Appeal from the Circuit Court of Bureau County; the Hon.
HOWARD C. RYAN, Judge, presiding. Reversed and remanded.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The plaintiff, Marcella Stanard, brought this suit for divorce against the defendant, Rhymon Stanard, on grounds of desertion and mental cruelty. The matter was heard by the trial court, which denied the divorce on grounds of desertion, but granted it on the charge of mental cruelty. The defendant appealed from the decree for divorce.
He contends that the complaint was not sufficient to state a cause of action on the grounds of mental cruelty, and that the decree granting the divorce on such grounds was contrary to the manifest weight of the evidence.
An answer was filed by the defendant, which denied the material allegations of Count I of the complaint which charged desertion; and he filed a motion to dismiss Count II of the complaint which alleged mental cruelty. Subsequently, he filed an amended motion to dismiss this count. These motions set forth as grounds for dismissal: (1) that this count was insufficient at law; (2) that it did not state a cause of action; (3) that the allegations contained therein were vague and uncertain with respect to dates and did not constitute grounds for divorce; and (4) that the matters raised therein were res adjudicata. The motions were denied and the defendant did not file an answer to Count II of the amended complaint.
In this court, the defendant charges that the complaint was defective in that it did not allege the effect of the acts of which the plaintiff complained, and that the acts of the defendant were without provocation.
Under the provisions of section 45 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 45(2)), the defendant's motion to dismiss Count II of the complaint should have specified the manner in which the complaint was insufficient. Markovits v. Markovits, 2 Ill.2d 303, 308, 309, 118 N.E.2d 255 (1954); Danville Producers Dairy v. Preferred Risk Mut. Ins. Co., 33 Ill. App.2d 359, 361, 362, 179 N.E.2d 439 (1961).
The defendant did not allege in his motion that the complaint was defective in failing to allege either the effect of the acts of the defendant or the absence of provocation. These issues were not presented to the trial court by motion because of the defendant's failure to specifically point out the defects complained of.
Count II of the complaint sets forth seventeen specific incidents purporting to represent extreme and repeated mental cruelty towards the plaintiff by the defendant. The complaint neither specifically sets forth the absence of provocation, nor the cumulative effect upon the plaintiff of these various alleged acts. Absent a total failure to state a cause of action, the defects, of which the defendant complained with reference to the plaintiff's complaint for divorce on the grounds of mental cruelty, were waived by him because he did not properly object to the sufficiency of these allegations in his motions. Bremer v. Bremer, 4 Ill.2d 190, 192, 122 N.E.2d 794 (1954); Wilson v. Wilson, 56 Ill. App.2d 187, 192, 193, 205 N.E.2d 636 (1965); Grizzard v. Matthew Chevrolet, 39 Ill. App.2d 9, 17, 188 N.E.2d 59 (1963).
This is not the first divorce action between the parties. The plaintiff sought, but was denied, a divorce from the defendant in February, 1965. The parties have not lived together since that date.
The plaintiff was the only witness on the issue of mental cruelty. She testified on both direct and cross-examination. The defendant did not present any evidence. On direct examination, the plaintiff testified to the following incidents:
On Memorial Day, 1966, one of the children had measles and she told the defendant he could not have the children on that occasion; that he became angry, swore at her and talked to her in a "very, very, dirty manner";
On an occasion at the Elks Club when she was having dinner with two ladies, the defendant came over and asked in a loud tone if she was not out kind of late; started talking about the children, and then started using vile language, cussing and swearing;
The defendant would drink to excess, and when he came home he would talk loud, cause fights and swear, and on these occasions he would also bring home a steak for himself, prepare it, and then go to bed;
In 1964 and 1965, the defendant played poker, went to the golf course and to the races enjoyed all recreational activities alone; that shortly after this, ...