APPEAL from the Circuit Court of Winnebago County; the Hon.
FRED J. KULLBERG, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1975.
Defendant appeals from decrees, founded upon jury verdicts, which granted plaintiff a divorce on the grounds of extreme and repeated mental cruelty and denied defendant a divorce on the same grounds. Plaintiff cross-appeals, claiming that the trial court erred by making certain awards to the defendant. Pending appeal, plaintiff moved to dismiss defendant's appeal. The motion was ordered taken with the case. Numerous issues are raised by both parties, but it is necessary for use to consider only plaintiff's motion and the question of whether the decrees entered are supported by the evidence.
• 1 Plaintiff's motion is in the nature of a plea of release of errors. It is argued that by accepting the $175 weekly alimony payments ordered in the divorce decree, defendant is estopped from appealing the decree. It is a rule of law that a party cannot attack a divorce decree after having enjoyed its benefits, when to do so would place the opposing party at a distinct disadvantage upon reversal of the decree. Lemon v. Lemon, 14 Ill.2d 15, 17-18 (1958); James v. James, 14 Ill.2d 295, 298 (1958); Pope v. Pope, 12 Ill. App.3d 800, 803-04 (1973); Hancox v. Hancox, 54 Ill. App.2d 476, 479-80 (1964).
Pursuant to the decree of divorce, alimony was paid to defendant for approximately 4 months after which time, on motion by the defendant, the trial court ordered that, pending disposition of the appeal, forthcoming alimony payments would be considered payment of temporary alimony. (See Ill. Rev. Stat. 1971, ch. 40, § 16.) Evidence reveals that the defendant accepted these funds under protest; she did not use the funds but held them in a bank account. Under these facts we find that the defendant has not enjoyed the benefits of the decree and that plaintiff would not be placed at a distinct disadvantage by a reversal of the decree. The motion is denied.
A complete review of the testimony relied upon by the parties to establish extreme and repeated mental cruelty is necessary in order to determine whether the evidence justifies the judgments entered.
At the time of their separation, this marriage (the third for both parties) had endured for 25 years. Defendant had no children; plaintiff had four children born of his first marriage. At the time of trial, plaintiff was 85 years of age, defendant, 69.
After asserting that during their marriage he had been very considerate and generous toward defendant, plaintiff testified to the following incidents which occurred during or as the result of various arguments between the couple. Four to five years prior to trial, as plaintiff went to the closet for his coat, defendant seized him and, in the process, knocked off his glasses. During the same period, defendant seized plaintiff while he was sitting in his chair and, on another occasion within the last 2 or 3 years, defendant forced plaintiff backward on the bed and seized his arms. Plaintiff could not recall the cause of the arguments; the parties were alone when these acts occurred. Plaintiff testified that, while he had not been physically hurt, he reacted with a keen sense of disappointment in being subjected to such treatment and that the acts were a source of embarrassment and humiliation to him.
Two or three years prior to trial, plaintiff learned from a third party that defendant had purchased a farm. He characterized as embarrassing both the purchase and the manner in which he learned of it.
Early in 1970, the parties agreed to equally divide plaintiff's income. In November of that year, plaintiff asked for defendant's consent to invade the corpus of a trust for the purpose of their making a relatively small joint gift to certain charities; defendant refused. Plaintiff thereupon withdrew his consent to divide his income with the defendant and defendant responded by refusing to perform any domestic services for plaintiff. This continued until the middle of December, 1970, when the plaintiff left to visit one of his daughters and her family in North Carolina. On his return in early January, 1971, plaintiff became ill. Defendant rendered him services during his illness but after his recovery rendered no further services until plaintiff left on January 14, 1971, for an around-the-world cruise. Plaintiff returned in April, 1971, and established his own domicile.
In December of 1970, defendant exercised her power to have the plaintiff removed as comanager of one of their trusts. Notice of removal was sent to an officer of the trust (First National Bank of Rockford). Plaintiff was embarrassed and disappointed by this act because it reflected on his ability to handle financial matters. (Before his 1962 retirement, plaintiff had been treasurer of J.L. Clark Co.) In April, 1971, prior to filing his complaint for divorce, plaintiff, with one of his daughters, went to the marital domicile to gather his personal effects; defendant was very angry, refused to help him gather his belongings, and called him a "senile old goat."
It is upon this evidence that the defendant was found guilty of extreme and repeated mental cruelty.
Defendant's bill of particulars sets forth 22 acts of alleged mental cruelty covering a 23-year period. We relate only those incidents which seemingly are of more substance. In 1948, while dining out together and while plaintiff read a newspaper and drank his cocktail, defendant attempted to surprise him by slipping her newly-acquired commercial pilot's license under the newspaper. Plaintiff moved the paper to one side, looked at the license and returned to his reading. His action caused the defendant to cry.
Plaintiff and defendant sailed from Japan to San Francisco in April of 1961 and defendant became ill. During the trip she was cared for by the purser and the captain; plaintiff did not bring her food or ask how she was feeling. Although still ill upon arrival in San Francisco, defendant reluctantly followed plaintiff's suggestion that she go to Los Angeles and sit in the sun with her brother. Since plaintiff was traveling the distance home by train, he left defendant at the train station, thereby causing her a great deal of difficulty in reaching the San Francisco Airport. Defendant flew to Rockford from Los ...