Appeal from the Circuit Court of McHenry county; the Hon.
BERNARD M. DECKER, Judge, presiding. Affirmed and remanded.
JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 6, 1960.
This appeal was originally lodged in the Supreme Court of Illinois and was by that court transferred here with a finding that the appeal was wrongfully taken to that court.
It had been urged that the defendant had been deprived of certain constitutional rights. By transferring to this court all alleged constitutional errors assigned were disposed of.
The cause was heard by the Circuit Court of McHenry County without a jury. It was stipulated that only the issue of divorce and separate maintenance would be heard, and that all other issues joined would be reserved for further hearing by the Court.
The issues were joined and heard on plaintiff's complaint for divorce charging desertion and cruelty (or in the alternative for separate maintenance on the same grounds) filed February 15, 1957, defendant's answer to the complaint filed April 30, 1957, and plaintiff's reply to the answer filed May 14, 1957; plaintiff's amendment to the complaint filed July 15, 1958, and defendant's answer to the complaint as amended filed July 29, 1958; plaintiff's supplemental complaint for divorce charging that since the filing of the original complaint the defendant has been guilty of committing adultery and certain other acts of extreme and repeated cruelty, filed February 18, 1959, by leave of court, defendant's answer to and motion to dismiss plaintiff's supplemental complaint filed February 19, 1959, and plaintiff's reply thereto filed February 24, 1959; plaintiff's amendment to her supplemental complaint filed February 27, 1959; and upon defendant's counter-complaint for divorce charging desertion and habitual intoxication filed July 15, 1958, and plaintiff's answer to the counter-complaint filed August 4, 1958.
On February 27, 1959, the chancellor entered an order finding among other things that the plaintiff is now, and for more than ten years had been, an actual resident of McHenry County, Illinois, before the filing of her original complaint and her supplemental complaint, that the defendant had on or about January 24, 1959, committed adultery with a woman named Terry Resch as charged in plaintiff's supplemental complaint as amended, that defendant has failed to maintain the charges alleged in his counter-complaint, and that the same should be dismissed for want of equity, and that a decree of divorce should be entered upon the supplemental complaint. The order therein ordered, adjudged, and decreed (1) that the bonds of matrimony be dissolved (2) that the counter-complaint of the defendant be dismissed for want of equity (3) that the foregoing constitutes a final and appealable decree and there is no just reason for delaying enforcement (4) that all other questions raised by the pleadings and still pending are reserved for further consideration of this court, and that until further order, defendant shall comply to the temporary alimony and support order of December 17, 1958.
The appeal was perfected pursuant to the provisions of Section 50 (2) of the Civil Practice Act, Chap. 110, Sect. 50 (2), Ill. Rev. Stat. 1957, and limited in its scope by the notice of appeal to the decree of February 27, 1959; "whereby it was decreed that Plaintiff be awarded a divorce on the grounds of adultery and that Defendant and Counterclaimant's Counterclaim for Divorce be dismissed for want of Equity."
Defendant's assignments of error cognizable before this court are (1) lack of jurisdiction of the subject matter in that plaintiff was not a resident of McHenry County, Illinois, at the time of filing her supplemental complaint and the hearing thereon (2) failure to establish a prima facie case of adultery (3) findings of the court and decree against the manifest weight of the evidence (4) that the court erred in overruling defendant's objections to evidence and motions to exclude testimony and (5) that the court erred dismissing defendant's counterclaim for want of equity.
Joseph and Lucile Kovac were married on August 2, 1933, and two children were born of the marriage, Elyse, age 18, and Judith, age 15. The family lived in a thirteen room mansion in Crystal Lake, Illinois, in McHenry County for over ten years preceding their troubles. The record indicates their lives were not serene prior to September, 1954, the date when the events leading up to the instant case commenced.
On September 1, 1954, the defendant established an apartment in Chicago. According to plaintiff's version, defendant said he was going to take all his clothes and move to Chicago. The defendant contended the separation was by mutual agreement because of plaintiff's unhappiness over their marital affairs and due to business reverses he was required to spend more time in Chicago where his office was located, and he would prefer to move so the children might continue with their school, and he would come home weekends.
