APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding.
MR. PRESIDING JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 9, 1975.
Plaintiff, Donald Murphy, filed an action for divorce in 1972 against his wife, Joan Murphy, alleging as ground thereof defendant's habitual drunkenness. Defendant filed an answer denying plaintiff's charge, alleging certain affirmative matter tending to show plaintiff's misconduct. Defendant also filed a counterclaim wherein she alleged as grounds mental cruelty, and a supplement to her counterclaim adding the ground of adultery. A second supplement was filed alleging extreme and repeated physical cruelty.
For greater clarity and ease of reading, the plaintiff-counterdefendant shall henceforth in this opinion be referred to only as plaintiff and the defendant-counterplaintiff will be referred to only as defendant.
A lengthy trial was had after which the trial court entered a judgment of divorce for defendant, finding that plaintiff had failed to prove his charge of habitual drunkenness; that plaintiff was guilty of physical and mental cruelty, and that the custody of the minor children should be awarded to defendant. The judgment for divorce contained other provisions mostly regarding money and property. All will be treated within this opinion. Plaintiff had been permitted to have custody of the three oldest children throughout the trial. On petition of defendant, the trial court subsequently found plaintiff in willful contempt for refusing a visitation right and sentenced plaintiff to serve 5 days in the Cook County Jail.
Plaintiff takes this appeal from the judgment for divorce and finding of contempt and presents seven issues to this court for review:
1. Whether the ruling of the trial court that the plaintiff-husband failed to prove his charge of habitual intoxication is contrary to the manifest weight of the evidence.
2. Whether the defendant failed as a matter of law to establish that her unconscious, semiconscious, and disoriented condition at numerous times was due to "hypoglycemia."
3. Whether the trial court erred as a matter of law in permitting defendant to file a supplement to the countercomplaint for divorce adding the additional ground of physical cruelty at the close of her case.
4. Whether the ruling of the trial court that the plaintiff is guilty of mental and physical cruelty as charged is contrary to the manifest weight of the evidence.
5. Whether the ruling of the trial court that the defendant is a fit and proper person to have the care, custody, control and education of the minor children of the parties is contrary to the manifest weight of the evidence and contrary to the best interests of the children.
6. Whether the findings and decretal provisions contained in the judgment for divorce relating to the marital home, plaintiff's insurance trust, plaintiff's income, and defendant's needs and the award of attorney's fees to defendant's attorney are erroneous and should be reversed.
7. Whether the order holding plaintiff in contempt of court was erroneous because of the failure to grant plaintiff a change of venue; because of the fact that the temporary order that plaintiff allegedly violated had been superseded by the provisions of the judgment for divorce; and because plaintiff's conduct was not wilful or contumacious.
Because in oral argument both sides accused the other as slanting the testimony of witnesses in their brief, we have carefully reviewed the 3,000 page record in this matter and herein summarize the testimony of each witness as we analyze it.
The following witnesses testified on behalf of the defendant:
Defendant testified that in August, 1971, she had been in a "coma" like state and had herself admitted to the Little Company of Mary Hospital to have tests performed. She stated that "I wanted to find out what was causing the problem within my system * * * I felt there was something physically wrong with myself." Defendant denied that she was intoxicated on July 7, 1972, but rather that she went to sleep early because she was tired. However, she said the following day plaintiff had to put her into the shower after having found her lying on the floor at the foot of her bed. Several weeks thereafter, defendant went on a Caribbean cruise with plaintiff and the children.
Defendant testified that Dr. Lowney prescribed an anti-depressant called Elavil after she began seeing him in January, 1972. On September 2, 1972, she did some drinking at 11 p.m. and went to bed at midnight, at which time she lapsed into a "coma." This lasted until September 4, 1972, with the exception of a period of time on September 3, 1972, when defendant went downstairs and fell and injured herself and was carried up to bed. Defendant said that she went into a "coma" four or five times in 1971, and the same number of times in 1972. She did not think that she was intoxicated when she spoke with Mary Selvaggio on the phone during the summer of 1971.
In testifying as to her mental and physical condition, defendant said that her nervous tension was caused by plaintiff's treatment of her. From September, 1970, defendant said that plaintiff's hours became very irregular and erratic and that plaintiff said that he was seeing a lot of Terri Graff for business reasons. In March of 1971, plaintiff went to a Boss Night with Mrs. Graff after which he came home at 5 a.m. completely intoxicated and full of lipstick. Defendant said that this incident made her very depressed and upset. On occasions plaintiff would leave for a period of 4 or 5 days and defendant would not know of his whereabouts.
