Sullivan v. Sullivan
| Decision Date | 02 February 1967 |
| Docket Number | Gen. No. 10753 |
| Citation | 223 N.E.2d 461,79 Ill.App.2d 194 |
| Court | United States Appellate Court of Illinois |
| Parties | Walter SULLIVAN, Plaintiff-Appellee, v. Carol SULLIVAN, Defendant-Appellant. |
Bernard C. Mayberry, Lincoln, Harold Broverman, Taylorville, for appellant.
Edwin C. Mills, Lincoln, for appellee.
The trial court's decree awarded a divorce to the plaintiff husband upon the grounds of defendant's adultery and further determined that plaintiff's conveyance of previously owned real estate in joint tenancy with the defendant, following marriage, was void for want of consideration, want of delivery of the deed, and that the deed was obtained by false and fraudulent representations. Defendant's counterclaim for partition was dismissed for want of equity, and the decree ordered the defendant to re-convey the property to the plaintiff.
This appeal is limited to that part of the decree ordering the wife to re-convey the interest in the real estate and dismissing her action for partition.
The plaintiff, aged 64, and the defendant, aged 21, were married on June 2, 1963, following a courtship of two and one-half years. On September 14, 1963, plaintiff's real estate, owned by him prior to the marriage, was conveyed so as to create a joint tenancy between the parties. The deed was recorded on September 24, 1963. The defendant admitted that she went to visit her mother for a week and a half or two weeks during the first part of October, 1963, and moved from the town where the parties resided on October 15th. An issue is whether defendant lived in plaintiff's home following the marriage.
The complaint, filed in September, 1964, sought divorce upon the grounds of adultery and contained counts alleging that the conveyance in issue was without consideration and was induced by fraud and asked that defendant's interest in the real estate be cancelled and held void. The case was heard by the trial court upon an amended complaint relating to the same issues. Defendant answered, denying the charges of adultery and alleging that she was a joint tenant in the real estate by virtue of the deed, and counter-claimed for partition of the real estate.
The plaintiff's evidence is that the defendant refused to live with him in his home beginning with the return on the day of the wedding. It is his testimony that as they returned to Mt. Pulaski from Decatur, she stated that she was sorry that she had married him and was not going home with him, and that she stayed that night at the home of a friend in Mt. Pulaski with whom she had been living, and substantially that she continued to do so until leaving Mt. Pulaski. Defendant says that she may have made the statement that she was sorry that she had married him. Defendant further says that she stayed for several days with her friend in the town because a bedroom in the house was being painted, although it appears that at least one other bedroom was available.
The testimony of the plaintiff, with some corroboration, is that the defendant refused to stay at his home at night, except for two occasions when defendant's mother was visiting, at which time the defendant occupied a bedroom with the latter. Plaintiff testified that the only other occasion when defendant stayed the night was a time when the parties had been out to dinner, and as they returned the defendant became violently ill and remained so during the night. The tenor of the evidence is that the defendant frequently came to the home during the day and that she prepared the meals which were taken to the plaintiff at his place of business.
Upon defendant's testimony, she left because of the impotence of the plaintiff. He denies this. It is her testimony that she did, in fact, live in the home of the plaintiff during most of the period through June 2nd to October, 1963. Her corroborating witness spoke of visits to the home of the parties in the late afternoon or early evening.
The thrust of plaintiff's testimony is that he was seeking to persuade the defendant to come to the home and live with him, and that he purchased a colored television set with the hope of persuading her so to do. He further testified that following conversations with the defendant and her promises that she would come to live in the home, he procured the conveyance in joint tenancy, which is at issue. The essence of defendant's testimony is that plaintiff wanted to make provision for her and to cut out plaintiff's children, who did not approve of the marriage of the parties.
From the testimony of the defendant, it appears that she moved from Mt. Pulaski without telling plaintiff that she was doing so.
Our examination of the record demonstrates utter conflict upon most of the matters of evidence between the parties. As has been so frequently said by reviewing courts, the trial court has the opportunity to hear the witnesses and observe their demeanor and manner of testifying, and for such reason the findings reached by the trial court will not be disturbed unless manifestly against the weight of the evidence. Tuyls v. Tuyls, 21 Ill.2d 192, 171 N.E.2d 779; Baker v. Baker, 412 Ill. 511, 107 N.E.2d 711. Our examination of the record discloses nothing calling for the conclusion that there was manifest error by the trial court.
It is the defendant's theory that by reason of the marital relation, the conveyance from the plaintiff to defendant is presumed to be a gift. An acceptance of the determination of the trial court upon the nature of the transaction makes such a presumption difficult to sustain.
The authority in this State is that absent fraud or coercion, a voluntary...
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