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Dubinka v. Dubinka

JUNE 26, 1970.

ALEXANDER DUBINKA, PLAINTIFF AND COUNTERDEFENDANT, APPELLEE,

v.

THERESA DUBINKA, DEFENDANT AND COUNTERPLAINTIFF, APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. RAYMOND DRYMALSKI, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT. Theresa Dubinka, defendant, appeals from a decree for divorce in favor of Alexander Dubinka, plaintiff, on the grounds of adultery and desertion. *fn1 The decree also granted custody of their son and an award for his support to Theresa Dubinka, but barred her from alimony, dower and all other rights arising from the marriage and dismissed her complaint for want of equity.

The issue presented for review is whether the decree is against the manifest weight of the evidence.

EVIDENCE

THERESA DUBINKA, called as a witness on her own behalf, testified:

She married plaintiff on April 21, 1951, and their son was born on March 15, 1952. During the last year of the marriage (1965), the plaintiff would either arrive home between 11:00 p.m. and 2:00 a.m. or 3:00 a.m., or sometimes not at all. His office closed at 5:00 p.m., but he would patronize taverns. Initially, there were "no regular intervals," but after five years of marriage he embarked upon a course of conduct that commenced with one night a week which he selected as his night off. Plaintiff gradually enlarged it to two nights and eventually five nights a week.

Plaintiff would telephone her occasionally as he did once in 1965. When he called, she could hear music in the background, glasses clinking and "he would just talk silly." Occasionally, plaintiff would put someone else on the phone and they "talked just silly, like, drunk like." When plaintiff did arrive home, he would grope his way to the couch and stay there until morning. He drank constantly which made him stagger and slur his speech, while "ordinarily he is a dignified man." Sometimes, when plaintiff was no longer sleeping in her bedroom, he would come in the room, turn on the lights and make noises. At the time of the trial, they had been separated about a year and a half. On one occasion plaintiff brought two friends home. He and his friends laughed, giggled and played cards all night. However, plaintiff went to work in the morning.

As a result of this conduct, she became very ill, extremely nervous and lost weight. She had no appetite and experienced dizzy spells. She received medical treatment for over a year and is still taking medicine.

Their son never saw his father during the week. On Saturday, plaintiff would sleep all day and would never take their son or her out. On April 16, 1965, he called and advised her that he had moved out. Plaintiff also stated that he was selling the automobile which was her property, but was in his name. She never gave plaintiff cause to leave.

Cross-examination revealed:

When she met her husband, he was an assistant manager for a small loan company. After their marriage, he became a manager at another loan company, eventually attaining the position of sales manager which required that he entertain customers. For more than a year before plaintiff left her, he never took her any place. However, she learned to play bridge and visited Lake Geneva with a girl friend.

She met a Mr. Cipriani during a visit to the library. The next time she met Cipriani was in a restaurant where they had coffee. She also met him at Lake Geneva during the summer before she and plaintiff separated. She did not recall how many times she visited Cipriani's apartment. Once she was alone in his apartment with him, but could not remember the latest hour she ever remained. She denied ever spending the night with him. She would visit Cipriani's apartment for the purpose of baby-sitting for his three children. She was not paid, but since Cipriani was an artist, he gave her pictures. She could not remember what time it was when she would depart, but she would arrive during the dinner hour, usually at 6:00 p.m.

She did not object to her husband bringing his friends to their home to play cards. Previous to his leaving her, he took her and their son on a motor trip. Plaintiff's bed was removed from the bedroom to the porch with his consent. When the bed was removed to the basement, he slept on the couch, which he did even before the bed was removed.

NANCY JACK, called as a witness on behalf of Mrs. Dubinka, testified:

She has known defendant for eight years and plaintiff for five or six years and had occasion to visit their home during their marriage. The last occasion she had to visit their home was during Christmas of 1965 when she expressed admiration for their Christmas tree. Plaintiff responded the "tree doesn't mean anything to me now, if there was a broad there it would mean something." The witness visited defendant a couple of times a week. On two occasions she saw plaintiff, at Christmas and when he drove her and defendant home from a show.

IRENE HARTLEY, called as a witness on behalf of Mrs. Dubinka, testified:

She is defendant's mother and has known plaintiff for 17 years. She would visit the home of plaintiff and defendant at least four times a year for parties or card playing. Plaintiff would come home late and sometimes "stone drunk." On one occasion he came home drunk and joined their card game but could not read the cards. During the Christmas season of 1964, plaintiff was at his home drunk and a bit under the weather. There was a little sarcasm, but it was not too bad. When plaintiff and defendant visited her home, he would leave and not return, or if he did return, he was drunk. This was either during 1963 or 1964. Plaintiff did this on Father's day in 1963 or 1964 and defendant had to go to the tavern and get him. Defendant is very nervous and under doctor's care.

Cross-examination revealed:

Prior to April 1, 1965, defendant would come almost every other week and remain for the weekend. Defendant did not leave the boy with her often, but the boy would come and remain with defendant. Only once did defendant leave the boy with the witness for a weekend.

ALEXANDER DUBINKA, testified on his own behalf as follows:

He lived with defendant until April 11, 1966. During the first two years of their marriage he worked from 5:00 a.m. to 10:00 p.m. His work required the lending and collecting of money for a finance company. He took defendant out regularly and they visited her mother's home every Sunday. They moved to a building owned by his father which was twenty-five miles from his place of employment and required almost one hour and a half each way to reach his destination. His work required long hours and visits to customers.

He became tired of visiting his mother-in-law on holidays instead of his father or sister until 1964 and 1965, when he insisted this be done. In 1961, defendant complained of his long hours and low income. He quit his job and they took a three-week vacation to California where his mother-in-law joined them. He did not invite his mother-in-law, nor did he know she was coming. In 1963 they planned a two-week vacation. However, after visiting some eastern cities, defendant insisted they return home. To please ...


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