Mason v. Mason

• Decision Date: 04 December 1950
• Docket Number: Gen. No. 45146
• Citation: 342 Ill.App. 140,95 N.E.2d 522
• Parties: MASON v. MASON.
• Court: United States Appellate Court of Illinois

Page 522

95 N.E.2d 522

342 Ill.App. 140

MASON v. MASON.

Gen. No. 45146.

Appellate Court of Illinois, First District, First Division.

Dec. 4, 1950.

Rehearing Denied Dec. 18, 1950.

Sol R. Friedman, I. S. Friedman, Chicago, for appellant.

George Yellen, Chicago, for appellee.

FEINBERG, Justice.

This appeal is from a decree of divorce in favor of defendant and from an order denying the petition to vacate the decree. The original complaint filed by plaintiff on July 7, 1947, was for separate maintenance, charging desertion and, by strong implication, adultery. An answer was filed and also a cross-complaint for divorce, charging plaintiff with cruelty.

The cause was heard November 2, 1949, and a decree entered on November 3, 1949, dismissed the separate maintenance complaint for want of equity and granted a divorce to defendant and cross-complainant on the charge of cruelty. It gave the custody of the children to plaintiff and directed defendant to pay plaintiff $20 a week for their support and maintenance.

Upon the hearing no evidence was offered by plaintiff as to the inference of adultery, nor was any explanation made for the failure to offer such evidence, though the cause had been pending for two years.

On November 30, 1949, plaintiff filed her petition to vacate the decree on the grounds of newly discovered evidence, alleging that plaintiff had discovered, after the entry of the decree, that the witnesses named in her petition would testify for her to circumstances that would indicate defendant was guilty of adultery. Attached to her petition were affidavits of the witnesses named in the petition, setting forth facts to which they would testify, if called as witnesses. An examination of the petition and affidavits satisfies us that they fall far short, even if true, of proving the charge of adultery. A hearing was had upon the petition, and an order entered dismissing the petition.

Plaintiff now argues that the evidence upon the trial of the cause fails to support the decree of divorce on the ground of cruelty; that the facts testified to by defendant established only slight acts of cruelty, and do not constitute extreme and repeated cruelty under the statute; and that the corroborating witnesses, not eyewitnesses to the alleged acts of cruelty, merely testified that they had seen the bruises testified to by defendant, immediately after the alleged acts of cruelty.

Extreme and repeated cruelty, under the statute, to warrant a divorce, has been defined as 'physical acts of violence, bodily harm or suffering, or such acts as endanger life or limb or such as raise a reasonable apprehension of great bodily harm.' Wesselhoeft v. Wesselhoeft, 369 Ill. 419, 424, 17 N.E.2d 56, 58.

In Levy v. Levy, 388 Ill. 179, 183, 57 N.E.2d 366, 369, the court said: '* * * that in suits for divorce on the grounds of cruelty no different principles of law or rules of evidence can be applied where the husband is plaintiff than where the wife is plaintiff. Both parties are governed by the same statute which draws no distinction because of sex but in fact states that a divorce may be had where 'either party * * * has been guilty of extreme and repeated cruelty.' Ill.Rev.Stat.1941, chap. 40, sec. 1.'

In the case cited the court further traced the development of the rule since the early case of De La Hay v. De La Hay, 11 Peck 252, 21 Ill. 252, down to Teal v. Teal, 324 Ill. 207, 155 N.E. 28, to the effect that slight acts of cruelty on the part of the wife will not constitute extreme and repeated cruelty under the statute, and said 388 Ill. at page 184, 57 N.E.2d at page 369:

'However, it should by no means be construed as subjecting a husband to one degree of cruelty or mistreatment and a wife to quite another. Our statute requires proof of 'extreme and repeated cruelty' and obviously 'slight acts of violence' are not extreme as to a normal person whether husband or wife.

'It is true that the physical condition of the parties involved must be taken into account and each case considered upon its own facts. Thus, while a slight slap ordinarily would not constitute extreme cruelty as to the average, healthy person the same act might well have a different effect upon one who is quite frail or an invalid. It is only in this respect that we might differentiate acts of cruelty or calibrate marital violence in degrees.'

