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Kerbis v. Kerbis

OPINION FILED MAY 14, 1976.

GERTRUDE KERBIS, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

DONALD KERBIS, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM E. PETERSON, Judge, presiding.

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a judgment which dismissed her complaint for separate maintenance and granted a divorce to defendant on grounds of physical cruelty. On appeal she contends that the trial court erred when it (1) denied separate maintenance on the basis that her marriage was irreconcilable, (2) granted defendant's request for divorce despite the manifest weight of evidence which did not establish physical cruelty, and (3) committed several evidentiary rulings which denied her a fair trial.

Plaintiff and defendant were married in Acapulco, Mexico, on August 23, 1961. From the time of their marriage until their separation the parties lived in Chicago. One child, Kim, was born to the parties on May 18, 1963. A second child, Julian, was adopted by the parties and had reached majority at the time of these proceedings. Defendant's child by a previous marriage, Lisa, had been residing with the parties since the inception of the marriage.

The following evidence pertinent to this appeal was adduced at trial.

For plaintiff

Gertrude Kerbis on her own behalf

Defendant, a professional tennis instructor at a summer camp in Watervliet, Michigan, and at a tennis club in Highland Park, did not return to the marital home after the summer season in September, 1970. At a family Thanksgiving dinner in 1970, which defendant attended, she made a toast to togetherness. Defendant left immediately after the dinner. He stated that he intended to live a divorced life. Around Christmas that same year, she offered to look for a family residence on the North Shore closer to his tennis club, but defendant rejected her offer. Defendant always had access to their apartment.

In May, 1971, she observed defendant leave the apartment of Eileen Kaplan at about 2:30 a.m.

In June, 1972, at about 7 a.m., she looked through some windows in the master bedroom at their house in the tennis camp and observed defendant lying nude in bed with a Mrs. Goldblatt. She attempted to serve a subpoena on Mrs. Goldblatt, but defendant stopped her and forced her to leave the camp.

She denied ever calling her husband at the camp and threatening to throw his clothes into the hallway of their apartment building.

Defendant did not attempt a reconciliation on January 20, 1971. She denied breaking his finger on that night and hitting him with a chair. Defendant did attempt to strike her and when she ducked his hand crashed into the wall.

On February 6, 1971, she returned home from a party and found defendant moving items from the house. A dispute followed and defendant broke down the hallway door. She called the police and defendant was arrested. She denied tearing his coat or striking him.

She admitted having a conversation with Ronald Barnard, an attorney, regarding defendant's visitation rights with their daughters.

John Elsasser

Defendant hired him in May, 1972, to work at the tennis camp and also to do work at the Winnetka home of Mrs. Goldblatt. One evening while he was painting the upstairs bathroom next to Mrs. Goldblatt's bedroom, defendant arrived. He saw Mrs. Goldblatt enter the bedroom. He was lying on the couch in the morning when he heard defendant leave the house. Mrs. Goldblatt also lived with defendant at the tennis camp in Michigan. He admitted that defendant fired him after several disagreements.

Phillip Le Tourneau

He was a private investigator hired by plaintiff. On May 16, 1971, he observed defendant and Eileen Kaplan enter her apartment. After plaintiff confronted defendant at the apartment door, defendant left with his hair and clothes in a disheveled condition.

Eileen Kaplan under section 60

She attended a movie with defendant sometime after her divorce in February, 1970. She recalled private detectives knocking on her apartment door at about 1 a.m. ...


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