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Gross v. Gross

OCTOBER 29, 1974.

BETTY J. GROSS, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

JOHN D. GROSS, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Hancock County; the Hon. EARLE A. KLOSTER, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

Betty J. Gross, the plaintiff, sued John D. Gross, defendant, for divorce on the grounds of mental cruelty. Defendant answered and counterclaimed on the ground of adultery. The Circuit Court of Hancock County denied plaintiff's prayer and granted defendant husband a divorce on the ground of adultery. The court ordered defendant to pay plaintiff alimony in gross and her attorney fees. The defendant appeals from that part of the judgment awarding alimony.

The plaintiff filed her complaint on July 3, 1972. The defendant set up the defense of recrimination (adultery) and filed a counterclaim alleging that the counter-defendant had for more than 18 months prior thereto been living in open and notorious adultery with one William Hester and requesting partition of the only real estate which was co-owned by the parties.

The plaintiff's original complaint did not request an award of alimony nor did it allege any special equities in real estate owned in the name of the defendant. During the course of the trial the plaintiff was given leave to amend her complaint to allege that during the marriage she had made payments on real estate taxes and general repairs on the property from funds earned while operating the family business, and still later the plaintiff was granted leave to file a second amendment to the complaint to include a request for alimony and attorney fees.

The plaintiff, aged 46 at time of trial, and the defendant, aged 48 at time of trial, were married on the 10th day of August, 1946. To this marriage there was born one son who is now a married adult and self-supporting.

The defendant at the time of marriage and thereafter was a partner with his mother and father in the operation of a jewelry store in Mt. Sterling, Illinois, known as L.A. Gross and Son Jewelry. Prior to the impairment of his eyesight, he was a skilled watchmaker and actively shared the management of the jewelry store. In the year 1963, the defendant's father passed away. Shortly thereafter the plaintiff became actively engaged in the operation of the jewelry store, continuing to be so until March, 1972. The defendant's mother passed away after the commencement of this proceeding.

In 1958 the defendant acquired a farm of approximately 90 acres and a rental residence by inheritance from an aunt; later, he acquired a remainder interest in the residence that his parents occupied. The title to the jewelry store was acquired by the three partners as joint tenants in the year 1946.

The defendant has a history of intemperance which increased in intensity after the death of his father and the loss of his eyesight which precluded the use of his skills in the watch-repair business.

At about the same period the defendant's driver's license was revoked and he has not operated an automobile since. The plaintiff and defendant resided in a home located at the east edge of Mt. Sterling, approximately 1 1/2 miles from the store location. The plaintiff, from necessity, drove the defendant to and from work. The defendant contends that the plaintiff would no longer drive him back and forth, making it necessary for him to move into one of the apartments above the store. The plaintiff disputes this claim although in her complaint she alleges that they have not lived together as man and wife since May, 1965.

The record is full of testimony as to plaintiff's mental and physical anguish attributable fully to defendant's drinking and his inattention to business since 1965. In fact, defendant concedes that it would be ridiculous to portray himself as a kind, dutiful and affectionate husband.

For a short period of time the plaintiff and their son resided with the defendant in one of the apartments above the store. The plaintiff states that she left the apartment because defendant's mother had rented it to another.

The income from the various properties progressively deteriorated and the gross sales from the jewelry store during this period were: in 1969 — $36,576; 1970 — $30,792; and in 1972 — $23,280. The reportable incomes which the plaintiff assisted in compiling were: In 1971 — $436.80; 1970 — $225.40; 1969 — $476.45; and 1968 — $2,352.45. Plaintiff and defendant each individually took their personal and living expenses from the cash drawer, the exact amount each took being unknown.

In 1967 the plaintiff had an operation in a Macomb hospital, at which time she was visited by one Bill Hester who resided in Plymouth, Illinois. At the same time and in the same hospital, the wife of Bill Hester also had surgery. Prior to her marriage to the defendant, the plaintiff and Mr. Hester had been engaged to be married. The plaintiff does not know how many times Mr. Hester drove to Mt. Sterling to see her prior to 1971 but thinks it may have been six or seven times. On such occasions the defendant was not present. After Mr. Hester's wife died in 1970, he phoned the plaintiff approximately once each week.

During the month of February, 1971, the plaintiff, without the knowledge of the defendant, moved to the home of Bill Hester in Plymouth, Illinois, with whom she continues to reside. From February, 1971 to March, 1972, the plaintiff would drive daily from Mr. Hester's home to the jewelry store in Mt. Sterling where she worked during the day and then returned ...


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