APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding.
MR. JUSTICE LEIGHTON*FN1 DELIVERED THE OPINION OF THE COURT AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING: *FN1 MR. JUSTICE LEIGHTON, WHO DELIVERED THE OPINION OF THE COURT, RESIGNED FROM THE COURT EFFECTIVE AT THE CLOSE OF BUSINESS ON 26 FEBRUARY 1976, IN ORDER TO ACCEPT APPOINTMENT AS A FEDERAL DISTRICT COURT JUDGE. FOR THE PURPOSE OF CONSIDERING THE PETITION FOR REHEARING, MR. JUSTICE HAYES WAS ASSIGNED TO REPLACE MR. JUSTICE LEIGHTON, AND HE WROTE THE MODIFIED PORTION (PART V) OF THIS OPINION.
Mr. JUSTICE HAYES*fn1 delivered the opinion of the court: *fn1 Mr. Justice Leighton, who delivered the opinion of the court, resigned from the court effective at the close of business on 26 February 1976, in order to accept appointment as a Federal District Court Judge. For the purpose of considering the petition for rehearing, Mr. Justice Hayes was assigned to replace Mr. Justice Leighton.
Opinion filed January 30, 1976. Opinion modified and supplemental opinion filed upon denial of rehearing
This appeal is the product of a long and bitter marital dispute between the plaintiff, Dr. Kurt Rosenbaum, and his wife, the defendant, Mrs. Jean Rosenbaum. The case before us, although begun by Dr. Rosenbaum as a suit for partition of their home, was later amended to include a count for divorce on the ground that his wife was guilty of mental cruelty. Then, after pretrial motions and amendment of the two-count complaint, the trial court heard evidence, entered a judgment that granted Dr. Rosenbaum a divorce, and ordered that the home be sold subject to a schedule of disbursements. Jurisdiction of the cause was retained to enable the court to determine the attorney fees to be paid for completion of the partition and to enforce the terms of the divorce judgment.
Thereafter, Mrs. Rosenbaum appeared in court with counsel and requested leave to file and personally argue a post-trial motion that she had prepared. The request was granted; but her lawyer insisted and the court allowed him to withdraw from the case. She argued the motion, but it was denied. Since then, she has acted as her own counsel in these proceedings. She prepared and filed the notice of appeal, later amended it, designated the contents of the record and docketed it in this court, and has submitted an appellant's brief that presents and argues a multitude of issues. Two of them are determinative, however, so that their resolution is dispositive of this appeal. They are (1) whether the judgment that granted Dr. Rosenbaum a divorce on the grounds of mental cruelty was contrary to the manifest weight of the evidence; and (2) whether the judgment for divorce includes or can be construed to include a valid partition judgment. The following are the facts that give rise to these issues.
Dr. and Mrs. Rosenbaum were married in Chicago on June 17, 1948. They became the parents of three children, Jay and Richard, sons who are now 26 and 24 years of age, respectively; Jody, a daughter who is now 21 years old. Dr. Rosenbaum is an optometrist who, since his marriage, has had his offices and place of business in the southeast side of Chicago. Mrs. Rosenbaum is a substitute part-time teacher in the Chicago school system. In the early days of their marriage, they lived in several small rented apartments in the city; but in 1965, they were living at 2841 West Gregory Street where, progressively, intense domestic discord characterized their relation. On October 15, 1965, Dr. Rosenbaum left his wife and three children. Almost two years later, on August 15, 1967, he filed a suit for divorce in which he charged her with extreme and repeated mental cruelty. He alleged that from the date of their marriage, he had always been a good, true, and affectionate husband; and that since leaving his wife, he lived separate from her as a single man, without fault on his part. Mrs. Rosenbaum answered these allegations and denied them. A trial followed on September 10, 1968; and after hearing the evidence, the court found that Dr. Rosenbaum "* * * failed to prove a case and does not have grounds for divorce." His prayer for relief was denied.
He did not return to the family home. Instead, he continued his separate residence and pursued his profession at a southeast-side Chicago address some 18 miles from his wife and three children. When problems concerning the family arose, Dr. Rosenbaum travelled that distance or went from his home to help solve them. But in September 1969, Jody, who was then 15 years old, left home without Mrs. Rosenbaum's knowledge or permission and her father arranged for her to stay in the home of another family. A dispute about this arose; and in the midst of it, Mrs. Rosenbaum complained to juvenile authorities who took Jody into custody. Later, a juvenile court judge ruled that she could live with her father; and as a result, she left the family home. By the end of the year, the two boys left their mother and took up residence with their father.
