APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN J. KANTER, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
This is an appeal taken by defendant from a decree of divorce entered by the trial court in favor of plaintiff by consent of the parties after a pretrial settlement conference and "prove-up."
• 1, 2 The only issue in this case may be framed as follows: whether a party seeking a divorce because of mental cruelty must, to sustain his or her burden of proving lack of provocation, negate any possible means in which the conduct might have been provoked although the other party has not raised the issue of provocation in the pleadings or introduced any evidence suggesting that the misconduct was provoked; or even in any way objected at the trial to the sufficiency of the evidence. We conclude that (1) where the defending party has not denied the plaintiff's allegations that the conduct was not provoked, that admission is binding on the defending party. We also conclude that once the complaining party has testified generally that the conduct was not provoked, the defending party has the burden of introducing some evidence that it was. We further conclude that in the case at bar the defending party has waived any right to complain as to the sufficiency of the evidence.
On June 30, 1975, the plaintiff, Catharine Hecht, filed a suit for divorce. In the complaint she alleged that the defendant, Joseph Hecht, had been guilty of extreme and repeated mental cruelty designed to make her life unendurable, that this treatment had affected her physical and mental health, destroyed her peace of mind and forced her to seek medical treatment. She further alleged that all this was without provocation on her part. The defendant filed no answer.
On October 31, 1975 the parties met with Judge Kanter for a pretrial conference. Having reached an agreement, they decided to prove up the case that morning. Both the plaintiff and her attorney were present. The defendant had been present for the pretrial conference but left before the matters were proven up. His attorney remained and at no time has the defendant alleged that his attorney was not authorized to act as he did.
The plaintiff was the only witness. She testified that she had tried hard to be a good wife; that Joseph was not a good husband to her; that he had stayed away for long periods of time, indeed, at present he had been away for nearly a year; that he had not provided more than a token amount of support; that he was a compulsive gambler and at times lost large sums of money; that his losses caused financial havoc on the family and she had been required to borrow large sums of money from her mother and her mother's estate to support the family; and that because of the gambling she was constantly besieged by creditors. She further testified that this conduct caused her mental and physical anguish and suffering and forced her to see a doctor. The rest of her testimony concerned the property settlement. The defendant's attorney did not cross-examine. At the end of the plaintiff's testimony the following colloquy occurred between the trial court and the defendant's attorney:
MR. KELLEY: No questions, your Honor.
THE COURT: Mr. Kelley, as you stand here today are you interposing any objection or defense to the allegations made?
MR. KELLEY: No defense or objections, your Honor.
THE COURT: This, of course, is by authority
MR. KELLEY: Of my client, yes.
THE COURT: Are you satisfied with the terms ...