APPEAL from the Circuit Court of McHenry County; the Hon.
JAMES COONEY, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Plaintiff, Gordon Iverson, filed suit for divorce on the sole ground of mental cruelty. At the close of the plaintiff's case the trial court allowed the plaintiff to amend his complaint by adding a paragraph containing specific allegations of mental cruelty and a separate paragraph alleging an attempt on the life of the plaintiff by the defendant by means showing malice. Immediately thereafter the trial court granted the defendant's motion for a directed finding and dismissed the plaintiff's amended complaint. In its memorandum opinion the trial court stated, as its reasons for granting defendant's motion for a directed finding, that the plaintiff had not proven a prima facie case on lack of provocation nor that the treatment by defendant had actually affected the physical or mental health of the plaintiff. On appeal, the plaintiff contends that the trial court's finding that the plaintiff failed to prove lack of provocation and injury to the plaintiff's physical or mental health is against the manifest weight of the evidence; that the trial court erred in not considering and ruling on the allegations in the amended complaint concerning the attempt upon the life of the spouse by means showing malice as a separate and distinct ground for divorce rather than as a part of the grounds of mental cruelty; and that the trial court committed reversible error when it used the results of an independent inquiry as a part of its finding.
The parties were married in 1966, cohabited together as husband and wife until July, 1973, and lived under the same roof until March, 1974. The plaintiff filed his complaint for divorce on September 7, 1973. Two children, Bret and Bart, were born from this marriage and the defendant has one natural child, Martin, from a previous marriage. At a hearing held in March, 1974, the trial court granted temporary custody of Bret and Bart to the plaintiff.
At a hearing on the complaint for divorce, the plaintiff testified that for several years the defendant had cursed at, reviled and demeaned the plaintiff in front of his friends and children in both public and private places. Plaintiff testified that the defendant had accused the plaintiff of homosexuality and adultery and both the plaintiff and his alleged lovers testified that it did not occur. Testimony was also introduced that the defendant made two attempts on the plaintiff's life. Plaintiff then testified that he had never provoked or given the defendant any reason for her actions. Except for the two attempts on the plaintiff's life, all of the above was corroborated by numerous witnesses. Plaintiff also testified that as a result of defendant's conduct plaintiff developed stomach pains which he had never experienced before, was unable to sleep for the first time in his life and began losing weight. Other witnesses corroborated this testimony. They also testified that he complained of chest pains, looked ill, suffered from shakes, became extremely nervous and depressed and underwent a complete personality change.
The defendant, called under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60), denied all allegations of her misconduct and stated that the plaintiff had treated her "all right" during their marriage.
The record discloses that the defendant was involved in a one-car accident in January, 1973. She suffered serious physical and mental injury in the accident and she was in and out of the hospital for weeks at a time in January, March and August, 1973. As a result of the accident the defendant became confused, disoriented and suffered episodes of "temper tantrums." Dr. J.G. Graybill, the court-appointed psychiatrist, concluded that the defendant suffered serious brain damage in the accident. Among the physical injuries she received in the accident were a compound fracture of the left patella (kneecap) and a compound laceration of her left petellar tendon. After the accident the defendant had a full leg cast placed on her left leg. She had corrective surgery on the left knee in August of 1973 but was not told that her leg had fully recovered until at least January, 1974.
Section 64(5) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 64(5)) provides that the defendant may file a motion for directed finding at the close of the plaintiff's case in all cases tried without a jury. This section states that in ruling on the motion the court shall weigh the evidence. This has been construed to mean:
"* * * the Civil Practice Act requires the trial judge, at the close of the plaintiff's case, to evaluate the evidence by determining the credibility of the witnesses, reasonable inferences to be drawn from their testimony, and, in general, the weight and quality of the testimony, in order to conclude whether or not the evidence to that point of the trial has made out a prima facie case in favor of the plaintiff." (De Bello v. Checker Taxi Co. (1972), 8 Ill. App.3d 401, 404, 290 N.E.2d 367, 369.)
The court went on to say:
"On appeal, the reviewing court must itself examine the evidence and determine whether or not the trial court erred in deciding the case contrary to the manifest weight of the evidence." (De Bello v. Checker Taxi Co. (1972), 8 Ill. App.3d 401, 404, 290 N.E.2d 367, 369.)
After a careful examination of the evidence, we find that the trial court erred in granting the defendant's motion for a directed finding and dismissing the plaintiff's amended complaint because the trial court's findings were contrary to the manifest weight of the evidence.
1 It is well settled that the elements of mental cruelty consist of a course of abusive and humiliating treatment, calculated or obviously of the nature to torture, discommode or render miserable the life of the opposite spouse. Conduct to be considered extreme and repeated mental cruelty must be unprovoked and of such a nature to cause embarrassment, humiliation and anguish so as to render the life miserable and unendurable or to cause plaintiff's life, person or health to be endangered. (Stanard v. Stanard (1969), 108 Ill. App.2d 240, 247 N.E.2d 438; Olson v. Olson (1973), 13 Ill. App.3d 888, 300 N.E.2d 765 (abstract opinion).) Whether the misconduct complained of constitutes mental cruelty is primarily determined by its effect upon the aggrieved spouse and the total factual background. Stanard; Olson.
In the instant case the trial court determined that the plaintiff had made a prima facie case on cause and that the defendant had been guilty of verbal abusive treatment of the plaintiff of such a nature that it did render his life miserable. This is not an issue in this appeal.
The plaintiff does contend that the trial court's finding that the plaintiff failed to prove lack of provocation is contrary to the ...