Van Dolman v. Van Dolman

• Decision Date: 18 November 1941
• Docket Number: No. 26327.,26327.
• Citation: 378 Ill. 98,37 N.E.2d 850
• Parties: VAN DOLMAN v. VAN DOLMAN et al.
• Court: Illinois Supreme Court

378 Ill. 98

37 N.E.2d 850

VAN DOLMAN

v.VAN DOLMAN et al.

No. 26327.

Supreme Court of Illinois.

Nov. 18, 1941.

Suit by Mary Ellen Van Dolman against Alvin T. Van Dolman and others for a divorce and for partition of certain realty. From a decree dismissing the complaint, plaintiff appeals.

Reversed and remanded.Appeal from Circuit Court, Cook County; Philip J. Finnegan, judge.

Gariepy & Gariepy, of Chicago (Fred A. Gariepy, owen Rall, and John Spalding, all of Chicago, of counsel), for appellant.

Castle, Williams & McCarthy, of Chicago (Emmett J. McCarthy and John D. Clancy, Jr., both of Chicago, of counsel), for appellee Alvin T. Van Dolman.

GUNN, Justice.

Appellant, Mary Ellen Van Dolman, filed her complaint in the circuit court of Cook county January 27, 1940, praying for a divorce on the ground of desertion, from appellee, Alvin T. Van Dolman. The complaint also prayed for a partition of certain real estate owned by the parties in joint tenancy. The defendant answered denying that he had deserted the plaintiff, but was living separate and apart from her pursuant to a decree of separate maintenance obtained by appellant. After a hearing, the court entered a decree finding that it did not have jurisdiction of the subject matter; that defendant had not wilfully deserted appellant for more than one year prior to the time the complaint was filed, and dismissed the complaint for want of equity. Since a freehold is involved where the right to partition is denied (Albers v. Central Republic Bank & Trust Co., 372 Ill. 27, 22 N.E.2d 704) we have jurisdiction of the appeal.

The complaint charged the desertion of defendant existed since December 18, 1938, but it appears there had been a former suit between the parties since that date and the institution of the present case, to which reference is made in the complaint and made a part thereof, but no copy of the decree or pleadings in such former proceeding is attached to the complaint, nor was it offered in evidence. However, during the trial, counsel for the respective parties agreed that a suit for divorce was commenced by appellant December 20, 1938, charging appellee with cruelty, and that a decree was entered in that case May 1, 1939, awarding appellant separate maintenance after the complaint had been amended. The answer admits such a decree was entered but denies appellee was guilty of wilful desertion for one year.

Appellant contends the decree in the former case finds she was living apart from her husband without fault because appellee had deserted her, and claims this is conclusive that desertion constituting a ground for divorce commenced at the time set out in the decree, viz., December 18, 1938. On the other hand, defendant claims the time consumed in litigating the first case cannot be counted in computing the duration of the desertion set out as a ground for divorce, and urges, further, that since a decree of separate maintenance provides for the parties living separate and apart there can be no desertion upon his part because the wilful element is absent. With the record incomplete by a failure to incorporate the decree and pleadings in the former proceedings, several essential facts necessary to a decision of all of the points raised by counsel are absent.

However, the following facts are established: The parties separated December 18, 1938; a suit for divorce was filed December 20, 1938; a decree for separate maintenance of appellant was entered May 1, 1939; the present divorce suit was filed January 27, 1940, and a hearing had and decree entered January 10, 1941. It is also agreed that the parties owned the property described in the complaint as joint tenants, and the evidence shows that the parties have not lived together since the separation. The facts not established are: The actual findings in the decree of separate maintenance; the time the amendment to such complaint was made, or the ground set out in the amended complaint upon which relief was granted.

Appellant claims the court erred in denying her a decree for partition of the jointly owned premises, and this point is well taken, as partition is a remedy that may be demanded as a matter of right (Yedor v. Chicago City Bank & Trust Co., 376 Ill. 121, 33 N.E.2d 220;Murphy v. Murphy, 343 Ill. 234, 175 N.E. 378) and is available when property is jointly owned by husband and wife. Hitchcock v. Hitchcock, 373 Ill. 352, 26 N.E.2d 108.

The contention made by appellant that the decree of separate maintenance, assuming it was allowed because the husband left her, is conclusive that desertion as a ground for divorce existed at that time, is not an adjudication of that question, because the issue decided in the separate maintenance case is whether the appellant was living apart from her husband without fault upon her part, and this issue may be decided for or against either party without adjudicating that a ground for divorce did or did not exist. Hoffman v. Hoffman, 330 Ill. 413, 161 N.E. 723;Umlauf v. Umlauf, 117 Ill. 580, 6 N.E. 455,57 Am.Rep. 880;Wahle v. Wahle, 71 Ill. 510.The object of a separate maintenance statute is to enable the wife, when living apart from her husband without fault, to sue in equity for her support. Johnson v. Johnson, 125 Ill. 510, 16 N.E. 891. She could not do this at common law as it was only those who furnished necessities to a wife, who was compelled to leave the home of her husband, who could maintain an action against the husband....