Rey v. Rey
| Decision Date | 07 November 1974 |
| Docket Number | No. 73--192,73--192 |
| Citation | 23 Ill.App.3d 274,319 N.E.2d 105 |
| Parties | Jose REY, Plaintiff-Appellant, v. Rosario Germendia REY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Elman & Ehardt, Harvard, for plaintiff-appellant.
No appearance filed for defendant-appellee.
The plaintiff filed a complaint against his wife seeking a divorce on the grounds of mental cruelty (Ill.Rev.Stat.1973, ch. 40, par. 1). The defendant submitted her answer denying the material allegations in the complaint. At the close of the plaintiff's testimony at the hearing before the court, the defendant's motion for a directed finding in her favor was granted. The plaintiff appeals.
The defendant has not filed an appearance nor an answering brief in this court. We exercise our discretion to rule on the merits, however. Loucks v. Loucks (1971), 130 Ill.App.2d 961, 964, 266 N.E.2d 924.
The plaintiff testified that after having been married for twenty years the parties were separated in 1972 because his wife was constantly argumentative and unpleasant. He said she humiliated him by finding fault with him in front of his friends and she threatened to leave home on many occasions. In addition, the plaintiff testified to the defendant's bad temper, and at times that she threw things, although not at him. He stated that on several occasions she threatened to commit suicide by drinking toilet cleaner. He also testified on direct examination that his wife would lock herself into the bedroom or the bathroom, refusing to talk to him or to the children and that this happened five days a week. On cross-examination, however, he said that his wife would close the door to her bedroom five days a week, but he admitted she did not lock it. He said that he did not provoke any of his wife's objectionable conduct.
Plaintiff also testified that because of his wife's actions he was 'nervous, scared too', he made many mistakes at work because to nervousness, and that he would kill himself before he came back to live with her. On cross-examination the plaintiff said that he did not see a doctor for his nervousness, but he did take aspirin.
In granting the defendant's motion for a directed finding, the court noted that, taking the testimony of plaintiff as uncontradicted, it was unable to find that the plaintiff's life, person or health were in danger, nor was it able to conclude that the plaintiff's life was unendurable.
The plaintiff contends that his testimony established a prima facie case of mental cruelty and that the court's ruling was contrary to the manifest weight of the evidence.
To prove a case entitling a spouse to a divorce on the grounds of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment calculated or obviously of a nature to torture, discommode, or render miserable the life of the complaining spouse or to endanger his or her life, person or health. Whether the acts in question constitute mental cruelty depends upon the total factual background and is determined primarily by the effect of the alleged misconduct upon the complaining party. Sharpe v. Sharpe (1973), 9 Ill.App.3d 667, 669--670, 292 N.E.2d 566; Howison v. Howson (1970), 128 Ill.App.2d 377, 381--382, 262 N.E.2d 1; Stanard v. Standard (1969), 108 Ill.App.2d 240, 249, 247 N.E.2d 438.
In the cases cited the trial court had the duty to weigh the evidence and to make its determination applying the mental cruelty standards, and the reviewing court was required to test the judge's finding to determine whether it was against the manifest weight of the evidence as disclosed by the entire record. This case requires application of a different test to review the granting of the defendant's motion at the close of the plaintiff's case. Section 64(5) of the Civil Practice Act () requires the judge to weigh the evidence in ruling on a motion for a directed finding at the close of the plaintiff's case in equity cases and cases at law tried without a jury.
The extent of the court's discretion in fulfilling its duty to weigh the evidence in ruling on the motion at the close of the plaintiff's evidence has not been uniformly interpreted. There are expressions in several cases that the plaintiff's evidence, together with all reasonable intendments, should be construed in a light most favorable to the plaintiff, and should there be Any evidence (J. L. Simmons Co. v. Lumbermens Mut. Ins. Co. (1967), ...
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