Appeal from the Circuit Court of Jefferson County, Second
Judicial Circuit; the Hon. BRUCE SAXE, Judge, presiding. Affirmed
in part, reversed in part, and remanded with directions.
Plaintiff appeals from a decree of the Circuit Court of Jefferson County, Illinois, in her favor in a divorce case, claiming that the alimony and support awarded her was unreasonably low and that the trial court erred in depriving her of all interest in her husband's real property.
Plaintiff, Mardella Klebba, brought an action for separate maintenance against her husband, B.A. Klebba, on February 5, 1962. He filed an answer and counterclaimed for divorce. While this suit was pending, the parties agreed to attempt a reconciliation and thereupon filed a written stipulation under section 21.2 of chapter 40 of Ill Rev Stats 1961, which provides:
"During the pendency of any suit for divorce, the Court shall, upon the written stipulation of both the husband and the wife that they desire to attempt a reconciliation, enter an order suspending any or all orders and proceedings for such time as the Court in its discretion may determine advisable under the circumstances so as to permit the parties to attempt such reconciliation without prejudice to their respective rights. During the period of such suspension the parties may resume living together as husband and wife and their acts and conduct in so doing shall not be deemed a condonation of any prior misconduct. Such suspension shall be revoked upon motion of either party, by order of the Court."
The trial court suspended the proceedings; however, on May 17, 1967, the defendant, B.A. Klebba, filed a motion under section 21.2, supra, to revoke the suspension and for a hearing upon his counterclaim for divorce. Plaintiff filed an amended complaint for divorce on June 14, 1967, and a hearing was held on August 24, 1967. Upon the motion of defendant, the testimony presented at the 1962 hearing was allowed for consideration without objection of the plaintiff.
The parties were married on September 10, 1950, and resided on a farm from the time of the marriage until their separation in April of 1967. They had also been separated for approximately two months in 1962 when this action was originally commenced. Three children were born of the marriage, namely, Bennie Leroy Klebba, age 12, Billy Roy Klebba, age 10 and Byford Lynn Klebba, age 6. The farm home is located on a 67-acre tract of land of which five acres is taken up by the home and barnyard. The plaintiff has lived in this home since the date of marriage and all three children were raised there. During each separation, the plaintiff has continued to occupy the homestead with the children as their residence.
On September 20, 1967, the trial court entered a decree awarding plaintiff a divorce on the grounds of extreme and repeated cruelty. She was given custody of the two youngest children and support of each child at $50 per month, with $60 per month alimony awarded to the plaintiff. The decree also awarded plaintiff the defendant's automobile, the household furnishings in the residence, and the use of the homestead until October 30, 1967. Plaintiff was denied any claim or interest against or in the separate property of defendant, including all rights of dower and homestead.
[1-3] Plaintiff contends that the trial court erred in depriving her of the homestead and requiring that she vacate it not later than October 30, 1967. In Rock Island Bank & Trust Co. v. Lamont, 361 Ill. 432, 198 N.E. 430, the court said that three conditions must exist under the Homestead Exemption Act in order that a homestead estate be created: "(1) The claimant must be a householder; (2) he must have a family; and (3) the premises must be occupied as a residence." The husband, because he is recognized as the head of the family, is normally treated as owning the homestead. Johnson v. Muntz, 364 Ill. 482, 4 N.E.2d 826. However, where a husband deserts his wife or where she obtains a divorce and the custody of the children, she becomes the head of a family and the homestead right passes to her. Maher v. Goff, 316 Ill. 605, 147 N.E. 427. In the present case plaintiff has been found to be the innocent spouse, she has been awarded custody of the two youngest children, and she has never ceased to occupy the farm as her residence. This set of circumstances entitles plaintiff to the homestead even though title to the property is vested in defendant. Bonnell v. Smith, 53 Ill. 375.
Section 5 of the Homestead Act (Ill Rev Stats 1967, c 52, § 5) states: "In case of divorce, the court granting the divorce may dispose of the homestead estate according to the equities of the case." Under this grant of authority, it has been held that it is within the power of the court to grant the right to occupy the homestead property to either party. Hitchcock v. Hitchcock, 373 Ill. 352, 26 N.E.2d 108, cert den 311 U.S. 651. Thus the court may award the right to occupy the homestead to the party into whose custody the children are given, even though the title thereto is in the name of the other party. Redfern v. Redfern, 38 Ill. 509; Jolliff v. Jolliff, 32 Ill. 527.
Section 5, supra, can be completely understood only when read with section 16 of chapter 68 of Ill Rev Stats 1967, which provides:
"Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family. . . ."
The court in Bailey v. Hamilton, 337 Ill. 617, 169 N.E. 743, declared:
"By her marriage and residence on the premises in question here, appellant Evelyn Bailey acquired the right to occupy them as her homestead. Her husband could not deprive her of that right without her consent. He could not require her to remove from those premises without providing a homestead suitable to her station in life in its stead. The law recognizes the rights of husband and wife in this respect as co-ordinate, and has declared by statute that where a homestead exists neither can change the residence of the other from that homestead without such other's consent or unless another suitable homestead is provided."
[5-7] The discretion authorized by section 5, supra, thus does not allow a court to arbitrarily deprive a wife of her right to the continuity of a home. The purpose of the Homestead Act is to insure to the family the possession and enjoyment of a home. If a court through the adjustment of the equities of a particular case finds it necessary to deprive a wife of homestead even though she is the innocent spouse, is the head of a family, and has always used the homestead as a residence, he must adequately compensate her for such loss so that she may find another home. ...