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Seniuta v. Seniuta

JULY 25, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding.


This is an appeal by defendant from a decree granting plaintiff a contested divorce, giving her custody of the three children of the parties and awarding her alimony in gross. Plaintiff sued on grounds of physical cruelty and adultery. Defendant cross-complained, alleging adultery. On appeal, defendant contends (1) plaintiff failed to sustain her burden of proving condonation of her admitted adultery; (2) the court erred (a) in privately examining two of the parties' minor children, depriving defendant of his right of cross-examination and (b) in allowing certain testimony of defendant's mother, a witness for plaintiff, which was incorrectly translated by the interpreter; and (3) the award of alimony in gross was improper, excessive, and not based on plaintiff's needs and defendant's ability to pay.

At the hearing on the issue of divorce in a bifurcated trial, plaintiff testified that defendant struck her on two separate occasions in February, 1973. Specifically, she stated he beat her with his fist on February 10, and on the evening of February 16 extending into the early morning of February 17 he struck her with his hand and fist. From each she suffered pain and developed black and blue marks. She left with the children on the 17th and has been living separate and apart since then. Prior thereto, in January, 1972 defendant had accused her of committing adultery with two other men but said he would forgive her if she admitted the acts. She made the admission and, at the same time, asked his forgiveness. Thereafter, she and defendant continued to live together as man and wife in the same apartment, sleeping in the same bed, until she finally left on February 17, 1973. While they were living together, she performed her domestic duties and rendered services in connection with the operation of defendant's buildings. She had sexual intercourse with defendant when he requested it. After she had admitted her adultery and before the two instances on which defendant had struck her in February, 1973, she left defendant on three occasions — in April, June and September, 1972 — but returned to the marital domicile each time.

During one of these absences, in April, 1972, she filed a complaint for separate maintenance, which included an allegation that she had a partnership interest in the properties acquired by defendant which were held in a land trust. This complaint was dismissed in May, 1972, when defendant, as a condition of plaintiff's agreement to return, conveyed to her one-half of his interest in the parcels of realty. The next day she executed reassignments to him on his promise that he would stop hitting her and would spend more time at home with her and the children. In 1971 defendant had told her that he was seeing another woman, and in the summer of 1972 he showed her some pictures of that woman and again said he was seeing and living with her. When they separated on the second occasion in June, 1972, she directed defendant's attorney not to transfer the reassignments of the property interests to the land trustee. They separated again in September, 1972 and thereafter, when they resumed their marital life, defendant threatened to kill her or ruin the buildings if she did not reconvey the property interests. She did so in October of that year.

Defendant's mother testified in Polish, through an interpreter, that she had seen bruises and blue marks on plaintiff's body on February 10, 1973, and saw marks on plaintiff's head, breasts and legs a few days after plaintiff left defendant for the last time. *fn1 She had observed plaintiff working in and around two of the buildings, noticing that she cleaned apartments, helped to furnish them, showed apartments to prospective tenants, collected rents, and kept records. During the time she lived with the parties, she had seen her son strike plaintiff but she did not remember the exact dates. In his translation of her testimony, the interpreter apparently made mistakes concerning the dates, but they were corrected by defendant or his attorneys, who apparently understood the language.

Irving Niehart testified that he had been the janitor in the 636 Waveland Avenue building, and he observed that initially plaintiff kept the books on the property and later on, when it was changed over to furnished apartments, she had on many occasions carried furniture, cleaned the apartments, collected rents, and burned garbage in the boiler room and shoveled coal into the hoppers to feed the boiler. He had helped plaintiff carry furniture up to the apartments during this change-over period. He also stated that plaintiff showed the apartments to prospective tenants.

Two of the children of the parties (boys aged 12 and 15) were called as witnesses for plaintiff. The trial court interviewed the boys privately on motion of plaintiff. Defendant's objection that he would be deprived of his right of cross-examination, was overruled. Following the interview, the court reported, among other things, that one boy said his mother signed over the properties to defendant because the latter threatened her. The other boy said his father threatened to ruin the properties and go into bankruptcy if his mother didn't sign over her interest in them. One of the boys said that in February, 1973, he saw defendant strike plaintiff, and the other boy observed defendant strike plaintiff on the day before she and the boys left defendant.

Defendant denied striking plaintiff on the occasions she alleged but admitted that during the period of time which included those dates, he had thrown a toy automobile which struck her and drew blood. He further testified that after his alleged condonation of plaintiff's adultery he had accused her of various other acts of adultery with others, including Irving Niehart, and that plaintiff impliedly admitted these other charges by her reply that she could not help herself because, "I am just that way."

In rebuttal on the divorce issue, plaintiff was recalled and she denied any acts of adultery other than those she had admitted to her husband and further denied that she had made the statements to her husband, indicating that she could not help herself. Then Irving Niehart, one of the men with whom defendant alleged plaintiff had committed adultery, was called and he denied any sexual relations with her.

