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Knox v. Knox

AUGUST 13, 1975.

THERESE M. KNOX, PLAINTIFF-APPELLEE,

v.

JAMES F. KNOX, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND P. DRYMALSKI, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of divorce entered in favor of plaintiff on the grounds of extreme and repeated physical cruelty. Plaintiff was also awarded the marital home, child support, and attorney's fees. Defendant appeals, presenting the following issues for review: (1) whether the trial court's finding that defendant was guilty of extreme and repeated physical cruelty is against the manifest weight of the evidence; (2) whether the court erred in awarding the marital home to the plaintiff; (3) whether the court's award of child support is excessive and an abuse of discretion; and (4) whether the court's award of attorney's fees is excessive.

Plaintiff's complaint for divorce, filed June 21, 1973, averred that the parties were married on April 16, 1955. Two children were born during the marriage; Kevin Michael, born September 16, 1955, and Ann Marie, born September 30, 1958. The complaint further alleged that the defendant had, without provocation, committed acts of physical cruelty against plaintiff on March 17, 1971, January 1, 1973, and May 6, 1973. In his answer, defendant denied the allegations with respect to physical cruelty.

The evidence concerning the disputed issues may be summarized thusly. Plaintiff testified that on May 6, 1973, following an argument, the defendant hit and knocked her down. According to plaintiff, she did not provoke this attack which caused her to suffer marks, bruises, injury and pain. The parties' children were home at the time of the incident and saw the marks on plaintiff's body afterward. Continuing her testimony, plaintiff stated that on January 1, 1973, the defendant became intoxicated at a New Year's Eve party which they attended. Thereafter he started to argue with her and, when she tried to reason with him, knocked her down on the sofa, held her arms, and hit her. Again the children were in the house during the incident and saw the bruises and marks on plaintiff's body afterward. Finally, on March 17, 1971, according to plaintiff, the defendant started to argue following a St. Patrick's Day party at which he had been drinking heavily. When the parties came home, defendant got plaintiff down on the bed, put his knees on her arms, and struck her. Plaintiff stated that her face was bruised and her eye blackened for 2 weeks following the incident. She was not absent from work and did not consult a doctor about her condition.

Plaintiff testified further that the parties had not lived together as man and wife since May 6, 1973. Their 15-year-old daughter was residing with her, but their son had been put out of the house by the defendant and was living with a friend while working part time and attending college. Plaintiff stated that if awarded a divorce, she would make a home for Kevin and seek support for him as long as he attends school.

According to the plaintiff, the marital residence is owned by the parties in joint tenancy and has a fair market value of $28,000 to $30,000. There is an outstanding balance of $5,000 on the mortgage. Plaintiff further stated that the home was purchased with a $5,000 down payment received from her parents, which had never been repaid and she considered to be a loan. She requested that the court award the home to her.

Plaintiff stated that she earned approximately $8,000 per year from her work as a medical secretary and intended to continue working. She is 39 years of age. According to plaintiff, the defendant has been employed as a route assistant for a dry cleaning establishment for 17 years and currently earned approximately $14,000 per year. In addition, stated the plaintiff, he received about $100 per month from his union. During the marriage, both parties deposited their paychecks into a joint checking account. Plaintiff testified that the parties had a joint checking account at the South Holland Trust & Savings Bank with a balance of $2,045.43, her personal checking account had a balance of approximately $300; and the defendant had $3,000 to $4,000 in savings bonds and life insurance. Plaintiff estimated her monthly expenses in operating the household at $900 and stated that she needed $400 per month together with her salary to meet the expenses. She requested $50 per week per child as and for child support. She further stated that she had paid the sum of $250 as a retainer for her attorney and asked the court for $2500 from her husband for additional attorney's fees.

On cross-examination, plaintiff denied hitting her husband on May 6, 1973, and did not recall throwing anything at him or attacking him with a weapon. She was not attended by a doctor after this altercation and did not receive any lacerations or cuts on her body. Except for the visibility of her bruises, the injuries she sustained were not sufficient to hinder her employment. Plaintiff further testified that the defendant hit her with both an open and closed fist during the incident of January 1, 1973, and that she did not return to work for 2 days thereafter. She received some medicine for her nerves after this incident but sought no other medical assistance. Regarding the incident of March 17, 1971, plaintiff testified that defendant hit her with his closed fist, although she had alleged in the complaint that she was hit with an open fist. Plaintiff admitted that she had defended herself with a weapon during the incident.

The next witness called on behalf of the plaintiff was her mother, Margaret Martin, who testified that she noticed on or about March 17, 1971, and again on or about January 1, 1973, that the plaintiff's eye had been blackened. The witness further stated that plaintiff had bruises on her body on or about May 6, 1973. With respect to the $5,000 down payment on the marital residence, Mrs. Martin stated that she had never asked the parties that the money be repaid.

Kevin Knox, the parties' son, testified on behalf of his mother that he saw his father hit her about 10 times. These incidents, according to the witness, caused bruises and were usually associated with his father's drinking. He knew of no provocation on plaintiff's part, and the testimony describing his knowledge of the altercations was substantially similar to that of the plaintiff. On cross-examination, the witness stated that he saw his mother hit his father twice. Further, Kevin Knox described an incident on December 22, 1973, during which his father placed a stereo and other items in the driveway and threatened to throw more things out. A scuffle between Kevin and the defendant ensued, after which the witness moved from the house. Kevin Knox stated that he was living with a friend at the time of trial because of the arguments and abuse at home.

The next witness called by the plaintiff was Ann Knox, daughter of the parties. The witness stated that she had seen her father strike plaintiff on one occasion and had heard loud noises and scuffling between them on about four occasions. On cross-examination, Miss Knox testified that she had never seen her mother hit the defendant.

James F. Knox, the defendant, testified on his own behalf that he did not directly swing at the plaintiff during any of the altercations as alleged in the complaint. The witness stated that he tried to "maybe" hold her arms in the course of arguments so she would not swing at him, and "perhaps" that is how her arms were bruised. Regarding the incident of March 17, 1971, defendant stated that he did not recall what precipitated the argument but that it was after a St. Patrick's Day party. Regarding the January 1, 1973, incident, Knox stated that he had been drinking at a New Year's Eve party and fell asleep in the back seat of the car while his wife was driving. When they arrived home, he wanted to go to sleep but plaintiff insisted on discussing his conduct at the party. An argument followed, during which plaintiff inflicted a superficial scratch on his body with a knife. Regarding the incident of May 6, 1973, the defendant stated that plaintiff became upset following a party which they attended. According to the witness, she may have tried to bump him and possibly her bruises occurred when he held her arms. The witness further testified that the parties were approximately the same size at the time of all three incidents.

Continuing his testimony, Mr. Knox stated that plaintiff had been taking pills, apparently for a thyroid and heart condition, for 15 years. She also took tranquilizers and sleeping pills. Defendant felt the sum of $900 per month for household expenses was excessive but had never figured out the operating expenses himself. Knox stated that his financial problems had caused him to cash bonds in order to support the household. He did not know if the $5,000 received from his in-laws as a down payment on the marital residence was intended as a gift but stated that they had been very generous to them through the years.

At the close of the evidence, the trial court entered judgment in favor of the plaintiff on the grounds of physical cruelty. Plaintiff was awarded the marital home, child support in the amount of $400 per month for the two children, and attorney's fees in the amount of $1,000. After the decree had been entered, the award of ...


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