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Graham v. Graham

OPINION FILED NOVEMBER 19, 1976.

HAZEL L. GRAHAM, PLAINTIFF-APPELLEE,

v.

KENNETH E. GRAHAM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Shelby County; the Hon. GAIL E. McWARD, Judge, presiding.

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

Plaintiff-appellee Hazel L. Graham filed a petition seeking separate maintenance from her husband, defendant-appellant Kenneth E. Graham, in the Circuit Court of Shelby County. The petition alleged, inter alia, that the defendant had "willfully abandoned, deserted and absented himself from the plaintiff and the marital home in Shelby County, Illinois, without any reasonable cause or fault on the part of the plaintiff * * *." The defendant's answer denied these allegations and affirmatively alleged that the plaintiff was barred from any relief "by reason of her misconduct and by virtue of her desertion of the defendant." The plaintiff denied that she deserted the defendant. The defendant's answer added a counterclaim for divorce grounded on acts of extreme and repeated mental cruelty, alleging as instances thereof the plaintiff's failure and refusal to accompany him when his work compelled him to move from Shelby County; frequent quarrels which caused him to suffer "extreme nervousness" and obliged him to seek the care of a physician; and failure to carry on a normal marital relationship. The plaintiff's answer to the counterclaim denied each of these allegations.

The trial court entered a decree dismissing the counterclaim for divorce, finding that the plaintiff had sustained the allegations in her petition for separate maintenance, although finding that she was not in need of support at that time, and ordering the defendant to pay $55 per week for the support of the parties' minor child, all extraordinary medical expenses for the child, and $500 for plaintiff's attorney's fees, plus court costs. This appeal, from both the decree for separate maintenance and the dismissal of the counterclaim for divorce, followed.

The relevant facts, as established at trial by the testimony of the parties and their 16-year-old daughter Rosemary, were as follows:

Plaintiff and defendant were married on March 2, 1957, and had lived in Findlay, Illinois, since that time. Since 1960, defendant has worked for the C & EI Railroad. Early in 1973, the Findlay depot was terminated, necessitating that the defendant work in St. Elmo and Villa Grove, about 45 and 60 miles, respectively, from Findlay. He would return to the family home on his days off. Also early in 1973, the defendant closed the parties' joint checking account at the Shelby County State Bank because his wife had written a number of insufficient funds checks. Around March of 1973, defendant was "bumped" (displaced by a worker with more seniority) from the St. Elmo-Villa Grove job and transferred to a "swing job" in Salem, Mt. Vernon, and West Frankfort, some 90 to 100 miles from Findlay. He moved the family's mobile camper to a campground nearer to his job, and for the next two or three months returned to Findlay on his days off. The defendant testified that before accepting the job in Mt. Vernon, he asked his wife to move with him to Southern Illinois. According to him, she said that she wouldn't until school was out, and suggested that he take the camper and stay in it until school was out, when they would discuss it further.

About May 15, 1973, after defendant had not returned home for two or three weeks, his wife called to ask why he hadn't come home. He told her that he had obtained a wiring job on a house and had stayed to do that job. He also told her that he was planning to attend the children's graduation exercises, scheduled for successive days at the end of that month. He did come home for their son William's graduation, and then drove the 90 miles back to Mt. Vernon, as he had to work that night. He made the drive again the next day, arriving back in Findlay about noon, and fell asleep in a chair. He was awakened and "upset" by Rosemary's banging the door, and left without attending the graduation. The alleged desertion dates from this departure.

His wife testified that he had only stayed overnight with her about three times since that incident, although she did not believe that she had ever asked him to leave the marital residence. The only discussion she could remember having with him about moving from Findlay occurred one night late in November 1973. At that time he was still working out of Salem, Mt. Vernon, and West Frankfort, and also working as a dispatcher for the Missouri Pacific Railroad in Chester, some 180 miles from Findlay. He asked her how much she thought it would cost to move their mobile home down to Southern Illinois, but, she testified, he never asked her specifically to move to another place, nor did she ever refuse to go with him. He didn't want Rosemary to live in Chester because of the supposed drug problem there. Rosemary did not remember hearing her parents discuss moving to Southern Illinois on any other occasion.

The defendant testified that he discussed her moving several times on the telephone and once "during strawberry season," when his wife came down to visit him with his oldest daughter by his first wife, and Rosemary. He recalled making the statement about the drug problem in Chester, but testified that he didn't mean by that that he didn't want them to move to Southern Illinois, only that he would not want them to live in Chester. He testified that after June of 1973, when he started working as a dispatcher in Chester, he came home to Findlay only once a month or every two months, sleeping and having sexual relations with his wife on those occasions when he spent the night. He testified that he telephoned half a dozen or a dozen times and asked her if they could get back together, but she didn't seem to think that it would work. He couldn't say exactly how many times they had talked about his wife moving to his place of employment. The last time was in early March of 1975, some two months before the hearing.

