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David v. David

NOVEMBER 4, 1968.

CAROLYN S. DAVID, PLAINTIFF-APPELLEE,

v.

ALBERT DAVID, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. A.F. WELLS, Judge, presiding. Affirmed in part and reversed in part, and remanded with directions.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from a divorce decree in favor of plaintiff, Carolyn David. The decree reserved the question of alimony, directed the husband to pay child support of $60 per week, and awarded the plaintiff a sum of money equal to 33 1/3% of the fair market value of certain stocks and one-third of the fair market value of defendant-husband's profit sharing plan with Sears Roebuck & Company.

The plaintiff-wife originally brought an action for separate maintenance. A hearing was held on July 14, 1966, and on the same day an order was entered by the court requiring the defendant to pay plaintiff $10 per week for temporary support, $40 per week for temporary child support, and $100 for temporary attorney's fees. Three months later, on October 14, 1966, plaintiff was given leave to file a complaint for divorce and on April 10, 1967, she filed a verified amended complaint for divorce. In paragraphs one through seven, inclusive, of her complaint, plaintiff alleged generally that the parties were married on July 26, 1958; that two children were born of the said marriage, Sandra David, age five and Mathew David, age seven; that on April 3, 1966, the defendant struck her without provocation; that in fear of serious injury plaintiff removed herself from the marital home; and that as a result the plaintiff, without fault on her part, has lived separate and apart from the defendant without interruption and continuously for more than one year prior to filing the amended complaint for divorce. The plaintiff alleged in paragraph eight of her complaint that she was without sufficient funds to support herself and the two children and that the defendant was an able-bodied man capable of supplying suitable and sufficient support. In the plaintiff's prayer for relief she requested that in addition to her request for support, that the defendant be required to pay her a sum to be determined by the court representing a portion of the savings the parties acquired during their marital life.

The defendant filed a verified answer to plaintiff's amended complaint, denying only the allegations of paragraph eight of the complaint. The defendant also alleged in his answer that any savings which the parties had during their marital life were solely the result of defendant's employment, and that the plaintiff had not contributed to the savings.

The trial of the case commenced on April 17, 1967, before the court sitting without a jury. Both parties were present and represented by counsel. The plaintiff, called on her own behalf, testified that on April 3, 1966, the defendant "grabbed me by the arm and threw me against the wall and left a bruise on my arm and I hurt my head." The following morning, April 4, 1966, when her husband was leaving for work she told him "that unless we had some kind of . . . counseling or worked out our problems that I was leaving, and he said that if I left, I would go out the door with a knife in my back." The plaintiff then testified that she left the house that day and that she had lived separate and apart as a single person without fault on her part since April 4, 1966.

Virgil Kraft was then called to testify on behalf of the plaintiff. He stated that he was a clergyman associated with the Peoples Church of Chicago and that he had known the parties for between nine and ten years. Reverend Kraft said that on April 3, 1966, the parties scuffled or fought and that the defendant bruised the plaintiff's arm. When asked if the plaintiff gave the defendant any cause or provocation, Reverend Kraft said she had not. He also stated that the plaintiff had been living separate and apart from the defendant since April 4, 1966.

Carole Mosier was the last witness called by the plaintiff. She testified that if she were asked the same questions asked Reverend Kraft, her answers would be the same as those he gave. None of the witnesses were cross-examined and when the court asked defendant's counsel whether they had anything to present by way of defense, the answer was "no."

An order was entered on April 17, 1967, reciting in part that "the defendant not contesting the grounds for divorce, and the Court having heard testimony of witnesses, finds that the plaintiff has presented and proved by sufficient evidence that she is entitled to a Decree of Divorce on the grounds of Desertion and that a Decree of Divorce will be entered accordingly at the time the other matters in dispute are resolved. . . ." After further hearings held on June 13, 1967, and August 4, 1967, a decree was entered on August 7, 1967, granting plaintiff a divorce and finding among other things "[t]hat the defendant has been guilty of desertion of the plaintiff during their marriage, without cause or provocation therefor on the part of the plaintiff. That the defendant struck the plaintiff on April 3, 1966, causing her pain and suffering and threatened her with grievous bodily harm on April 4, 1966." The court also found that the parties had not lived or cohabited together as husband and wife since April 4, 1966.

