Appeal from the Circuit Court of Lake County; the Hon. MINARD
E. HULSE, Judge, presiding. Affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Three separate appeals have been taken in the divorce action now pending before the trial court, by the defendant, Daniel Roback, which have been consolidated by this court for determination. The first appeal, (Number 64-25) is from the order allowing temporary alimony, child support and attorneys' fees; the second, (Number 64-64) from the order allowing to the plaintiff, attorneys' fees and expenses to defend the first appeal; the last, (Number 64-119) from the order finding the defendant in contempt for wilful failure to comply with the prior orders of the court. The defendant has appealed from all orders of substance entered in the case and, even though the complaint was filed in December, 1963, the case has not yet been heard on its merits.
We will first consider the propriety of the award of temporary alimony, child support and attorneys' fees. The genesis of this litigious action was the complaint filed by Louise Roback for separate maintenance, or, in the alternative, for divorce based upon extreme and repeated cruelty. The last act of cruelty was alleged to have occurred December 13, 1963, and the prior acts in 1955, 1951 and 1949. The plaintiff had, in connection with at least two of the prior acts of cruelty, either commenced divorce proceedings or consulted a lawyer with respect thereto.
[1-3] The defendant first contends that the order allowing temporary support and attorneys' fees was improper because the parties were living together when the complaint was filed and, hence, it was not filed in good faith. There is no doubt that an award for temporary relief may not be made unless the complaint was filed in good faith. Anderson v. Steger, 173 Ill. 112, 118, 50 N.E. 665 (1898); McAdams v. McAdams, 267 Ill. App. 124, 129 (1st Dist 1932); sections 13 and 15, Divorce Act (Ill. Rev Stats 1963, c 40, pars 14 and 16). This does not mean, however, that the court may inquire into the merits of the action and the likelihood of whether the plaintiff will prevail in determining whether temporary relief may be granted, but only that the court must satisfy itself that the complaint was filed in good faith and that there was probable cause or grounds for divorce. Cooper v. Cooper, 185 Ill. 163, 171, 56 N.E. 1059 (1900); Jenkins v. Jenkins, 91 Ill. 167, 168 (1878); People v. Mehan, 198 Ill. App. 300, 304, 305 (1st Dist. 1916).
In the case at bar, the fact that the parties were living under one roof did not indicate that the complaint was filed in bad faith. However, in actions for separate maintenance and in actions for divorce based upon desertion, where the element of living apart is essential to establish probable cause or grounds on which to base the action, the fact that the parties live together under one roof may, under certain circumstances, indicate an absence of good faith in the filing of such action. Here, the plaintiff filed complaint in the alternative, for separate maintenance or divorce, and upon the filing of a motion to dismiss, voluntarily dismissed the separate maintenance action. Had separate maintenance been the sole relief sought, defendant's argument might have merit, but it is no answer to the complaint for divorce based upon cruelty. Collinet v. Collinet, 31 Ill. App.2d 72, 78, 175 N.E.2d 659 (1st Dist 1961); Rasgaitis v. Rasgaitis, 347 Ill. App. 477, 482, 107 N.E.2d 273 (1st Dist 1952).
As a part of this argument, the defendant suggests that there was a lack of good faith because there was a condonation in that the parties resided in the same house. At the outset, we state that if the complaint survives a motion to dismiss, condonation is then an affirmative defense to be pleaded and proven by the defendant. McGaughy v. McGaughy, 410 Ill. 596, 600, 102 N.E.2d 806 (1952); Collinet v. Collinet, supra.
The court must then determine the validity of such defense upon a hearing of the case on the merits, and condonation is not a defense to the allowance of temporary relief where the plaintiff need only establish good faith by showing probable grounds or cause for divorce.
Further, the facts set forth in the record do not establish condonation as a matter of law. While plaintiff and defendant lived under the same roof after the last act of cruelty on December 13, 1963, and up to and beyond the date the complaint was filed, the plaintiff testified she had not occupied the same bedroom as defendant for many weeks prior to the date the complaint was filed. She testified she last had sexual relations with the defendant in August, 1963; and the defendant testified that the last act was in October, 1963. Elsewhere the defendant testified that since the inception of this action the plaintiff had been completely cold, had brushed him aside and had not even served him food.
