Marriage of Smoller, In re
| Decision Date | 12 August 1991 |
| Docket Number | 1-89-1294,Nos. 1-89-0877,s. 1-89-0877 |
| Citation | 218 Ill.App.3d 340,578 N.E.2d 256 |
| Parties | , 161 Ill.Dec. 129 In re MARRIAGE OF Gerald J. SMOLLER, Petitioner-Appellant, and Olivia Smoller, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Beerman, Swerdlove, Woloshin & Barsezky, Chicago (Howard A. London, of counsel), for petitioner-appellant.
Batler and Schwartz, Buffalo Grove (Jerome M. Kaplan, of counsel), Kirsh, Berman and Hoffenberg, Chicago (Allan Hoffenberg, of counsel), for respondent-appellee.
Gerald Smoller appeals from the denial of his petition for dissolution of marriage and from the denial of a motion for a change of venue based on the prejudice of the trial judge.
Gerald and Olivia Smoller were married on August 1, 1965. They have two children, a daughter, born June 23, 1968, and a son, born May 6, 1971.
On August 5, 1985, Gerald filed a petition, as amended, for dissolution of marriage on grounds of irreconcilable differences and mental and physical cruelty. (Ill.Rev.Stat.1985, ch. 40, pars. 401(a)(1), (2).) Olivia subsequently filed a petition for legal separation and custody.
Bifurcated trial proceedings in the matter began in April 1988.
Following testimony on the issue of grounds, the trial judge denied Gerald's petition, determining, in part, that the evidence did not support a finding of irreconcilable differences but indicated merely that Gerald was more interested in a relationship with another woman. The trial judge also remarked that he did not believe Gerald had made attempts at reconciliation or that future attempts would be futile.
Trial continued on the issues of maintenance, child support, and educational expenses for the children. During that portion of the trial, Gerald unsuccessfully sought a change of venue based on the prejudice of the trial judge (Ill.Rev.Stat.1985, ch. 110, par. 2-1001(a)(2)).
Ultimately, judgment for a legal separation was granted in Olivia's favor and Gerald was ordered to pay maintenance, child support, college expenses for the couple's daughter, and attorney fees incurred by Olivia.
This appeal followed.
In appealing from the denial of his petition for dissolution, Gerald argues only that the determination that irreconcilable differences was not sufficiently proved was against the manifest weight of the evidence. He makes no challenge that the denial was improper in light of evidence produced as to the other grounds alleged. Accordingly, we summarize, below, only testimony adduced pertinent to the issue of irreconcilable differences.
Gerald testified that difficulties in the marriage began approximately at the time of the birth of the couple's son in 1971. Disagreement first arose over whether the couple could afford to purchase a house. Nevertheless, the couple purchased a house in 1971 with a down payment provided by Gerald's parents. Disagreement later arose concerning finances and disciplining the children. Olivia also ceased attending social gatherings with Gerald at that time. The couple's physical relationship also deteriorated. At one point, Olivia asked Gerald to sleep in a separate room.
In February 1982, Gerald moved out of the house at Olivia's request, but returned after eight days. Within months, disagreements again arose. In fact, Gerald testified, the couple could not agree on any matter. Gerald also stated that, during that time, Olivia did not want him to sleep in the couple's bedroom. Affection between them had ceased. Olivia requested Gerald to quit the marital residence on numerous occasions. Gerald had suggested that the couple seek counseling, but Olivia refused.
In May 1983, Gerald again left the marital residence. However, he continued to visit on a regular basis to see the children and care for the house. He and Olivia would also, together, see mutual friends on weekends. Gerald testified he was uncertain of the status of their marriage at that time.
Gerald returned to the marital residence in September 1983. Arguments continued over finances and other matters. Gerald again suggested counselling but Olivia refused.
Gerald moved out of the marital residence for the last time in December 1984 and the couple have lived separate and apart since that time. Gerald stated that when he left, he told Olivia he was never returning. He stated he has no feelings for her.
