APPEAL from the Circuit Court of Cook County; the Hon. NORMAN
N. EIGER, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
On June 2, 1970, a judgment for divorce on grounds of mental cruelty was entered against defendant, Benjamin T. Deahl, and in favor of plaintiff, Patricia R. Deahl. The decree also provided, among other things, for plaintiff's custody of three minor children, payment of child support by defendant, transfer by him to plaintiff of child support, the entire interest in the family residence, and payment of plaintiff's attorney's fees. Defendant has appealed from that entire decree. (Case No. 55345.)
On October 13, 1970, defendant filed a section 72 petition (Ill. Rev. Stat. 1969, ch. 110, par. 72), seeking to vacate or modify the divorce decree on the ground of newly discovered evidence which indicated that plaintiff had fraudulently procured from the court the entire interest in the family residence as "alimony in gross and in lieu of alimony payments," while at the time intending to marry another man as soon as the decree had become final, thereby avoiding what would otherwise have been a cut off in alimony payments on the occurrence of her remarriage. Plaintiff moved to strike or dismiss defendant's petition, but on May 6, 1971, after a hearing, the petition was denied. Defendant's subsequent appeal (Case No. 56124) from that judgment has been consolidated with the earlier appeal.
Plaintiff and defendant were married on April 18, 1947, and at the time of the divorce had six children, three of whom were minors. In 1963, a home was purchased with a $3500 down payment provided by plaintiff's father. From then until the time of separation in 1970, defendant made monthly mortgage payments of $138.22, totaling more than $11,000, by far the larger part thereof representing payments of interest which, while accomplishing only a small increase in the parties' equity, did, indeed, succeed in preserving the parties' title and equity in the property.
During the last three years of their marriage, she and her husband weren't getting along very well; they were fighting about sex three or four times a week. He bathed every two or three weeks and always had a foul odor. He complained about her cooking and at times would throw the food on the floor. On Thanksgiving Day, 1967, he came downstairs for breakfast at about 2:30 in the afternoon. At that time plaintiff was preparing dinner for guests who had arrived about noon. Defendant demanded breakfast and when he was told dinner was being prepared and there was no time for breakfast, he made vulgar remarks to his wife in front of the guests. Plaintiff broke into tears and left the room. Defendant went back to bed and reappeared as everyone was finishing dinner, had his food reheated, and then told his wife, again in the presence of company, that her food wasn't fit to eat.
In October of 1966, plaintiff's father was staying in the home while recuperating from a heart attack. Fights occurred regularly over sexual matters and in the presence of her father defendant would call his wife a bitch and a slut.
In the morning of December 22, 1967, defendant refused to get up and go to work. A fight ensued, after which defendant left the house and went downtown. When he returned that evening he asked his wife if she had made any money. When she replied that she hadn't he said, "You could have went and sold yourself and made some money that way; that's all you're good for." The next day, with all of the children present, he said he didn't think the kids were his and that plaintiff was a slut like her mother.
From early 1967 through February, 1968, plaintiff was regularly taking tranquilizers which had been prescribed by her psychiatrist. She saw the doctor at least two or three times a week during that period. From December, 1967 until March of 1968, she was feeling very depressed and was ready to commit suicide.
On February 29, 1968, plaintiff was in a deep state of depression. She left home about 1:30 P.M., went to the drug store to have a prescription filled, then to the Savings & Loan to make the house payment, to her doctor, and then to the home of a friend about 5:30 P.M. She had dinner there and then went to a tavern with her girl friend. She had never before gone to a tavern with her girl friend but on this occasion she had two highballs and arrived home about 11:15 or 11:30. Her husband came down to meet her and tried to push her out the back door and down the steps. Eventually they got back in the house, but the altercation had awakened all the children. When she reached for the phone to call the police, he pulled the phone from the wall and hit her with the receiver. She left the house and flagged down a squad car, telling the officer that she wanted to file a complaint against her husband and have him taken in. After she filled out the complaint, the officers went back to the house with her and arrested defendant. She had the locks changed about 3:00 A.M. because she was afraid her husband would try to return. She and the children felt much better after defendant had left the home. The children's school work improved, and she was taken off tranquilizers and was able to sleep at night. She never had sexual relations with anyone other than her husband during their marriage.
From early 1967 until February 28, 1968, she had sexual relations with her husband about twice a week. Although there is a conflict in the testimony, it appears that this pattern continued until a few days before the final incident which led to defendant's arrest, but was not renewed at any time thereafter.
Plaintiff was not regularly employed, but had worked for occasional periods of time in a laundromat and a pizza place. On February 13, 1968, she withdrew $1,676.83 from their joint bank account because her husband had been using the money to bet on the horses and she didn't want the rest of it squandered. From 1963 until the last payment before trial, the mortgage payment was made by defendant from the money he earned at the post office.
Testimony of James McCorkle:
On April 5, 1968, he observed an incident which occurred in front of the Deahl family home about 2:00 in the afternoon. He had known the Deahls for about seven years and had come to the house on that day in the hope of effecting a reconciliation between them. He found plaintiff and defendant arguing on the front porch, overheard part of the conversation, and then saw plaintiff run into the house in tears. His testimony recited various other incidents which had ...