Ollman v. Ollman

• Decision Date: 22 January 1947
• Docket Number: No. 29834.,29834.
• Citation: 396 Ill. 176,71 N.E.2d 50
• Parties: OLLMAN v. OLLMAN.
• Court: Illinois Supreme Court

396 Ill. 176

71 N.E.2d 50

OLLMAN

v.OLLMAN.

No. 29834.

Supreme Court of Illinois.

Jan. 22, 1947.

Appeal from Circuit Court, Kane County; Charles A. O'Connor, judge.

Suit for divorce by Grace L. Ollman against Clarence E. Ollman. From a decree for plaintiff, defendant appeals.

Reversed and remanded.George D. Carbary and Paul M. Hamilton, both of Elgin, for appellant.

Arthur L. Paulson and W. Ben Morgan, both of Elgin, for appellee.

THOMPSON, Justice.

This is a suit for divorce filed by Grace L. Ollman in the circuit court of Kane county against her husband, Clarence E. Ollman, charging him with extreme and repeated cruelty. The cause was tried by the court upon her amended complaint and his answer thereto, denying the cruelty. The hearing resulted in a decree granting plaintiff a divorce, awarding her the custody of their minor child, and directing defendant to pay $5 a week for its support. The decree awarded her the home, with the furnishings, and also $7000 in cash, in settlement of her property rights and for alimony in full, and required the defendant to convey to her all his interest in the home, the title to which was held by then as joint tenants. From this decree defendant has appealed directly to this court, a freehold being necessarily involved in the case.

The parties were married December 25, 1935. Appellee was a registered nurse and continued to work after the marriage, and her earnings, together with those of her husband and all other moneys of his, were held in a common fund, to which each had access. Property purchased after the marriage was taken in the name of both. They were both apparently interested in working and saving and lived together until August, 1942, when appellee became an expectant mother.

Appellant urged his wife to submit to an abortion. He declared he was too nervous to have a child around. He threatened suicide and told her he would rather be dead than alive. January 27, 1943, he left and went to Ohio, remaining away for nine months. The baby was born in April, and appellant did not see it until it was five months old. The reason given his wife for leaving was that she was having a baby and his nerves could not stand it. He testified that he was extremely nervous at the time, due to the flare-up of an old thyroid trouble from which he had suffered for years, and for that reason thought it best for them both to be separated, and that it was because of his extreme nervousness that he did not want the baby. Their savings, consisting of stocks and bonds and approximately $12,000 in cash, which they kept in an iron safe in the home, were left with appellee. He did not, during his absence, send her any money for support, as that was unnecessary, since abundant funds to which she had access were in her possession. While appellant was in Ohio he worked steadily, except for a part of time when he was in a hospital. In September, 1943, he came home and effected a reconciliation, then went back to Ohio for the purpose of arranging his affairs there, and returned to his home again in October, and he and appellee again resumed their life together as husband and wife. After the reconciliation, they again lived together with minor misunderstandings, until July 10, 1945, when appellee left, telling him she intended to get a divorce.

The complaint, as amended, alleged specifically that on or about January 15, 1943, appellant, in a fit of anger and without provocation on the part of appellee, violently pushed and shoved her, causing her pain and injury, and that on or about January 22, 1943, in a fit of anger, he violently beat and struck her, without provocation or fault on her part. The complaint also alleged generally that on numerous other occasions he had abused and mistreated her and caused her great embarrassment, humiliation, and mental anguish, and that after the birth of the child and appellant's return to his home, he proceeded to abuse and mistreat her.

The only evidence given to sustain the above charge of cruelty was the uncorroborated testimony of appellee, who testified that on January 15, 1943, appellant threatened to commit suicide and to leave and never come back; that she grabbed hold of him, and he got mad and grabbed her and threw her down, causing her pain and suffering, and that this was without provocation on her part, other than trying to induce him to stay. She also testified that he threw her down at other times, under similar circumstances, in January, 1943; that after he came back he held two jobs a day, working sixteen hours a day, usually working on Sundays; that whenever anyonewanted him to work he would work, and would never take time to play; that he brought all the money he made home and she would often cash the checks; that he never took her any place and never wanted any company; that she asked him to go to a party and he said he would rather sleep; that he never paid any attention to the baby, would not speak to it, and when she asked him why he did not speak to the baby, would reply that he did not have time; and that sometimes he would not speak to her for two weeks at a time.

Appellant testified, denying unequivocally the alleged acts of cruelty. He swore that he never threatened his wife, never threw her down and never at any time committed any acts of cruelty or violence against her; that she would be sullen at times, the same as he; that she nagged as much, if not more, than he, and that she often refused to speak to him when he returned from work.

The foregoing substantially presents the evidence in the case upon the alleged grounds of divorce, and in this state of the record it can hardly be said that the charge of extreme and repeated cruelty is supported by the degree of proof required in a divorce case. Appellee testified to only one act of appellant causing her any pain and suffering. She states in her brief that she considers appellant's alleged acts of cruelty of little consequence and would not ask for a divorce on that account were it not for the other grievances of which she complains. However that may be, it is wholly immaterial whether appellant was guilty of the acts he is charged to have committed in January, 1943, or whether such acts constituted extreme and repeated cruelty, inasmuch as the offense, if committed, was condoned and no subsequent conduct on the part of appellant is shown which can be held sufficient to do away with such condonation.

Condonation, in the law of divorce, is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness. Young v. Young, 323 Ill. 608, 154 N.E. 405. If the condition is broken, then the condonation is to be deemed withdrawn or avoided and the injured party may avail himself of the remedy for ...