In Rasgaitis, supra, the court, in a thorough analysis of the meaning of condonation, pointed out that it is a question of intent and involves a full and free forgiveness of an offense upon the condition it will not be repeated; and that cohabitation does not necessarily imply the resumption of full marital or sexual relations. At page 481, the court stated:
"The Illinois Supreme Court has held that even an act of intercourse does not necessarily constitute condonation when it is not accompanied by an intent to resume the marital relation in full. Kennedy v. Kennedy, 87 Ill. 250; and in Teal v. Teal, 324 Ill. 207, the court held that condonation would not be found as a matter of law, even though the parties continued to live together right up to the filing of the bill; that cohabitation, the living together as husband and wife, although evidence of condonation, is not conclusive evidence thereof. Condonation, said the court, `depends upon the intention of the injured person to forgive the offender, to overlook the wrong and to continue or renew the conjugal relation.' Teal v. Teal, supra, p 220."
It is apparent from the record, that the purported cohabitation of plaintiff and defendant after the last alleged act of cruelty was an act of convenience or, more accurately stated, an act of necessity, for plaintiff was without funds and had no other place to live. Such cohabitation was not accompanied by actions or words evidencing forgiveness and was not a condonation of the cruelty charged. McGaughy v. McGaughy, supra. Nor will the fact that there might have been a condonation of the earlier acts of cruelty, justify a finding that plaintiff did not file her complaint in good faith. As stated above, condonation is the forgiveness of an offense on the condition it will not be repeated, and if repeated, the earlier offenses are then revived. Teal v. Teal, 324 Ill. 207, 215, 216, 155 N.E. 28 (1927); Jones v. Jones, 13 Ill. App.2d 198, 201, 141 N.E.2d 408 (1st Dist 1957). There was no condonation of the last act under the record here before us, and the earlier acts of cruelty were thus revived.
The defendant also contends that the alleged acts of cruelty do not constitute cruelty as required under the Divorce Act. This argument is apparently again directed to the contention that the complaint was not filed in good faith. It is true that, as abstracted, the complaint does not appear to allege either that the acts of cruelty caused pain or suffering to plaintiff, or that she was in fear for her safety, or that she gave no cause or provocation for the acts. However, from an examination of the record, we find that all of these allegations were contained in the complaint. Further, they were substantiated by her deposition wherein she testified that on one occasion the defendant threw her to the floor and choked her; that at another time he threw her down on a cement floor, slugged her with his fists, and forcibly raised and pushed her head down on the cement floor, after which she went to, and was treated by, a doctor; and that on another occasion while using vile language, he twice shoved plaintiff against a wall with sufficient force to draw blood and leave marks on her which were still visible approximately one month later.
While there are some cases, as defendant points out, which have set forth that slight acts of violence, or those which are not grave or endanger life or limb, do not constitute cruelty under the Divorce Act, the Supreme Court more liberally defined the meaning of cruelty in Tuyls v. Tuyls, 21 Ill.2d 192, 171 N.E.2d 779 (1961) where it stated at page 195: "To establish cruelty within the meaning of our Divorce Act . . . it is necessary to prove by a preponderance of the evidence that the guilty party has on at least two separate occasions committed acts of physical violence against his spouse resulting in pain and bodily harm. . . ." We do not believe that any of the acts of cruelty described in the complaint or enumerated by plaintiff in her deposition, reflect an absence of probable cause or grounds for divorce. Collinet v. Collinet, 31 Ill. App.2d 72, 77, 175 N.E.2d 659 (1st Dist 1961).
[9-11] As to the amount of temporary support for the plaintiff and her two children, both parties are in accord as to the legal principles which are controlling, but the defendant contends that the order entered by the chancellor was an abuse of discretion and a deliberate pauperization of him. The amount to be awarded as temporary support pending the suit should be controlled by the necessities of the wife as shown by the circumstances, and by the financial ability of the husband to make the necessary contributions to the end that in the prosecution of her suit she shall be placed upon an equality with him. The amount of the award is not limited solely by the husband's income, but the amount of property possessed by him may also be taken into consideration. Upon review, this court will refuse to set aside the order of the ...