Appeal from the Superior Court of Cook County; the Hon. PHILIP
F. LOCKE, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a decree of divorce, on the grounds of cruelty, entered after a contested trial.
On oral argument defendant raised a question (not covered in his brief) as to the jurisdiction of the trial court. We consider that, because of its character, this point was timely, even though made at so late an hour, and we shall give it first consideration.
Defendant contends that, while the complaint alleges that the parties are residents of Cook County, it does not allege that such residence had continued for a period of one year as required by the Divorce Act (Ill. Rev Stats, c 40, § 3) and that the court, therefore, lacked jurisdiction.
It is true that the language of the statute establishes certain residence requirements as a condition to jurisdiction, but plaintiff's failure to allege the duration of residence is not fatal if the record discloses that the necessary residence facts actually existed. And it does.
There is undisputed testimony by plaintiff that the parties lived in Chicago continuously from the date of their marriage in 1953 until after the date of the last-alleged act of cruelty in 1959, and that plaintiff had resided in Cook County for more than one year prior to the filing of her complaint. This evidence is corroborated by facts appearing in defendant's sworn answer to the complaint.
There is, thus, ample support in the record for the finding in the decree that "the Plaintiff has been, prior to the filing of her Complaint for Divorce in the above entitled cause, an actual resident of Cook County, Illinois for more than one year."
It would have been better practice to have amended the complaint in the trial court to conform it to the proofs on so important a point, but that may also be done in this court, and we shall consider the amendment as having been made on our own motion. (Ill. Rev Stats, c 110, §§ 46, 92(1) (a); Appellate Court Rule 26; Love v. Levisey, 11 Ill. App.2d 531, 137 N.E.2d 869.
The purpose of the amendment is not to create a cause of action by the addition of a jurisdictional fact, but merely, by proper allegation, to show that a cause of action of which the court had jurisdiction, really existed. As stated by this court in Plotnitsky v. Plotnitsky, 241 Ill. App. 166, 171-2:
"The proceeding here was not void; it did not affirmatively appear that there was no cause of action. The defect in the bill was simply in a failure to aver a material jurisdictional fact required by the statute. Had the bill affirmatively stated facts showing that the court where the bill was filed could not acquire jurisdiction, a different question would be presented."
Defendant's primary point on this appeal questions the sufficiency of both allegation and proof of the grounds for divorce, namely, extreme and repeated cruelty. The complaint charges that defendant committed such acts of cruelty on February 4 and on January 1, 1959 "and many times prior thereto." Defendant's answer denied that he was guilty of cruelty to plaintiff "at any time since the marriage."
Plaintiff testified that: on February 4, 1959 defendant beat her with the blade, the side, of his hand and with his fist; he struck her head, her face, her neck, arms and legs; she experienced pain and had large bruises on her arms, legs and hips; her wrists were twisted and swollen; he grabbed her by the hair; he held both wrists with one hand and then twisted her down to the floor; he then hit her with the blade of his hand and fist and when she flattened herself out to protect her hips he drove his knee into her stomach hard. The marks on her body lasted almost two weeks.
Mrs. Guither testified in corroboration that when she saw plaintiff six days later she was limping, had marks on her wrists, and was extremely fearful and nervous.
Plaintiff further testified that: on January 1, 1959 her husband beat her with the hard side of his hand, his fist and his knee; he struck her face, neck, wrists, arms, hips and legs; his nails cut her wrists; she was afraid, suffered pain and cried; her hair was dishevelled, ...