Appeal from the Circuit Court of DeKalb County; the Hon. CARL
A. SWANSON, Judge, presiding. Judgment affirmed.
JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
This appeal is from an order denying the defendant's counterclaim for divorce founded upon desertion and extreme and repeated mental cruelty.
The plaintiff and defendant were married in 1942. On September 28, 1967, the plaintiff left the marital home and the following day filed a complaint for separate maintenance. The complaint claimed that the defendant, without provocation, was guilty of physical cruelty and that it became necessary for her to live separate and apart, all without her fault. The defendant denied, by answer, certain of the allegations contained in the complaint and counterclaimed for divorce. The counterclaim was founded upon extreme and repeated mental cruelty. Thereafter, on August 20, 1968, by stipulation of the parties, the proceedings were suspended and an order of reconciliation was entered. The parties then resumed living together.
Several continuances were granted upon motion of both parties and, on April 7, 1969, the plaintiff was allowed to withdraw her complaint for separate maintenance. On the same day, the defendant was allowed to amend his counterclaim by adding a second count for divorce based upon desertion. This was filed on April 10, 1969. No order revoking the order of reconciliation is found in the record; nevertheless, the amended counterclaim came on for hearing before the court on April 28, 1969. At the time of the hearing the plaintiff and defendant were both residing in the marital home.
At the close of the evidence the trial court found that the defendant (counterplaintiff) had not met the burden of proof necessary to sustain his case and denied the counterclaim.
On appeal, the defendant has raised various issues, many of which are collateral and, we believe, answerable under a singular question: Was the trial court's finding against the manifest weight of the evidence as to each of the alleged grounds claimed for divorce?
The fact is undisputed that on April 10, 1969, the date the defendant filed his amended counterclaim for divorce charging the plaintiff with desertion, the parties were both residing in the marital home. It is defendant's position that, regardless of this fact, he may maintain an action on desertion and, as authority, quotes from our decision in Roback v. Roback, 59 Ill. App.2d 222, 226, 207 N.E.2d 130 (1965):
"In the case at bar, the fact that the parties were living under one roof did not indicate that the complaint was filed in bad faith. However, in actions for separate maintenance and in actions for divorce based upon desertion, where the element of living apart is essential to establish probable cause or grounds on which to base the action, the fact that the parties live together under one roof may, under certain circumstances, indicate an absence of good faith in the filing of such action. Here, the plaintiff filed complaint in the alternative, for separate maintenance or divorce, and upon the filing of a motion to dismiss, voluntarily dismissed the separate maintenance action. . . ."
The defendant has, however, inadvertently overlooked the sentence which follows the above quote:
". . . Had separate maintenance been the sole relief sought, defendant's argument might have merit, but it is no answer to the complaint for divorce based upon cruelty. . . ."
The nature of a complaint for divorce based upon desertion requires that the parties be living separate and apart. In Lindeman v. Lindeman, 337 Ill. App. 261, 85 N.E.2d 847 the Court stated:
"We are confronted with the question whether the statutory period of divorce can begin to run while the husband and wife are living in the same home. The answer is no."
This same proposition applies to a complaint for separate maintenance. Baumgartner v. Baumgartner, 16 Ill. App.2d 286, 293, 148 N.E.2d 327 (1958).
The evidence is uncontradicted that during the last 15 years of their marriage, the plaintiff and defendant were not conjubilant. Though they were together under one roof, they slept in separate rooms. The defendant, a farmer, tended to his farming while the plaintiff, a registered nurse, engaged in her profession. The record discloses that the plaintiff worked nights, at times employed in two different positions, but that she performed all of her normal household duties and, according to the defendant, "She kept a wonderful house"; however, she displayed no physical affection toward the defendant. When queried as to whether he ever ...