APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
DORAN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 3, 1975.
In December, 1973, the circuit court found that the defendant had been guilty of extreme and repeated mental cruelty towards the plaintiff and granted the wife a divorce, alimony in gross and attorney's fees. The defendant has appealed, on the sole ground that, under the present state of Illinois law, the finding is contrary to the manifest weight of the evidence. Regretfully, we agree and reverse.
The parties were married in 1934 and raised four children, all of whom are grown and gone. Although the parties have occupied separate bedrooms since January, 1973, they have continued to reside under the same roof.
Without going into specific details, suffice it to say that the acts complained of are (1) remote in time insofar as the date of separation is concerned; or are (2) pretty sparse in the totality of a 30-year marriage; or (3) occurred after the separation precipitated by her; or (4) were in part provoked by her.
For example, the defendant is said to have used vile language towards the plaintiff in 1971, 2 years before they separated. He also suggested that she clean the recreation room in 1972. Five years before the separation, he threatened to leave her and sell the home. On some three occasions he allegedly belittled her in the presence of friends, but these were some 4 years before the separation.
Throughout the marriage the parties have had difficulty in communicating, and would avoid each other, the defendant often writing notes instead of communicating orally. He also sometimes drank on the way home from work. Money was also a problem. He gave her little and she had to ask for it, so she worked to support herself and their children. The plaintiff's testimony as to her mental pain and anxieties, nervousness and irritability related to events occurring after their separation which she herself imposed. The evidence also suggested that the plaintiff's nagging, fits of anger and breaking off of communications precipitated the defendant's profanity, indifference and drinking.
The obvious fact is that, regardless of fault, this marriage is dead and the parties do not intend to and probably will never again live together as husband and wife. But under the present state of the law in Illinois this is not enough.
As was said by Mr. Justice Davis, in Stanard v. Stanard (1969), 108 Ill. App.2d 240, 249, 247 N.E.2d 438, in reversing a decree granting a divorce:
"Apparently, the trial court was moved by the fact that this marriage was obviously dead; that the parties had not lived together for some time, and would not now do so; and that to permit the marriage to continue would `simply be continuing an existence of a status which is a constant source of friction.' The observations of the trial court are patently correct.
However, as has been reiterated time and again, the law favors the preservation of the estate of marriage and will dissolve a marriage only upon sufficient proof of the grounds set forth under the statute. People ex rel. Doty v. Connell, 9 Ill.2d 390, 394, 137 N.E.2d 849 (1956); Kinsley v. Kinsley, 388 Ill. 194, 197, 57 N.E.2d 449 (1944)."
In Akin v. Akin (1970), 125 Ill. App.2d 159, 167-68, 260 N.E.2d 481, the court, in reversing a decree of divorce, said:
"We recognize, as the trial court apparently did, that divorce might be a better solution than separate maintenance, as the parties have apparently separated permanently without a chance for reconciliation. However, the wife elected to have her remedy in separate maintenance and is contesting the complaint for divorce. Divorce cannot be forced upon her, as divorce can only be granted upon sufficient proof of the grounds set forth under statute. Anything short of the requirements therein will not suffice. Stanard v. Stanard, 108 Ill. App.2d 240, 249, 247 N.E.2d 438."
In Quilty v. Quilty (1972), 5 Ill. App.3d 801, 803, 284 N.E.2d 690, in reversing a decree of ...