Appeal from the Circuit Court of Monroe County; the Hon. ALVIN
H. MAEYS, Judge, presiding. Judgment affirmed.
Plaintiff filed his complaint for divorce in September 1963, charging desertion in September 1961, and alleged that the parties were possessed of 80 acres of land in Monroe County; 2 houses in Dupo, real estate with house and trailer located in Dupo, and a lot with two trailers on Minnie Avenue, in Dupo, and restaurant equipment, all of which, he alleged, "in equity is the plaintiff's property." The prayer of his complaint was for a divorce "and that all duties, rights and claims and obligations be determined and that the Court award plaintiff all real and personal property and that plaintiff have such other and further relief in the premises as equity may require."
Defendant answered, denying the material allegations of the complaint and filed her counterclaim, in which she alleged, that on October 20, 1962, plaintiff deserted her and refused to live with her and persisted in such desertion, three instances of cruelty in April of 1963, lack of means of support or ability to pay attorney fees, the joint ownership of the property "acquired through the joint efforts" of the parties, her ownership of a house and furniture at 222 North 2nd Street acquired by her prior to her marriage, and that plaintiff had since their separation sold livestock and crops jointly owned by the parties and refused to account for her half. She prayed that she be awarded separate maintenance and "a reasonable amount for temporary alimony and a permanent amount of alimony; that she be awarded attorney fees; that she be awarded possession and title to 222 North 2nd Street, Dupo, Illinois, and furniture located at 222 North 2nd Street, Dupo, Illinois; that she be awarded equitable share in the jointly owned 80 acres; 8 acres and the jointly owned trailer and lot in 600 block Minnie Avenue, Dupo, Illinois, and the jointly owned house and trailer and lot at 312 North 3rd, Dupo, Illinois; that James Boyd be required to account for the cattle, hogs and crops sold and that he be required to pay Agnes Boyd one-half of the monies received from the cattle, hogs and crops; that an injunction issue restraining James Boyd from selling cattle, hogs and crops; that Agnes Boyd be granted other and further relief as may be equitable."
Plaintiff answered the counterclaim denying the material allegations, admitted the ownership of the property in joint tenancy, denied that it was acquired by the joint efforts of the parties, denied defendant's ownership of the house and furniture at 222 North 2nd Street, and denied that defendant was entitled to any relief on her counterclaim.
The parties entered into the following stipulation:
"By stipulation it is agreed that James O. Boyd shall put in his evidence as to the question of deserting and following that Agnes Boyd will introduce such evidence as necessary for separate maintenance at which time the question of property settlement and related matters shall be determined and all such latter questions shall be reserved until after evidence of desertion and separate maintenance have been introduced and that all testimony with respect to the divorce, separate maintenance and income can stand as to all issues in the plaintiff's case and in the countercomplaint for separate maintenance."
The trial court found that the parties placed before the court the issue of equitable division and adjustment of their property rights, that the equities were with defendant who had proved her counterclaim and that plaintiff had failed to prove the allegations of his complaint for divorce. The decree dismissed the divorce complaint, awarded defendant separate maintenance and ordered plaintiff to pay $200 per month for benefit of defendant, awarded defendant all the real estate except the 80-acre farm and all personal property not awarded to plaintiff. The decree ordered plaintiff to pay all back taxes on the real estate at 222 North 2nd Street and any other back taxes, to pay all outstanding indebtedness of the parties incurred prior to May 4, 1964, except the indebtedness on a 1964 Ford and indebtedness on the 8-acre tract; plaintiff having prior to trial, conveyed his interest in the 8-acre tract to the daughter of the parties. Plaintiff was awarded the 80-acre farm, a 1955 Chevrolet, a 1955 pick-up truck, all farm equipment, livestock and poultry on the 80-acre farm, and items of furniture on that farm except those owned by defendant at the time of this marriage, and other items of furniture which had been previously regarded as defendant's, and provided that both the real and personal property awarded plaintiff should be subject to a lien for the payment of back taxes and indebtedness to be paid by him. The decree allowed defendant 15 days to recover her furniture from the 80-acre farm, and enjoined each of the parties from going upon the other's property, that plaintiff execute the necessary deeds and documents, and that each party pay his own costs and attorney fees.
