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Shumak v. Shumak

JULY 17, 1975.

IRENE SHUMAK, PLAINTIFF-APPELLEE,

v.

ALAN SHUMAK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. JOHN L. HUGHES, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

After a bench trial the Circuit Court of Lake County granted the plaintiff Irene Shumak a divorce on the ground of mental cruelty. The court found that plaintiff had special equities in the marital residence and awarded her two-thirds. Defendant husband appeals contending:

I. That plaintiff failed to present sufficient evidence to establish lack of provocation.

II. That special equities were not proved or pleaded.

III. That the trial court abused its discretion in denying defendant's motion to continue the hearing on his post-trial motion.

I.

The court in Stanard v. Stanard, 108 Ill. App.2d 240, concluded that the plaintiff was required when charging mental cruelty to allege and prove that the acts and conduct of the defendant were without provocation on the part of the plaintiff. An allegation of lack of provocation was deemed to be an essential allegation of the cause of action. Absent such an allegation the complaint failed to state a cause of action and therefore the trial court was without jurisdiction to enter a decree.

In Standard the complaint was filed before August 14, 1967. The Divorce Act was amended, effective August 14, 1967, to add section 8a (Ill. Rev. Stat. 1967, ch. 40, par. 9a), providing as follows:

"In every action for a divorce commenced on or after the effective date of this amendatory Act of 1967, the fault or conduct of the plaintiff, unless raised by the pleadings, is not a bar to the action nor a proper basis for the refusal of a decree of divorce."

Accordingly, in Del Rosario v. Del Rosario, 133 Ill. App.2d 8, 12, it was said:

"As we have pointed out, in his answer the defendant did not admit the beatings occurred but denied they were unprovoked; he denied each and every allegation of plaintiff's paragraph 7. He thereby denied that, provoked or unprovoked, he struck and burned his wife at all * * *. If he wished to establish provocation as an issue, he should have followed the statutory requirement of Section 9(a) of the Divorce Act and admitted the acts, but raised the fault of plaintiff as a defense."

Although not necessary to the opinion, Stanard (at 248) stated that section 8a was not intended to alter what might or might not constitute physical or mental cruelty. If the defendant's conduct was sufficiently provoked, that conduct was not a ground for divorce, i.e., mental cruelty that has been provoked simply does not give rise to a cause of action; provocation is not an affirmative defense but merely proof that an element of plaintiff's prima facie case, the existence of cruelty, does not exist.

The Del Rosario opinion which holds provocation to be an affirmative defense has never been followed or even cited by the courts. The dictum of Stanard as applied to section 8a has apparently become law. (Akin v. Akin, 125 Ill. App.2d 159; Farnbach v. Farnbach, 1 Ill. App.3d 74, 77; Fleener v. Fleener, 133 Ill. App.2d 118, 121; McCarrel v. McCarrel, 17 Ill. App.3d 1034, 1039; Bilsky v. Bilsky, 18 Ill. App.3d 329, 333; Rey v. Rey, 23 Ill. App.3d 274, 275; Gregory v. Gregory, 24 Ill. App.3d 436, 321 N.E.2d 122.) Not one of these cases ...


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