Appeal from the Circuit Court of Madison County; the Hon.
HOWARD LEE WHITE, Judge, presiding. Judgment affirmed.
CRAVEN, P.J., DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 23, 1970.
This is an appeal from a decree granting a divorce to plaintiff, Suzanne Haring, against defendant, Calvin Frederick Haring, Jr., on the grounds of extreme and repeated physical cruelty and awarding her custody of the children, certain property and child support.
Defendant-husband, in his answer to the complaint, denied that the plaintiff-wife had a cause of action and pleaded recrimination as an affirmative defense. During the trial this affirmative defense was amended to specifically allege that plaintiff was guilty of adultery with one Robert McLean and also was guilty of extreme and repeated mental cruelty during the time in that she kept company with Robert McLean over her husband's objections.
A petition for temporary alimony, child support, solicitors' fees and costs was filed by plaintiff. Thereafter, defendant filed a motion for summary judgment. The motion for summary judgment was denied, the court holding that there were disputed facts. The case was heard on the merits by the court without a jury. The court found the issues in favor of the plaintiff and against the defendant and granted plaintiff the divorce on the grounds of extreme and repeated physical cruelty on the part of the defendant.
In this appeal defendant contends that the evidence and the law do not support the trial court's finding of extreme and repeated physical cruelty nor its finding against defendant on the defense of recrimination. He also contends that the trial court failed to rule correctly on certain objections to evidence and upon defendant's motion for summary judgment.
Plaintiff, Suzanne Haring, aged 28 years, and Calvin Haring, aged 29 years, were married September 7, 1957. Three children were born of the marriage, Ricky, aged 9 1/2 years, Robie, aged 8 years, and Mark, aged 6 years.
Plaintiff testified that while on a trip to the Ozarks on September 1, 1968, defendant pushed her against the door frame of a cottage, causing pain in her right side and injuring her face. This testimony was corroborated by the testimony of Della McLean and Robert C. McLean, Jr., friends, who were present on the trip. Both Della and Robert McLean testified that on this occasion, plaintiff was crying and had a bruise on the side of her head and stated that her husband had shoved her into the door molding. Defendant, called under section 60 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 60), admitted that upon this occasion he forced his wife against the cabin wall, causing a red mark on her face, but stated he did it in defense of himself.
As a second act of physical cruelty, plaintiff testified that on September 3, 1968, after she had refused to accompany defendant on a search for a trailer hitch for his car, defendant hit her on the face, around the temple, which caused a bruise. He then picked her up by the neck and threw her on the bed. She testified that he then came at her with a knife, pushed her on the floor, held the knife next to her neck and said he was going to take her life and his own. This testimony also was corroborated by the testimony of Della McLean, whose house plaintiff visited that day. Della McLean testified that plaintiff had a bruise by her temple and a black-and-blue lip, as well as a bruise on one of her arms, and that plaintiff told her that her husband had beaten her that morning and threatened her with a butcher knife.
On his direct testimony, in defense, defendant testified that before he pushed plaintiff into the wall on the September 1 occasion she had slammed the cabin door in his face and hit him on the arm and chest. He also testified that on the September 3 occasion she hit him in the face and hand and kicked him. There was no corroboration of defendant's testimony as to these acts by any other witness.
Some ten witnesses, other than defendant, testified for defendant, including defendant's mother, brother, the brother's wife, and the two older children of the parties. Several of these witnesses were neighbors who lived near the Haring home. These witnesses testified to the general conduct of defendant around the home helping in the housework and being a good husband.
Further, several of these neighbor-witnesses testified that Bob McLean had visited the Haring home many times when defendant was away at work and that his car was there on many occasions when defendant and the children were away. One of these witnesses, a neighbor, Helen Marcus, testified that there were occasions where Bob McLean was at the Haring house and the youngest child, Mark, would come to her house and say, "Mommy has locked me out of the house." Another neighbor, Gladys Winter, testified that on eight or ten occasions she had seen Bob McLean come out of the Haring home, alone, when defendant was not at home. Other witnesses testified to somewhat the same effect.
The two older children of the parties were called as witnesses by defendant. Ricky, aged 9 1/2 years, testified that he had seen Bob McLean kissing his mother at the Haring home when his father was not present; that he saw Bob McLean come out of his parents' bedroom on one occasion; and that he had been locked out of the home on two or three occasions when Bob McLean was there and his father was gone.
Robie, aged 8 years, testified that on one occasion he saw Bob McLean and his mother kissing in the kitchen; that on occasions Bob McLean's car was at their house; that one time when he was walking in the hall of his house, Bob McLean came out of the bedroom and he saw his mother get off the bed; and that he ...