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Odom v. Odom

AUGUST 20, 1971.

BETTY MASON ODOM, PLAINTIFF-APPELLANT,

v.

HERBERT R. ODOM, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a decree granting a divorce to defendant. On appeal plaintiff's main contention is that there was insufficient evidence for the trial court to find that she committed extreme and repeated acts of physical cruelty against defendant.

Plaintiff originally filed a complaint for divorce; defendant filed a cross-complaint and an amended cross-complaint for divorce and plaintiff filed an amended complaint for separate maintenance.

The evidence of plaintiff in the trial for separate maintenance disclosed that the parties were married on November 24, 1962; that a daughter was born in 1967; that in 1966 plaintiff had filed for separate maintenance charging physical violence in February and March 1966; *fn1 that defendant left the home on January 15, 1969, without cause and that the parties lived separate and apart since then. Defendant was called by plaintiff as an adverse witness under section 60 and testified that he started packing to leave home about the 1st of January, 1969, had applied for an apartment on January 6 and that he told her "it would be best to get a divorce under the circumstances we were living." When asked what these circumstances were, he replied, "many acts of violence by my wife or by myself." He described her as five feet three or four inches tall weighing 120 pounds. He was six feet one and one-half inches tall and weighed 154 pounds. He left the apartment on January 14, 1969.

At the conclusion of plaintiff's evidence the court found plaintiff had established a prima facie case for separate maintenance. Defendant was granted leave to proceed on his cross-complaint for divorce with the evidence thereunder to stand as his defense to the separate maintenance action.

Defendant testified that plaintiff committed the following acts of cruelty:

1. May 1964 — struck defendant with a decanter — no bruise or mark.

2. March 1966 — pulled a knife — no injury.

3. July 1966 — pulled a gun — bit the defendant.

4. March 1968 — after a heated discussion about bills struck defendant's arm with a mirror.

5. August 1968 — pointed gun and "something struck him above left eye." (This incident is not alleged in defendant's cross-complaint.)

6. November 6, 1968 — struck defendant's left wrist with door knob — no medical treatment.

7. January 14, 1969 — After a heated discussion about money, struck defendant with a boot on left elbow; had X-ray a day or two thereafter and took off a day and a half from work. (Defendant's witness, Amanda Norman, testified that about January 27, 1969, defendant was given a heat treatment for a bruise on his arm from a shoe.)

Defendant also testified that while he lived in the home until he moved out on January 15, 1969, he last slept with his wife in August 1968. (As a witness for plaintiff under section 60 in the separate maintenance action defendant first testified that they cohabited until January 1969; later he stated ...


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