It is fair to say that until January 1, 1957, the defendant made periodic visits to the marital residence, that plaintiff on occasions visited his apartment in Chicago remaining overnight, that they took two trips together, and that they on some of those occasions lived as man and wife. It is further undisputed that the defendant supported the family in some fashion until the latter part of May, 1957.
In addition to the foregoing, certain facts in detail are important to the issues raised by this appeal.
Lucile Kovac testified that until November 4, 1958, she lived in the marital residence in Crystal Lake, and since said date she had been staying with her daughter in Barrington, Illinois, for the reason that for a year and a half she had not been receiving any support from her husband; that she was a registered voter of McHenry County; and that when things were settled she will move back to her home in Crystal Lake if she can afford it and make a go of it. It was admitted in the pleadings that she had removed certain household goods and stored them for safekeeping when she moved in with her daughter.
The plaintiff further testified that on May 1, 1956, she accompanied her daughter to a medical center in Chicago for a physical examination, and upon her daughter's refusal to submit to an examination, the defendant stamped on his daughter's foot; that she attempted to restrain him, and that he pushed her out of the way; that they went to the street where defendant knocked his daughter in the head and threatened to take care of both of them; that on May 4, 1956, in their home in Crystal Lake the defendant beat his daughter over the head, legs and shoulders with a whip he had purchased for the occasion; and that on May 19, 1956, when she asked defendant if he intended to use the whip any more, he twisted her arm and threw her out of the room and locked the door.
To substantiate her allegation of adultery, the plaintiff testified that on January 25, 1959, she in the company of six detectives went to the defendant's apartment in the Park Dearborn Hotel in Chicago at about 11:50 p.m. She knocked on the door and defendant said, "Just a minute," and in about a minute he opened the door. She walked in first, followed by the men. He tried to push the door back on her but couldn't because these men were behind her. He said, "Get out of here," and swore. He hit her in the ear with his fist, knocking her to the floor. Her husband was swinging at all of the detectives, and they were trying to restrain him. Someone picked her up and she stepped out in the hall. He came out in the hall and again struck her in the temple with his fist.
Plaintiff further testified she had marks on her ear and a lump in the middle of her head and a large black and blue mark on her thigh and her left ear was bleeding.
Plaintiff testified at the time she entered the room that Terry Resch was standing by a table; that her husband's clothing was disheveled; that his shirt was open, and that he was wearing no shoes and no coat. Terry Resch was not related to either of the parties, and she presumed her to be about twenty-five years of age. Terry Resch was dressed but was in her bare feet.
She admitted that she had commenced a suit for divorce in the Superior Court of Cook County on May 24, 1956, charging the defendant with extreme and repeated cruelty and, more particularly, acts of cruelty on May 1, 1956, and May 5, 1956. She admitted that at that time she was aware of the defendant's act of cruelty on May 19, 1956, at the marital residence. She stated that she had obtained a writ of injunction in this case restraining the defendant from striking, beating, molesting, or injuring plaintiff or the minor children and enjoining the defendant from entering the marital residence. This suit was dismissed on about June 23, 1956.
Joseph A. Gruzak testified that he was an employee of the Acme Secret Service and was assigned to follow Joseph Kovac; that on the 30th day of December he saw Mr. Kovac at about 4:30 come out of his office and walk to the Toffenetti Restaurant on Randolph Street; that he remained there about an hour and then took a cab to the Jewel Food Store close to the defendant's apartment building and then walked to his apartment.
The witness testified that on December 31, 1958, he saw Mr. Kovac leave his office at about 1:30 p.m.; that he walked to the Zimmerman Liquor Store and then returned to his office. Mr. Kovac came out again from his office about 4:30 and took a taxicab to the Park Dearborn Hotel; that he next saw Mr. Kovac come out of the elevator in his apartment building at about 7:30, and after having a cup of coffee in the drug store, he went to the Ambassador East Hotel, then returned to the Park Dearborn Hotel about 10:00 p.m.; that at 9:45 witness noticed that a piece of transparent tape he had placed on Mr. Kovac's apartment door was broken; and that on that occasion he heard a woman's voice in Mr. Kovac's apartment which was rather rough and harsh.