The trial court found that the testimony of plaintiff concerning acts of physical cruelty, corroborated by the testimony of defendant's mother, entitled plaintiff to a divorce; that plaintiff's defense of condonation of her admitted adultery was established by the evidence that defendant took her back, lived with her and conveyed the real estate to her; and that the evidence was inconclusive on both plaintiff's allegations of adultery by defendant and his charges of other acts of adultery by plaintiff. Custody of the children was awarded to the mother, with visitation rights to defendant.

At the hearing on the question of alimony, the following evidence was presented with respect to the buildings, all in Chicago, in which defendant held interests:

1. 5050 Sheridan Road, which has 165 apartments and 5 stores. It was purchased in 1968 for $730,000 and is encumbered by a first mortgage of $500,000 with monthly payments of $3,600 plus taxes and insurance, on which a balance of over $412,000 remained unpaid. Principal and interest payments amounted to $3,600 per year. Real estate taxes for 1972 of $93,730 were deposited in escrow. The 1973 partnership income tax return indicates a loss of $39,182.04.

2. 4246 Sheridan Road, which has 120 furnished apartments. The 1967 purchase price was $540,000. There was an unpaid first mortgage balance of $111,205 and a second mortgage with an unpaid balance of $64,727.86 as of January 1, 1974. Payments on the first mortgage were current but they had not been made on the second mortgage for the first 4 months of 1973, and the tax escrow payments were not current. The 1973 partnership income tax return discloses a loss of $9,111.58.

3. 1608 North Milwaukee Avenue is a 12-story office building, purchased in 1967 for $95,000, with mortgage payments of $909.75 per month and, as of April 1, 1974, the balance due was $56,929.01. No real estate taxes have been paid for the past 3 years, with a balance in excess of $100,000. The 1973 income tax returns, which did not take into account the tax expense and mortgage payments (because none was paid) shows an income of $499.67.

4. 626-40 Waveland Avenue is a 100-unit apartment building purchased in 1963 for $563,500, having a first mortgage balance of $52,511.32 and a second mortgage balance of $118,835.43. This property was sold on contract for $920,000 in 1969 — $120,000 of which was paid at the time of closing. As of December 31, 1973, the balance owed is over $736,000, with 19 years remaining. The monthly payment is $6,196.09, of which some $2,965 is paid monthly by the contract purchaser directly to the holder of the first mortgage; $618 paid monthly directly on the second mortgage, together with tax escrow payments of $3,157.12; and $2,613.09 paid directly to the Bank of Chicago in repayment of two personal loans totaling $150,000, which had a current balance of over $101,000. To secure these notes defendant had pledged his entire property holdings, including his interest in the contract for the sale of 624-40 Waveland.

All four buildings are held in a land trust. Defendant owns 55% of the beneficial interest in the 5050 Sheridan Road building; 80% of the beneficial interest in the 4246 Sheridan Road building; 100% of the beneficial interest in the Waveland Avenue building and 50% of the Milwaukee Avenue property.

Plaintiff testified concerning her expenses and those of the children. Excluding the cost of this litigation, the amount totals approximately $1,200 per month, not including needed medical and dental expenses, which would require further expenditures.

Jerome Ellen, a witness for plaintiff, testified he is an accountant who examined defendant's cancelled checks and original books of entry and the rent roll for the 5050 Sheridan Road building. He could not determine from them whether defendant made or lost money in 1973. The only records he examined for the 4246 Sheridan Road building were three bank statements and cancelled checks for the first 3 months of 1974. He did not examine defendant's personal accounts for 1973. On cross-examination, Ellen admitted that he had no reason to believe the 1973 income was greater than shown to him on the records of the buildings he examined; the excess profits that appeared in those records could have resulted in transfers from other accounts. He did not examine the expenses, nor the payments made on the mortgages, and he had no reason to doubt the figures shown on the partnership return. He also stated that he had never seen an appraisal of any of the buildings and that the book value shown in defendant's balance sheet had nothing to do with the value of the property today. He could not tell whether the buildings were making money or losing money, and he did not know the net income or loss of any of the buildings.

John Pelesh testified for defendant that he was an accountant who did all of the bookkeeping for defendant since he purchased the first building in 1963. He also prepared defendant's personal and partnership returns. He stated that defendant would transfer money from one building to another whenever it was needed. Defendant did not take any money from the building; when he withdrew it he redeposited it later. Any monies received by him were not shown on the partnership return — only on the books. However, if he had received money and not redeposited it, it would show on the partnership return under a reduction of capital. Defendant received no cash from the 4246 building in 1973. The cash requirement for 5050 Sheridan Road was $248,000 in 1973 — $42,000 more than its income. More money was paid out in expenses than was received in income on this building, and none of his partners contributed any money to those buildings. The difference was made up by transfers from the other buildings. He testified that where everything is pledged and heavily mortgaged, as in the case of these properties, there is no way of knowing what the equity is. If all of the people holding the various dated instruments were to foreclose, it would be difficult to determine whether anything ...

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