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Del Rosario v. Del Rosario

NOVEMBER 17, 1970.

JOAN DEL ROSARIO, PLAINTIFF-APPELLEE,

v.

ROBERT DEL ROSARIO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALFONSE F. WELLS, Judge, presiding.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT:

The plaintiff filed a complaint for separate maintenance or, in the alternative, for divorce. She alleged that she had been a good and dutiful wife during their marriage and that since their separation she had been living without fault. Paragraph 7 of her complaint read as follows:

"More particularly, the Defendant has constantly harassed the Plaintiff and is wrongfully quarrelsome and abusive towards the Plaintiff. That the Defendant has on numerous occasions, struck the Plaintiff violent blows without cause or provocation, and particularly, on or about the 7th day of November, 1964, the Defendant did pound the Plaintiff against the wall and attempted to strangle her. Further on or about the 10th day of September, 1966, the Defendant beat the Plaintiff about the body and tore off her clothes; that he struck her head against the tile floor thereby necessitating the Plaintiff being taken to St. Joseph's Hospital in Elgin, Illinois requiring stitches about her face; and further on or about the 28th day of July, 1968, while leaving the home of a friend, the Defendant became enraged, and burned a cigarette into the chest of the Plaintiff."

Defendant's answer to paragraph 7 was: "Denies each and every allegation of Paragraph #7."

At the trial the defendant admitted that on November 7, 1964, he shook his wife, although he denied that there were bruises resulting. He stated that he was holding the front of her robe, shaking her "real hard," and lost his grip of her, causing her shoulder to go through the wall. The defendant admitted that on September 10, 1966, he struck his wife about the head and shoulders and tore off part of her clothing. He said, "I swatted her, that's right." He further stated that after the incident he took her to the hospital because she had a cut over her eye and "just bruises."

The defendant stated that on July 28, 1968, he burned his wife's chest with a cigarette; he termed this an accident. When asked, "You were holding a cigarette and she went up against the cigarette and burnt her chest, is that what she did?" he replied, "That's what happened."

The plaintiff testified that her husband was usually drunk two or three times a week; that at these times he became cruel and abusive. She testified in detail as to various incidents which occurred. She stated that on November 7, 1964, they went to bed after having washed floors all day; that she was tired and went to sleep; that "he didn't like that and threw me out of bed on the floor and I got up and went to the bathroom, put my robe on and went to the bathroom. He said that I was saving myself for some other man, he slapped me and I was all black and blue behind my ears." She added that the accusations were false, and that as a result of damage caused during the beating it was necessary to replace a section of wall and the top of the toilet tank.

She said that on September 10, 1966, Bob Parino, a friend who was living with them, came home and found her crying because the defendant had kicked over the television set and pulled down the kitchen drapes while intoxicated. When Parino arrived the defendant started packing his clothes, saying he was going to leave with Parino, who had found a new place to live. While Parino was consoling the plaintiff, the defendant came back into the room and, according to the plaintiff, "grabbed hold of me, had me by the hair and kept bouncing me, you know, some of it is foggy. I had this brain concussion, and he hit me in the head, he must have slapped me with his hands, my whole body was black and blue." At the hospital she required six or seven stitches.

The plaintiff testified that on July 20, 1968, while they were visiting some friends, the defendant accused her of trying to have an affair with their friend, and grabbed her while holding a lighted cigarette. The questioning at the trial was as follows:

"Q. The cigarette was lit?

A. Yes.

Q. He was burning, placing the cigarette against your chest?

A. Yes.

Q. As a result of that, you still bear marks as a result ...


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