Appeal from the Fourth Judicial Circuit Court of Fayette
County; the Hon. RAYMOND O. HORN, Judge, presiding. Decree
This is an appeal by the defendant from a decree of the Circuit Court of Fayette County granting plaintiff a divorce in a contested, non-jury trial.
Plaintiff sued defendant for divorce on the ground of desertion. The defendant counterclaimed for certain monthly support payments due under a settlement agreement. The court decreed the divorce sought by plaintiff and allowed the counterclaim sought by the defendant. No cross appeal has been taken on the judgment entered on the counterclaim. No questions are raised on the pleadings.
Plaintiff's theory is that defendant wilfully deserted plaintiff without reasonable cause for the space of more than one year prior to the filing of the complaint and that the trial court's finding of fact is reasonably supported by the evidence and therefore the decree for divorce granted to plaintiff should be affirmed.
Defendant's theory is that the parties separated by mutual agreement and that the trial court's finding that the separation resulted from a desertion of the plaintiff by the defendant, is contrary to the manifest weight of the evidence in the case.
Plaintiff and defendant were married in June of 1931. With the exception of a brief separation in 1961, they lived together until February of 1963. Three children were born of the marriage, two of whom were adults and living separate and apart from their parents at the time of the filing of the complaint for divorce in this case. A minor son married after the filing of the complaint and was living with his wife in Brownstown, Illinois, at the time of the trial.
In February, 1963, the defendant moved out of the bedroom which she had jointly occupied with plaintiff, into a separate room in the house. Plaintiff testified that he came home one evening and asked his wife to accompany him to the Holiday Inn in Effingham for dinner. When she refused his invitation, he changed clothes and went to the Holiday Inn for dinner, returning home at 9:30 in the evening. The next day he came home for lunch, but finding his wife gone, went back uptown, ate and worked around the garage until the middle of the afternoon. He then returned home and asked his wife where she had been. She replied, "Well, I have been to see my attorney."
Plaintiff testified that since then his wife has refused to have any marital relations with him; that she refused to prepare meals for him; that she refused to take care of his clothes or laundry and that this refusal continued even though he had asked her to be a wife to him; that she refused to do anything for him; refused to feed him although she provided for their son, John; that she kept the rest of the house clean but not the plaintiff's quarters; that when their daughter was in the hospital in Chicago he went to see her, and spent the night in the daughter's home with his son-in-law. At that time he called his wife who was then in Chicago to ask her to go to dinner with him and their son-in-law, but she refused.
He further testified that in February of 1963 he and his wife were partners in a garage business and that after this difficulty she consulted a lawyer regarding a property settlement. She refused to talk with him except in the presence of an attorney. The talks they had in the presence of his attorney and her attorney concerning a property settlement culminated in the signing of an agreement on October 1, 1963, styled "Property Settlement Agreement." Under the terms of this instrument plaintiff obtained certain real and personal property and the defendant certain real and personal property including the marital home. The agreement further provided that the plaintiff pay to the defendant the sum of $75 per month for the support of their minor child for so long as the minor child resided with defendant and for the further sum of $200 per month for the separate support and maintenance of the defendant. It further provided:
In the event a decree for divorce shall hereafter be decreed by any court of competent jurisdiction, that part of this agreement relating to the division of the property and which may not have been fully executed by said date, shall be made a part of said decree; but the provisions herein for support of the wife and child shall not be a part of said decree nor be binding upon either party hereto in the determination of such matters.
After this agreement was entered into the plaintiff moved into an apartment over his garage which he had previously furnished because he said he no longer had a home.
Defendant denied plaintiff had requested her to have dinner with him at the Holiday Inn in February of 1963 and denied that she had told him she had been to see her lawyer on the day following this supposed incident. When asked if she had moved into a separate bedroom in the month of February, 1963, defendant answered, "There is several bedrooms in the house and I choose my own bed." She admitted that she had not had marital relations with her husband from February until the time of the trial in April of 1965 and further stated that she never did tell her husband why she had changed bedrooms. She explained her actions by saying, "I would just say I had visited my lawyer and I had talked to him about business relations, not personal matters, and I felt it was better, that I could be more comfortable somewhere else." She denied doing this on legal advice, saying, "No, I had simply visited a lawyer about the business end, in which we were partners, and I just felt that with that discussion going on I would just rather be in another part of the house." When pressed further on this point, she said, "It's my house, I could sleep where I wanted to." She did not remember whether it was before or after she saw her attorney that she moved out of the marital bedroom.
She testified that although she and her husband occupied separate bedrooms that she and her son and her husband lived in the same home; that she cooked the meals and that she did part of the laundry and a maid did part of it; that the husband sometimes joined them in the evening meal and that aside from sleeping with him, their marital arrangement was the same as it had been before. She further testified that the business problems existing between herself and her husband in the spring of 1963 were settled when the "Property Settlement Agreement" was signed on October 1, 1963.
The plaintiff has desired a resumption of the marital relationship at all times since the separation. On the other hand, the defendant has desired just the opposite, saying, "I refused to cohabit with my husband after February of 1963, because I just didn't want to, and still don't. I have not wanted to live with him since that date. I have made no effort to resume marital ...