The evidence showed that the parties had married in 1941, had one child who was married and not dependent upon them, and had until September of 1961 resided on the 80-acre farm. Plaintiff was a locomotive engineer and for the past two years had earnings from his employment in excess of $10,000 per year. In September of 1961 the parties bought a restaurant in Cahokia which defendant operated. Plaintiff helped in the restaurant when not at work on the railroad, until October 1962. There was a conflict of evidence as to whether he wanted her to operate the restaurant, or whether she bought it to get away from the farm; the daughter testified that from September 1961 to October 1962 the parties lived together in Dupo and at the farm, and that after October 1962, defendant continued to go to the farm, 25 miles away, and care for the livestock when plaintiff was gone. Defendant's testimony of cruelty and plaintiff's threats to kill her, denied by plaintiff, were supported by evidence other than her own. The evidence is conclusive that since October 20, 1962, the parties had not lived a normal married life, and that defendant tried to return to the plaintiff but was rejected; he testified, "I would not have taken her back because I am getting out of it." There was no reconciliation of the parties. There was evidence of a severe illness of plaintiff from which he had recovered, and there was evidence that defendant's condition of health was such that she was unable to continue in the restaurant business.
Plaintiff's principal contentions are that the court erred in dismissing plaintiff's complaint for divorce, in awarding defendant separate maintenance, and that the trial court was without jurisdiction to adjudicate the property rights of the parties.
Plaintiff cites Deenis v. Deenis, 65 Ill. 167, in support of his contention that defendant's right to separate maintenance ceased on resumption of cohabitation or other condonation of the offense giving rise to the allowance. In that case the wife continued to live with her husband for four years after full knowledge of the fact giving rise to separate maintenance. In the instant case, the evidence bears out defendant's contention that she tried to resume cohabitation but plaintiff always rejected her attempts at reconciliation. Before a defendant's absence may be made the basis for a divorce on grounds of desertion, it must be clear that it is against the will of plaintiff. Karman v. Karman, 24 Ill. App.2d 123, 164 N.E.2d 521. In the case at bar, the plaintiff made no attempt at reconciliation, and the living separate and apart was not against his will. The trial court properly dismissed plaintiff's divorce action.
We now consider the separate maintenance suit filed by defendant. There is conflicting evidence as to who was the deserter and whether such desertion was voluntary, by consent or otherwise. Absence from the domicile with the intention to return is not desertion. Kennedy v. Kennedy, 87 Ill. 250. Whatever the reason or cause of the separation, we conclude from the evidence that these parties have been living separate and apart; that since the separation, the defendant has made numerous attempts to live with her husband but he has always rebuffed such attempts. In Coolidge v. Coolidge, 13 Ill. App.2d 170, 141 N.E.2d 636, the court stated that regardless of the cause of the original separation of husband and wife, the wife would be entitled to separate maintenance if she made bona fide offers to return to the family home, which were refused by husband. In the instant case, not only did the plaintiff reject the offers but on at least two occasions, the plaintiff committed acts of violence upon the defendant. The plaintiff denies such acts of violence but it has been held that even though the evidence is conflicting, but there is evidence which if believed, warranted the trial court to find that the parties lived separate and apart because of the husband's extreme and repeated cruelty, such finding will not be disturbed. Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201.
It was primarily for the trial court to consider and determine the weight and sufficiency of the evidence and credibility of the witnesses. Krueger v. Krueger, 47 Ill. App.2d 134, 197 N.E.2d 858. The ruling of the trial court cannot be said to be contrary to the manifest weight of evidence and its findings as to separate maintenance will not be disturbed.
[6-8] The record shows that the rule as to determining alimony or support as set out in Goldstine v. Goldstine, 25 Ill. App.2d 319, 167 N.E.2d 30, was followed, and the allowance as set by the trial court was not an abuse of its discretion. Plaintiff was 67 years of age and contends that he will be forced to retire in the immediate future, and will then receive only $190 per month, instead of his earnings in excess of $10,000 per year as a locomotive engineer. Adequate provision is made for modification of decrees in the event of a change of condition affecting the ability to pay support.
It is plaintiff's contention that the trial court was without jurisdiction to adjudicate the property rights of the parties. Both parties to this suit have cited many authorities in support of their contention. Since action for separate maintenance is purely statutory and the statute is silent as to property rights, it became a general rule that courts had no right to adjudicate property rights in a separate maintenance suit. One of the first exceptions to this rule was Glennon v. Glennon, 299 Ill. App. 13, 19 N.E.2d 412, in which the court said that under the liberal provisions of the Civil Practice Act, a wife or husband who seeks separate maintenance may have her or his property rights adjudicated in that action. In Petta v. Petta, 321 Ill. App. 512, 53 N.E.2d 324, the court impliedly overruled the Glennon case, in a decision concurred in by two of the three judges who decided the Glennon case. There the court said, at page 519, that if the ...