Defendant testified that toward the latter months of 1972, she had a great deal of nervous tension and complete and utter exhaustion to the point "where I thought I was dying." Defendant said she had no craving for intoxicating beverages, and when she did have a drink she would because plaintiff kept after her saying it would relieve her nerves, and that he continued making the demands after she started taking medication. "I took it [the drink] because I had to or else get cracked and have it thrown in my face * * *" said defendant.
Defendant testified that on December 1, 1972, she came home and found plaintiff partying with the Graffs. The Graffs and plaintiff verbally abused her, and plaintiff gave her a vicious shove and would not let her go upstairs to bed. The incident resulted in plaintiff calling the police. Defendant stated that that same month she was attempting to prepare breakfast for the baby when plaintiff came into the kitchen, took the baby's egg and threw it on the floor. As she made another egg, plaintiff took it, and with soap suds from the kitchen, smeared it into defendant's hair. As defendant fled out of the house, plaintiff came up behind her and pounded her on the back of the head.
On January 3, 1973, plaintiff closed the bedroom door and started harassing and hitting defendant. That night plaintiff came home at 11 p.m. and awakened her, spit in her face and was intoxicated. Defendant says that she did not give plaintiff any cause to so conduct himself. On January 6, 1973, plaintiff took defendant's purse away from her. As she asked him to return it, he started beating her head with his fists. Again on February 22, 1973, he struck and beat her in the face with his fists and kicked her on her legs and knocked her against the wall. Defendant proceeded to flee the home. She testified that she did not provoke plaintiff's actions.
Defendant and the baby attempted to visit the children on March 11, 1973, at which time plaintiff called defendant a filthy pig in front of the children. "He also said * * * he would rather see them dead than ever let me bring them up."
On September 23, 1973, plaintiff gave defendant a shove and as she tried to balance herself with her hand he stomped on her hand with his foot. Defendant said the pain was unbearable and that she had to go to a hospital to have her hand cleaned and bandaged. One week later plaintiff brought the baby back from visitation, at which time defendant noticed severe lacerations and bruises on the baby's head at the hairline. She subsequently brought him to the hospital for x-rays. She testified that a Hazelcrest policeman was present at the time plaintiff returned the baby because since the incident the previous week, a policeman comes on Friday and Sunday when the children are brought and picked up.
She said that her mental and physical condition has definitely and decidedly improved since she has not been living at home. She has not been nervous or depressed since the separation and she ceased taking medication entirely at the end of 1972.
Dr. Lowney began treating defendant in January, 1972 and has seen her once a week to the date of his testimony. The doctor stated that his diagnosis of her would be that of reactive depression. He prescribed Elavil and Librium, an antidepressant and an antianxiety drug respectively. Dr. Lowney testified that "In my opinion, Mrs. Murphy has none of the stigma of an alcoholic and there is nothing in my history and nothing in my observations of her weekly visits to even consider her problem as being alcoholism. In addition, the testing as well as many interviews would indicate that she tends to get depressed." He went on to say that depression could be precipitated by an unhappy home life and that, in fact, she mentioned many times that plaintiff would be out most of the night, that he has a temper and that he was hard on the children.
Dr. Lowney testified that the inserts that are put into certain drug packages warn that one should not drink when taking Elavil and Librium. The tranquilizers, he stated, reinforce the effect of alcohol and could induce intoxication. Dr. Lowney said that taking everything into consideration he would consider her a fit and proper person to have the care and custody of the children.
Dr. Wigant testified that he treated defendant in 1971, 1972 and 1973 for anxiety and depression and that she had the appearance of being haggard, fatigued and anxious. Dr. Wigant said that he never saw her in a condition involving drinking, though she had told him that she went into a "coma" after she had consumed alcoholic liquor while taking Librium. Dr. Wigant gave her a test for hypoglycemia, and found a "very mild hypoglycemia, not of any great clinical significance."
Dr. Wigant testified that she came to his home on the evening of January 25, 1973, that he examined her, and that she had evidence of contusions, bruises, ecchymosis and swelling around the face and jaw. He did not smell liquor on defendant's breath. He again saw her on either February 23 or February 24, 1973. He identified certain pictures at the trial as being of her face on that particular date. The doctor examined her and found an area of swelling and ecchymosis and contusions around the left eye and on the left cheek and over the right cheek an area of contusion and ecchymosis.
As her family physician, and from his personal experience and knowledge, he would not diagnose her as an alcoholic. Her depression was not the result of alcoholism and in his opinion it was not necessary for her to join Alcoholics Anonymous. She joined more for the support, he thought, than for the need. Dr. Wigant testified that Librium and ...