that she heard plaintiff tell his wife she could help her son but not for more than months and that after two months he would find a housekeeper.

Plaintiff testified to the effect that in May, 1947, his wife insisted she had to take care of her son's house; that he consented, in a general way, to her going for a period of not longer than two months; that she left on May 29, 1947, without telling him she was going; that he saw her at a funeral and one other time when she returned for some of her clothes, and that he never asked her to come back nor did he tell her she could not return. On cross-examination, he denied that his wife ever asked him to stay at her son's house on weekends, and stated that when they sold part of their land to his brother, in August, 1947, she asked for and received $250, one half of the proceeds of the sale.

Defendant testified that her husband told her she could go to her son's home as long as she was needed; that she did not tell him how long she expected to be away because she understood from her son's doctor that her infant grandchild would require special care for six months; that she suggested to her husband that he take some of his meals and spend the weekends with her at her son's house, but he declined; that she informed him she was leaving on May 29, 1947; that when she departed she intended to return to him; that he was home on each of the three or four occasions she returned to Bridgeview for clothes; that one time he put his arms around her and kissed her on the cheeks; that, on later occasions, he was abrupt and after talking a while, would say he had to leave; that she did not say anything to him about returning, and that he never asked her to come back. Defendant used the word 'box' in referring to the house in Bridgeview and admitted she had complained that the rooms were small but denied that she ever said she was leaving permanently or that she offered Mrs. Erwin Lutticke any of her possessions. The only other witnesses were defendant's son, Rudolph Wanke, and his wife. They testified that they stopped at the house in Bridgeview in July, 1947, to visit defendant...