Witness testified that at 10:45 Mr. Kovac and Terry Resch left his apartment and took a cab to the Palmer House Hotel; that he, Gruzak, returned to the Park Dearborn about 1:30 on January 1, 1959, and remained on the eighth floor at the stairway; that at 4:00 in the morning Mr. Kovac and this woman came out of the elevator, and he heard the woman say, "This is the first time I have been here this late." She opened the door and they entered the apartment. He went to the door and listened, and heard Mr. Kovac say, "You are beautiful." He heard other muffled voices and words. He placed a piece of Scotch tape on the door and then called his office. He returned to the eighth floor at about 7:30 in the morning and found the tape broken and a "Do not disturb" sign on the door.
Witness Gruzak further testified that he saw Mr. Kovac in company with this woman again on January 10, 1959. At 8:30 that evening Mr. Kovac left the Park Dearborn Hotel, went out the front entrance, entered a white 1958 Lincoln which he drove to the Sheraton Plaza Hotel where he got out of the car with Terry Resch; that they came out of the Sheraton Plaza Hotel at about 9:45 and drove south on Sheridan Road. He saw Mr. Kovac again that night about 12:50 enter the Park Dearborn Hotel and go up to his room alone; that he again saw Mr. Kovac on January 16, 1959, at about 5:30 in the Toffenetti Restaurant, and that he saw Terry Resch in the restaurant where she acted as a hostess and that he heard her voice on that occasion; and that it was the voice he heard at the door of the apartment on a previous occasion.
Walter Stafford, a private investigator also employed by the Acme Secret Service, testified that on January 10, 1959, he arrived at the Park Dearborn Hotel at approximately 7:30 in the morning where he met Joseph Gruzak; that they checked Mr. Kovac's room and found the tape which had been placed on the door the night before was unbroken and that Mr. Kovac came out of his room and went to the Bismarck about 11:45 a.m.; that at about 5:00 the defendant went to the Toffenetti Restaurant on Randolph Street and remained until about 6:00; that he had several short conversations with a woman who appeared to be the hostess or manager.
Mr. Kovac then left the restaurant and returned to his apartment and again left the hotel about 8:30, entered a 1958 Lincoln Sedan, and she moved over and Mr. Kovac got into the driver's seat; that they drove to the Sheraton Plaza Hotel, with the witness following, which they entered and came out again about 9:45.
Witness further testified that on January 24, 1959, he arrived at the Park Dearborn Hotel at approximately 10:50 a.m., and the first person he saw was Terry Resch, the same woman who had been with him the night at the Sheraton Plaza, who came out of the elevator at approximately 11:00 a.m.; and that she walked south to the parking lot and got in the Lincoln Continental automobile, which was the same car, she drove to a parking lot, and went in the Toffenetti Restaurant.
Stafford testified that he returned to the apartment and Mr. Kovac came out of the elevator about noon, got in a cab and went to the Bismarck Hotel; that he left the Bismarck about 2:30 and went to the Toffenetti Restaurant, took a seat at the rear counter, had a few short conversations with Terry Resch, and left about 3:30. About 8:00 Mr. Kovac took a cab to the State Lake Theater, purchased two tickets, and was later joined by Terry Resch.
Witness returned to the hotel at 10:00 that night and saw them enter room 805 at about 10:35. At about midnight he rapped on the door and it was opened by Mr. Kovac; that defendant attempted to strike Mrs. Kovac and succeeded in hitting her with his fist, and she fell to the floor. Terry Resch was also in the room; and that Mr. Kovac had on brown trousers, he was in his stocking feet, his hair was mussed, his shirt was open at the top, possibly three or four buttons. Terry Resch was bare footed, her hair was mussed, and her dress was in disarray, it looked trumpled.
Kovac threatened all of the detectives and said, "I will throw you all out"; that Mrs. Kovac identified her husband; that he struck at Mr. Risberg who was taking a photograph, knocked the camera to the floor, and kicked at it; that about 12:30 Mr. Kovac put Terry Resch in a cab and that the ...