Defendant raises three issues on this appeal: whether plaintiff was entitled to a decree of separate maintenance, whether defendant was entitled to a decree of divorce, and whether the trial court erred in its award of support.

• 1 Our separate maintenance statute gives married men or women living separate and apart from their wives or husbands "without their fault" a remedy for reasonable support and maintenance. (Ill. Stat. 1973, ch. 68, par. 22.) At common law, if a woman was compelled to live apart from her husband without her fault, she carried her husband's credit with her to the extent of supplying herself with necessities, but only those who furnished her with necessities could maintain an action against the husband. (Van Dolman v. Van Dolman, 378 Ill. 98, 37 N.E.2d 850 (1941); Bartlow v. Bartlow, 114 Ill. App. 604 (3d Dist. 1904).) The original purpose of the separate maintenance statute was to remedy this perceived defect in the common law by enabling a married woman to sue in equity in her own name for her support. (See Ross v. Ross, 69 Ill. 569 (1873); Bush v. Bush, 316 Ill. App. 295, 44 N.E.2d 767 (3d Dist. 1942), and cases cited therein.) The present statute, of course, accords the same right to the husband.

• 2, 3 In order to prevail in a separate maintenance action, it is essential that the plaintiff establish that the separation was without her fault. (Neal v. Neal, 43 Ill. App.2d 108, 192 N.E.2d 689 (3d Dist. 1963); David v. David, 77 Ill. App.2d 448, 222 N.E.2d 540 (2d Dist. 1966).) The "fault" referred to in the statute consists of either voluntary consent to a separation or failure of duty or misconduct materially contributing to a disruption of the marital relationship. (Glover v. Glover, 132 Ill. App.2d 284, 268 N.E.2d 218 (4th Dist. 1971), and cases cited therein.) There is no requirement that the complaining party be wholly blameless (see, e.g., Bertram v. Bertram, 346 Ill. App. 314, 105 N.E.2d 515 (3d Dist. 1952)), nor is it necessary that the conduct be itself a sufficient basis for a divorce by the other party (Strandquist v. Strandquist, 22 Ill. App.2d 107, 159 N.E.2d 513 (2d Dist. 1959)), as the measure of proof and grounds of relief are not the same in cases for separate maintenance as in cases of divorce. Abraham v. Abraham, 403 Ill. 312, 86 N.E.2d 224 (1949).

• 4 In announcing its decision granting the decree of separate maintenance in the instant case, the trial court stated that the evidence did not show "any failure of duty or misconduct as far as the plaintiff is concerned that has materially contributed to the deterioration of the marriage relationship between the plaintiff and the defendant." As we have seen, however, this speaks only to half the test: for it has long been settled in Illinois that if the separation is with the consent of the plaintiff, she is not without fault within the meaning of the statute. (Johnson v. Johnson, 125 Ill. 510, 16 N.E. 891 (1888); Vock v. Vock, 365 Ill. 432, 6 N.E.2d 843 (1937); Bielby v. Bielby, 333 Ill. 478, 165 N.E. 231 (1929); Levy v. Levy, 388 Ill. 179, 57 N.E.2d 366 (1944); Elston v. Elston, 344 Ill. App. 233, 100 N.E.2d 635 (2d Dist. 1951).) In Bielby, for example, our supreme court held that a wife's continuing to see her husband and on occasion driving him part way home evidenced consent to their living as they were. This, together with her refusal to return to him after he had built a house and requested that she live with him, was held to bar her from a decree of separate maintenance. See also Barton v. Barton, 318 Ill. App. 68, 47 N.E.2d 496 (4th Dist. 1943).

• 5 At common law, it was the husband's prerogative to choose the domicile of himself and his wife, so long as he acted reasonably; a wife's unjustifiable failure to accompany him was considered desertion or abandonment. (Kennedy v. Kennedy, 87 Ill. 250 (1877); Bateman v. Bateman, 337 Ill. App. 7, 85 N.E.2d 196 (4th Dist. 1949); Martin v. Martin, 62 Ill. App.2d 105, 210 N.E.2d 590 (1st Dist. 1965). See also Annot., 29 A.L.R.2d 474 (1953), and later case service.) Nor would the law require the husband to do the futile act of finding a suitable home for her in the new place if the wife in fact would continue to refuse to move. Bateman v. Bateman, 337 Ill. App. 7, 15, 85 N.E.2d 196, 200.

The traditional attitude can be ascertained in the following passage from Babbitt v. Babbitt, ...


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