In the instant case, defendant testified that an argument arose on November 15, 1945, about bills incurred by plaintiff; that he requested her to cut them down; that she became angry, took a saucepan and hit him on the head, made a gash along his ear, and started swinging and hit him on the shoulder and back of the neck; that on January 4, 1947, another argument arose about the same subject matter; that she started swinging, and that he turned his back to her and she hit him on the back. The evidence of the corroborating witnesses has been held competent. Albert v. Albert, 340 Ill.App. 582, 92 N.E.2d 491; Muir v. Muir, 310 Ill.App. 443, 34 N.E.2d 873.

In our judgment, under the reasoning of the cases cited, this evidence, if believed, constitutes extreme and repeated cruelty under the statute. The chancellor was in a better position to judge, having seen the witnesses, and we should not disturb his finding unless we are satisfied that it is against the manifest weight to the evidence. We cannot, upon this record, say it is against the manifest weight of the evidence. We think the chancellor exercised a sound discretion in denying the petition to vacate the decree, upon the showing made.

The degree and order appealed from are affirmed.

Affirmed.

TUOHY, J., concurs.

NIEMEYER, P. J., dissents.

NIEMEYER, Presiding Justice (dissenting).

Plaintiff and defendant were married September 4, 1937. They ceased cohabitation as husband and wife around January 4, 1947, but lived in the same apartment until the latter part of February, 1947, when defendant left. Three children were born of the marriage, aged 8, 6 and 2 years when the decree was entered November 3, 1949. The last child was born during the pendency of this suit, commenced July 7, 1947.

The first count of the complaint is for separate maintenance and charges: '* * * defendant, without cause or provocation on the part of plaintiff, has been guilty of wilfully deserting and abandoning plaintiff, on January 6, 1947; that defendant has been keeping company with one Irene Woelke, and that said Irene Woelke admitted to plaintiff on April 2, 1947, that she was seeing defendant, and promised to stop seeing him, but that on the contrary said relationship has continued.'

The second and third counts, not involved in this appeal charge Irene Woelke with alienating the defendant's affections for plaintiff and his children. The attorney representing the defendant in the trial court and on this appeal, entered the appearance of Woelke. Defendant answered the complaint against him August 5, 1947. More than 16 months later, on December 20, 1948, he filed his counterclaim for divorce, charging cruelty on November 15, 1946 and January 4, 1947. Plaintiff answered denying the charge of cruelty. She did not set up adultery of defendant as a matter of recrimination. She does not charge adultery in her complaint for separate maintenance. Her allegation that defendant was 'keeping company' with Irene Woelke was proved on the trial and admitted by defendant.

Plaintiff testified that in December 1946 she found a picture of a woman (plaintiff's exhibit 2 for identification) in defendant's billfold; that defendant would not tell her who the woman was but said that some one had given the picture to him and he wanted it. Mrs. Arcera, a neighbor, testified that she saw the woman in the exhibit in June 1947 with defendant in his automobile on Kedzie avenue; that that was not the only occasion when she saw the defendant with the woman. Mrs. Mattis, another neighbor, testified that since 1947 she saw defendant on a street car with a lady friend, not the plaintiff.

Defendant, called as a witness under section 60 of the Civil Practice Act, Ill.Rev.Stat.1949, c. 110, § 184, testified that plaintiff complained about his association with Irene Woelke; that he knew her and had been out with her; that the first time plaintiff struck him was around November 15, 1946; that she struck him again on January 4, 1947, and on another occasion, but he could not remember when it was. When testifying in support of his counterclaim he said that on November 15, 1946 plaintiff hit him with a sauce pan, making a gash in his ear, and hit him on the shoulder and back of the neck, and that on January 4, 1947, 'She told me she wanted me to join her church. I said I never would, but she could go with the children. Then I said 'We have to cut down on bills'; she got angry and started swinging at my head and I turned my back; she hit my back and said for me to get out, and that is when I got out.' He further testified that he came back the next day and said that 'if she was going to be like that give me a divorce and I would pay for it.' She said 'No, you never will'; that he left and never lived with plaintiff as her husband since that time; that he lived in the house the first three weeks in February; that he talked with her about a divorce; that the last day he was there he got into another argument about religion; that she said 'Get out,' and he left. On cross-examination he testified that he had asked for a divorce many times, and plaintiff told him to get out; that she did not use any force or violence in getting him to leave in February, 1947; that she did not strike him in February; that he didn't give her a change. Plaintiff testified that she never struck him and never had any arguments with him about religion.

Defendant called Otto Hartwig and his stepdaughter, Mrs. Cynar. Hartwig testified that he saw the defendant in a bowling alley on November 15, 1946; that he had a cut on his ear and a...