In 1985, however, the couple sought counseling from Elaine Krumbien, a social worker contacted by Olivia. By that time, Gerald was dating another woman, whom he had met after leaving the marital residence. Olivia insisted to Krumbien that her further attempts at reconciliation were dependent on Gerald ending his relationship with that woman. Krumbien believed Gerald's relationship with the woman was irrelevant. Because Olivia felt Krumbien condoned Gerald's relationship with the other woman, Olivia refused further counselling with Krumbien.
Gerald refused to make further reconciliation efforts.
Olivia's testimony contradicted Gerald's explanation of the couple's disagreements. Contrary to Gerald's statement that the couple disagreed over many matters, Olivia testified the couple was able to resolve almost all of their differences. Olivia also denied ever having told Gerald that she did not want to be married to him and that she wanted him to quit the marital residence. However, she acknowledged Gerald had informed her in 1984 that he intended to leave when a settlement was realized in a lawsuit he had referred to another attorney. After Gerald left in December 1984, he refused to talk to Olivia, except regarding their children, and told her that he had no interest in their marriage. Olivia testified it was she who suggested counselling and that it was Gerald who had refused. Gerald had, however, agreed to see Krumbien. Olivia admitted to refusing to continue counselling with Krumbien and stated Gerald refused Olivia's request to seek other counselling. Finally, Olivia stated she continues to love Gerald and desires to remain married to him but that Gerald hates her.
In Illinois, pursuant to section 401(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act), a marriage may be dissolved without a determination of the fault of either party where three conditions exist: the parties have lived separate and apart for a continuous period in excess of 2 years; irreconcilable differences have caused the irretrievable breakdown of the marriage; and efforts at reconciliation have failed or future reconciliation attempts would be impracticable and not in the best interests of the family. Ill.Rev.Stat.1985, ch. 40, par. 401(a)(2); Ill.Ann.Stat.1985, ch. 40, par. 401, Council Commentary, Supp. at 19 (Smith-Hurd 1980).
The Supplement to the Historical and Practice Notes to the Act direct attention to In re Marriage of Bates (1986), 141 Ill.App.3d 566, 570, 95 Ill.Dec. 922, 924, 490 N.E.2d 1014, 1016, as some guidance in interpreting the requirements of section 401(a)(2). Bates involved an appeal from the denial of a petition for dissolution based upon allegations of mental cruelty. However, the appellate court held the no-fault provision of section 401(a)(2) applicable even though the section became effective during the pendency of post-trial motions. Determining the record provided sufficient basis to address the issue for the first time on appeal, the court found the requirements of the section satisfied.
Specifically, the court concluded the parties had been separated for the minimum period of two years, had attempted reconciliation and counselling without success, and that difficulties and bitterness existed between the parties. The court found the petitioner entitled to dissolution pursuant to the section and remanded the cause with directions to the trial court to enter an immediate order accordingly. (Bates, 141 Ill.App.3d at 570, 575, 95 Ill.Dec. at 922, 924, 490 N.E.2d at 1014, 1016.) In so holding, the court defined irreconcilable differences as "the existence of marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed," following the California Appellate Court's definition of that term in In re Marriage of Walton (1972), 28 Cal.App.3d 108, 116, 104 Cal.Rptr. 472, 479. (Ill.Ann.Stat.1985, ch. 40, par. 401, Council Commentary, Supp. at 19 (Smith-Hurd 1980).) The court further defined an irretrievable breakdown of a marriage to exist "where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation," following the Georgia Supreme Court's interpretation of that phrase in Harwell v. Harwell (1974), 233 Ga. 89, 90, 209 S.E.2d 625, 627. Ill.Ann.Stat.1985, ch. 40, par. 401, Council Commentary, Supp. at 19 (Smith-Hurd 1980).
Relying primarily on Bates and cases cited therein, Gerald contends here that Olivia's desire to maintain the couple's marriage, a desire...
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