Then, on January 13, 1971, Dr. Rosenbaum filed the partition suit in this case. Motions and the amending of pleadings consumed a year and nine months when, on September 10, 1972, he moved for and was granted leave to file an amended complaint that contained a count charging his wife with extreme and repeated mental cruelty. He alleged, as he had in his first divorce suit, that from the date of his marriage he had been a good, true and affectionate husband; and that since October 15, 1965, he had lived as a single man, without fault on his part. The count contained subparagraphs which purported to allege the acts of mental cruelty relied on for the divorce. Mrs. Rosenbaum moved to dismiss because the allegations of mental cruelty were vague, uncertain and lacking in specifics. Her motion was sustained with plaintiff given leave to file a second amended complaint.
This leave was complied with, and the acts of mental cruelty were alleged in greater detail. Mrs. Rosenbaum answered and denied the material allegations of the divorce count; and as to the acts which her husband claimed were mental cruelty, she made affirmative allegations which purported to explain her conduct. The second amended complaint in two counts and the answer were the pleadings in the case when it was called for trial. Evidence was heard; and after listening to the arguments of counsel, the trial court ordered the parties to file briefs. They did so; and thereafter, on February 20, 1974, the trial court entered a judgment for divorce in which it concluded that Mrs. Rosenbaum was guilty of extreme and repeated mental cruelty and that the home of the parties had to be sold.
The following are the acts of his wife which Dr. Rosenbaum claimed caused him mental cruelty. They were alleged in seven subparagraphs of his second amended complaint.
"From the summer of 1969 to the date of the allegations, she constantly interfered with his work as an optometrist by calling his office on the telephone in rapid succession, or by appearing there and refusing to leave so that he could not deal with his patients. This conduct was almost daily in the summer of 1969, and most frequent in the months of July and August in the years 1970, 1971 and 1972.
She followed him wherever he went. On November 3, 1971, she rented a car for the purpose of following him throughout the day. Further, almost every Wednesday during the summer of the years 1970, 1971 and 1972, she went to the tennis courts where he played tennis and demanded of the management and of other members of the club that she be permitted to participate since she was his wife. She went to other persons at the tennis courts and introduced herself as his wife, without any reason, causing him great embarrassment. On October 29, 1970, she went to a party to which she was not invited and berated the hosts for not inviting her. This kind of conduct repeated itself in the fall of 1969 and 1970.
In July of 1969, he took his teenage daughter and her girlfriend for a weekend at a resort in Wisconsin. The daughter was in his custody; his wife was not invited. Nonetheless, she followed them to the resort, insulted them in the public dining room, and incurred charges at the hotel which she demanded that he pay. She demanded that the daughter's girlfriend vacate her room.
She has constantly gone to his place of residence and has caused arguments and provoked disturbances, most recently and specifically on October 6, 1972, when she tried to force herself into her husband's apartment and created a disturbance so that the husband's landlord has threatened to evict him.
She took his automobile and hid it so that he could not find it.
She constantly nags and harasses him and their children, more particularly, in the summers of 1970 and 1971, in the presence of members of the Edelson and Korshin families where she berated him, calling him `sick, irresponsible and a poor father.' In October of 1968, when one of his patients, a Mrs. Shaw, mistakenly called him at the family home, his wife interrogated Mrs. Shaw, harassed her and maligned him. In the winter of 1971 she went to London, where his father and his brother live, and accused them of being part of a conspiracy against her. In July of 1972, she ordered new glasses which he obtained for her; and without cause or provocation, she went to the laboratory that manufactured the lenses and accused them of deliberately making the wrong prescription and demanded the money back for herself, which money he had paid. Further, she verbally abused the agents of the laboratory with whom he does business.
She has pursued a course of filing complaints against him in the juvenile court, by reason of the fact that her children refused to live with her, choosing instead to live with him. That by reason of her filing these false and fraudulent claims, he has been greatly embarrassed and put to expense and inconvenience."
• 1 These allegations, as Mrs. Rosenbaum points out in her brief, were neither signed nor verified by Dr. Rosenbaum or anyone else. Nonetheless, a notary, one Donald C. Schiller, attested that they were "[s]ubscribed & sworn to before me this 9 day of November, 1972 [sic]." Plainly, this did not occur because no one signed the second amended complaint, nor are its allegations supported by an executed affidavit. Despite this obvious defect, it appears that the question concerning it is raised for the first time in this court, no motion concerning it having been filed below. Generally, it is said that questions concerning the sufficiency of the verification of a pleading (and we assume, concerning a signature) come too late when raised for the first time in the reviewing court. (Furst v. W.T. Rawleigh Medical Co., 282 Ill. 366, 118 N.E. 763.) Therefore, we cannot consider the legal consequences of the fact that Dr. Rosenbaum never signed nor verified the ...