The defendant-appellant contends that the decree fails on its face to show any ground for divorce, nor does the evidence disclose any such ground. Furthermore, the defendant maintains that since the decree does not find that the defendant wilfully deserted or absented himself from the plaintiff without any reasonable cause for the space of one year, the finding can only be that the defendant is guilty of constructive desertion. The defendant argues that constructive desertion exists only where an innocent spouse leaves a spouse who is guilty of conduct which in and of itself constitutes a ground for divorce. In support of his contention, the defendant cites Coolidge v. Coolidge, 4 Ill. App.2d 205, 124 N.E.2d 1; Bramson v. Bramson, 4 Ill. App.2d 249, 124 N.E.2d 33; and Nusser v. Nusser, 4 Ill. App.2d 538, 124 N.E.2d 549.

In Coolidge, the chancellor entered a decree finding the defendant-husband guilty of cruelty and of constructive desertion. The Appellate Court reversed the decree. The Court found that the three acts of physical cruelty alleged in the plaintiff's amended and supplemental complaint were wholly uncorroborated and declared that the finding of cruelty was not supported by the evidence. Turning to the question of desertion, the Court said that the most the record showed was that the parties quarreled over money, religion and sundry other matters. This, the Court felt, was not sufficient to support the charge of desertion by the plaintiff who physically left the marital home. In the case at bar, however, the plaintiff left her home because the defendant threatened her with bodily harm and had shown by his actions the previous day that he was capable of carrying out his threat. For this reason we do not consider Coolidge to be applicable on the facts. This is also true of the other two cases cited by the defendant on this point.

The defendant feels that "the trial court concluded that one act of physical cruelty and one threat by the defendant constituted such extreme and repeated cruelty as would justify the plaintiff deserting the husband." The defendant apparently overlooks the fact that the divorce decree clearly recites that the defendant was guilty of desertion without cause or provocation on the part of the plaintiff. The threat of April 4, 1966, provides ample support for the conclusion of the trial court that the plaintiff was justified in leaving the marital home because of the actions of her husband and that the defendant was in fact the deserting spouse. Stritar v. Stritar, 48 Ill. App.2d 332, 199 N.E.2d 274; Karman v. Karman, 24 Ill. App.2d 123, 164 N.E.2d 521; Jeffers v. Jeffers, 9 Ill. App.2d 572, 133 N.E.2d 727 (abstract); Mathews v. Mathews, 227 Ill. App. 465; Albee v. Albee, 43 Ill. App. 370, 1961 Ill L Forum 183. Although the defendant was present throughout the divorce proceedings he neither introduced evidence to contest the divorce nor denied he had threatened her with bodily harm on April 4, or that he struck her the day before causing her pain and suffering. We are satisfied that the evidence, although meager, was sufficient to establish that plaintiff had reasonable cause for leaving the defendant and that the court was justified in holding that under the circumstances the defendant was proven guilty of wilfully deserting the plaintiff without reasonable cause for the space of one year as provided in sections 1 and 8 of the Divorce Act (Ill Rev Stats 1967, c 40, pars 1, 8). Also, we find no merit to the contention that there is a fatal variance between the allegation in the complaint for divorce and the proof.

The adjustment of property rights, however, presents a more serious problem. The defendant contends that the trial court erred when it ordered him to pay the plaintiff $4,803 representing 33 1/3% of the average fair market value as of June 13, 1967, of some 346 shares of stock in various named corporations which were in the defendant's name when in the same decree the court reserved the question of alimony. The same error is present, the defendant maintains, in the award of one-third of the average fair market value of defendant's profit sharing plan with Sears Roebuck & Company to the plaintiff.

Section 17 of the Divorce Act (Ill Rev Stats 1967, c 40, § 1 et seq.) provides:

Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled ...


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