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Collins v. Collins

OPINION FILED MARCH 22, 1977.

MAGGIE COLLINS, PLAINTIFF-APPELLEE, CROSS-APPELLANT,

v.

JOSEPH COLLINS, DEFENDANT-APPELLANT, CROSS-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.

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

Plaintiff, Maggie Collins, brought an action for separate maintenance against defendant, Joseph Collins, who then counterclaimed for a divorce. Following a bench trial, the court awarded separate maintenance to plaintiff and denied defendant's counterclaim. Defendant appeals from the denial of his divorce, the order of separate maintenance, and the order to pay a portion of plaintiff's attorney's fees. Plaintiff cross-appeals from the court's finding that the child, Letitia Collins, was not born of the parties and from the court's order denying payment of the entire amount of arrearage in temporary support payments allegedly owed by defendant.

Plaintiff was married to a former husband, Louis Hill, when the child Letitia was born on September 10, 1967. Hill had left plaintiff around 1960. From 1962 onward plaintiff and defendant maintained a sexual relationship; they married on September 25, 1971. Although defendant suggested that plaintiff was having an affair with a man who drove her to work, plaintiff denied it. Defendant left the marital home on February 26, 1974, under circumstances which are disputed by the parties. They often argued about finances and each spouse contends the other struck blows in the course of a particular argument. Plaintiff described defendant as bad-tempered in that he occasionally beat her, often cursed at her, and continuously berated her children in obscene terms. On the other hand, defendant claimed that his wife badgered him about paying bills, hit him shortly after his return from the hospital, and threatened to hurt his injured back.

During the marriage defendant submitted an affidavit to the Illinois Department of Public Health stating that he was the natural father of Letitia and had subsequently married Letitia's mother. Defendant later questioned the validity of the affidavit. He testified that he did not know what he was signing, did not remember doing so, did not recognize his signature, and thought the form was necessary for the child's school registration.

The trial court granted plaintiff separate maintenance and exclusive possession of the marital residence and furniture. Defendant's counterclaim for divorce was dismissed, and he was ordered to pay $25 per week as separate maintenance. No support was ordered for the child, Letitia, because the court found she was presumed to be the child of plaintiff's former husband. Lastly defendant was ordered to pay $850 in attorney's fees and to pay $50 per week in arrearages. Thereupon, defendant appealed and plaintiff cross-appealed.

I.

Defendant first argues that his counterclaim for divorce was improperly denied. As plaintiff's nagging caused extreme embarrassment and her threats of injury rendered life miserable, defendant concludes that both his person and his health were seriously endangered. He contends that his testimony established sufficient grounds for a divorce based on mental cruelty. We disagree.

• 1, 2 Mental cruelty is conduct causing embarrassment, humiliation, and anguish so as to render life miserable and unendurable, or to cause a spouse's life, person, or health to become endangered. (McGowan v. McGowan (1st Dist. 1973), 15 Ill. App.3d 913, 914, 305 N.E.2d 261; Quilty v. Quilty (3d Dist. 1972), 5 Ill. App.3d 801, 803, 284 N.E.2d 690; Woodshank v. Woodshank (3d Dist. 1971), 2 Ill. App.3d 596, 599, 274 N.E.2d 694; Howison v. Howison (2d Dist. 1970), 128 Ill. App.2d 377, 382, 262 N.E.2d 1.) To be entitled to a divorce on the ground of mental cruelty, a spouse must also show that the offensive conduct was unprovoked. (Rosenbaum v. Rosenbaum (1st Dist. 1976), 38 Ill. App.3d 1, 12, 16-18, 349 N.E.2d 73; Murphy v. Murphy (1st Dist. 1975), 31 Ill. App.3d 321, 339, 334 N.E.2d 779; Gregory v. Gregory (2d Dist. 1974), 24 Ill. App.3d 436, 441, 321 N.E.2d 122.) In examining each case on its own facts, the court will consider the parties' pattern of conduct, their respective emotional makeup, and the circumstances under which the complained of acts occurred. (Surratt v. Surratt (1957), 12 Ill.2d 21, 24, 145 N.E.2d 594; Stanard v. Stanard (3d Dist. 1969), 108 Ill. App.2d 240, 248, 247 N.E.2d 438.) Further, the conduct which is alleged to constitute extreme and repeated mental cruelty (Ill. Rev. Stat. 1973, ch. 40, par. 1) must have been evidenced on at least two separate occasions. See Knox v. Knox (1st Dist. 1975), 31 Ill. App.3d 816, 820, 334 N.E.2d 891; Collinet v. Collinet (1st Dist. 1961), 31 Ill. App.2d 72, 77, 175 N.E.2d 659.

• 3 Defendant failed to establish that plaintiff's unprovoked conduct constituted extreme and repeated mental cruelty. That of which he complains occurred in a single episode. In addition, only defendant's testimony points to blameworthy actions by plaintiff and she disputes his claims. Credibility is the key to resolving such conflicting testimony. The trial judge was in the best position to determine the parties' credibility because he observed their demeanor and heard them testify in open court. Under these circumstances, and based on the record of this case, we find no basis to disturb the finding of the trial court. Tuyls v. Tuyls (1961), 21 Ill.2d 192, 195, 171 N.E.2d 779; Hayes v. Hayes (5th Dist. 1969), 117 Ill. App.2d 211, 215, 254 N.E.2d 288.

II.

• 4 We also disagree with defendant's contention that the trial court erred by granting plaintiff an award of separate maintenance. The statutory remedy of separate maintenance is available to a wife who, without her fault, is living separate and apart from her husband. (Ill. Rev. Stat. 1973, ch. 68, par. 22; Kerbis v. Kerbis (1st Dist. 1976), 38 Ill. App.3d 866, 870, 350 N.E.2d 1.) To be without fault, plaintiff did not have to be wholly blameless (Kerbis; Glover v. Glover (4th Dist. 1971), 132 Ill. App.2d 284, 289, 268 N.E.2d 218); she needed only to refrain from consenting to a mutual separation or from contributing to the disruption of the marriage (Amberson v. Amberson (1932), 349 Ill. 249, 253, 181 N.E. 825; Decker v. Decker (1917), 279 Ill. 300, 304, 116 N.E. 688; Johnson v. Johnson (1888), 125 Ill. 510, 515, 16 N.E. 891). As judged by these rules, plaintiff in the instant case was without fault in living separate and apart from defendant.

• 5 Although defendant maintains plaintiff's conduct drove him from the marital home, we note that the evidence was disputed. The conflicting testimony was presented to the trial court for its careful consideration. Upon review of the matter, we are unable to say that the trial court's decree was against the manifest weight of the evidence.

III.

• 6 Defendant also urges that the amount awarded for attorney's fees and for support was unnecessary. The well-established principle, however, is that the amount of attorney's fees rests in the sound discretion of the trial judge which will not be interfered with unless abused. (Welsh v. Welsh (1st Dist. 1976), 38 Ill. App.3d 35, 39, 347 N.E.2d 512; Greenbaum v. Greenbaum (1st Dist. 1973), 14 Ill. App.3d 217, 221, 302 N.E.2d 165.) The same rule applies to support awards. (Canady v. Canady (1964), 30 Ill.2d 440, 444, 197 N.E.2d 42; Doyle v. Doyle ...


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