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Moynihan v. Moynihan

NOVEMBER 17, 1972.

JOSEPHINE M. MOYNIHAN, PLAINTIFF-APPELLEE,

v.

JOHN JOSEPH MOYNIHAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID LINN, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Defendant appeals from a judgment of divorce entered in favor of plaintiff. The court found that the defendant was guilty of extreme and repeated acts of mental cruelty which were unprovoked by the plaintiff. The proceedings below took place in two "phases." The "first phase" concerned the issue of the parties' marital status, that is, whether plaintiff should be granted a divorce. The "second phase," which ensued after the court found that plaintiff was entitled to a divorce, concerned the property settlement and culminated in an "Additional Judgment," setting forth the terms of the settlement.

On appeal the defendant (whose brief is written pro se) contends (1) that the judgment of the court granting the divorce was against the manifest weight of the evidence; (2) that the court erred in questioning plaintiff and plaintiff's witnesses and the manner in which he questioned them; (3) that the court erred in permitting two lay witnesses to testify as to "medical and pharmacological details"; (4) that the court erred in refusing to inform defendant of the basis upon which the judgment for divorce was granted; and (5) the court erred in denying defendant the right to cross-examine plaintiff regarding a certain letter she had written and which defendant argues shows that her testimony was perjured.

No issue is raised on appeal concerning the property settlement.

At trial, as on appeal, defendant appeared pro se despite repeated requests by the trial court that he obtain the services of an attorney. Defendant is a professional consulting engineer and worked at the time of trial as an independent contractor. Defendant stated that he could not afford to retain an attorney but felt that he could adequately represent himself.

Prior to the "first phase" of the trial, the following colloquy took place between the defendant and the trial judge:

"THE COURT: Mr. Moynihan, it is the understanding of this court that you do not want to offer any defense with reference to the complaint, which related to the mental cruelty and the only issue you desire the court to determine is the allowance for the minor child or your wife as the case may be; is that correct?

DEFENDANT: Yes."

The "first phase" of the trial proceeded and the relevant facts follow.

Plaintiff, Josephine Moynihan, testified in her own behalf. She and the defendant have three children, only one of whom (Margaret) is still a minor. During her marriage with defendant she treated him well, but "he [defendant] was irresponsible in the things he should do, providing for his family and wife." They communicated very little during the past three years; during this time no conversation between them lasted over 60 seconds. She had been the "breadwinner" for the family for the past five years. The defendant had refused to sign certain forms regarding an application for financial aid for college for their daughter Margaret. When asked if the circumstances as to which she was testifying (i.e., her having to support the family, both financially and emotionally, and her general marital relationship with the defendant) were known to her friends, she answered, "Yes." As a result of these circumstances she has become nervous and upset and sought medical attention.

The court proceeded to question her without objection by defendant. She was asked to describe the alleged mental cruelty in greater detail. She responded:

"The constraint between us [is] because of the fact I cannot depend on anything and the fact that it has been up to me to hold this family together, has interfered with my sleep, my activities during the day, and a result of chronic hypertension."

Defendant was giving her minor child (Margaret) little supervision over the last several years and plaintiff was in effect raising the child. She and defendant have not slept in the same bedroom since 1967, four years ago. Defendant failed to contribute regularly to the finances of the family because he was employed only sporadically. Plaintiff would talk to him about his failure to gain regular employment and defendant would respond that "he was looking for work." She felt that defendant was making less than a good faith attempt to seek regular employment. He kept irregular hours that disrupted the marriage. As plaintiff stated:

"He went out at night. He rarely called. He would come in late. Dinner was prepared. I didn't know whether he ...


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