APPEAL from the Circuit Court of Kendall County; the Hon.
WILSON D. BURNELL, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1978.
The trial court awarded a divorce to the husband and gave custody of the five minor children of the marriage to the wife. The wife was granted alimony as well as support for the children and in the absence of a property settlement agreement between the parties themselves, the court made certain dispositions of the marital property.
The husband appeals the award of the custody of the children to the wife, as well as some aspects of the property division and the award of attorneys' fees to the wife. The wife appeals from that part of the decree awarding the husband a divorce on the ground of mental cruelty and contends the support provision is inadequate and the division of the property is unfair in awarding some interest to the husband in property owned solely by her.
Robert and Mary Ann Gray were married in 1965. Five children were born of the marriage. (Although the husband denied he was the father of two of the children, they were all born during coverture and since there was no evidence to show that any one else was the father, the trial court treated the five children as the husband's.)
The marriage was a stormy one and on July 5, 1973, the husband left the marital home in Clarendon Hills and did not again live permanently with the wife, although he continued to visit her and the children in the Clarendon Hills home for a year or so after that. In July 1974 the husband filed suit for divorce on the grounds of mental cruelty. The suit was originally filed in the Du Page County circuit court, but was later transferred to the 16th Judicial Circuit, Kendall County. The wife counterclaimed for separate maintenance and requested temporary alimony, custody and child support and denied there was any ground for divorce. She also requested exclusive possession of the marital home in Oswego which the parties had acquired in November 1973 and had put in joint tenancy. (The husband testified he bought the Oswego house in a reconciliation attempt, after his departure from the Clarendon Hills home.)
The husband owned the Robert T. Gray Company, which was incorporated. However, he described himself as a "manufacturers' representative." The business was concerned with the manufacture and sale of machine parts and the testimony at trial indicated his income before taxes was about $27,000 in 1972 and about $30,000 in 1973. His 1974 income tax return showed a taxable income of $28,300.
Shortly after the couple was married they bought a two-bedroom house in Clarendon Hills, which they still owned at the time of the divorce proceedings. The wife already had two teenage daughters by a previous marriage and after several children were born of the marriage the house became very crowded and the testimony indicated this crowded condition contributed to the tension which built up between husband and wife. It was difficult to keep the house neat and the husband had no privacy. In July 1973, after several quarrelsome incidents between them and charges by the wife that the husband was a homosexual, a dope fiend and a racketeer, the husband left the marital home and told her he was not coming back. He testified the wife had insulted him, struck him, chased him out of the house and made life miserable for him to the extent it had begun to affect his health. He also testified that, in an attempt to bring about a reconciliation, he offered to buy a larger house for the family. They looked around and found an unfinished house on the outskirts of Oswego in Kendall County, which they purchased in their joint names in November 1973. The husband testified he had never lived in the Oswego house because his wife would not allow him to. In any event, he apparently took little interest in completing it and did not assist her to move into the new house from the Clarendon Hills house, although apparently expecting her to do so in order that he could sell the Clarendon Hills house. The Oswego house was unfinished but livable. The husband testified the wife refused to sell the Clarendon Hills house and let her teenage daughter by her first marriage live there by herself, while Mrs. Gray and the rest of the children lived in the Oswego house and the husband lived in a flat in Cicero, where his business was located. In July 1974 he filed suit for divorce. After many acrimonious sessions of court hearings, regarding grounds for divorce, support money and division of property and custody of the children, the trial court granted the husband a divorce and granted the wife custody of the children. Since the parties could not agree on a property settlement, the trial court allotted the marital assets between them, as he thought was fair, and for the best interests of all concerned, including the children.
In the decree the trial court (1) granted a divorce to the husband, rejecting the wife's plea for separate maintenance (she was a Jehovah's Witness and did not believe in divorce); (2) granted custody of the children to the wife; (3) granted $200 per month to the wife as "alimony" (indicating, however, that he was doing this in order to help the husband out because he could take a tax deduction for this amount. This alimony was to terminate upon the youngest child reaching the age of 16); (4) awarded the wife $500 per month for support of the five minor children, plus an allowance for extraordinary medical expenses, if such were incurred; (5) ordered the jointly owned Clarendon Hills house to be sold and the proceeds to be applied to the mortgage on the Oswego house; (6) ordered the joint tenancy title in the Oswego house to be severed and to be replaced by tenancy in common; (7) provided that the Oswego house could be sold at any time by mutual agreement of the parties, and that otherwise the wife and children should have exclusive possession of it, until the earliest of one of the following: (a) remarriage of the wife; (b) the youngest child reaching age 16; (c) the wife voluntarily vacating the premises for a period of 90 days. Upon the happening of any of these events, the Oswego house was to be sold and the net proceeds divided equally between the parties. However, the husband was to be first reimbursed for any principal amount or interest on the mortgage he had paid, following the sale of the Clarendon Hills house, and application of its net proceeds to the Oswego house mortgage (if the Clarendon Hills house did not bring in enough to pay off the Oswego mortgage). Thus, the husband was responsible for any mortgage payments remaining on the Oswego house, after the Clarendon Hills house proceeds were applied to it, but would be reimbursed for such expenditures, after the Oswego house was sold. He also was required to pay the taxes and insurance, which likewise would be deductible from the sale proceeds of the house. The wife had the first refusal in the sale of the Oswego house.
The parties were also purchasing under contract the vacant lot adjoining the Oswego residence. The court awarded this lot to the husband. Although the lot was being bought in their names, the wife did not dispute that the husband had supplied whatever money was paid for it and testified that it was a "separate obligation" (apparently meaning separate from the obligation of the house itself).
A vacant lot in Arkansas standing in the joint names of the couple was awarded to the wife as well as several lots in Wisconsin, which were also in joint tenancy.
A confusing aspect of the property settlement decreed by the court was with regard to the funds in two savings accounts, one in the wife's name only in Appleton, Wisconsin, amounting to about $24,000, the other a joint savings account in a Cicero bank, the original amount of which was not clear from the testimony, but which at one time apparently had a substantial balance. The wife refused to divulge any information about the Appleton account. The husband testified he had supplied most of the funds in that account and that it had a balance at the time of the divorce of around $24,000 and that although the account was in his wife's name only, he had permitted this merely in order to preserve domestic peace by allowing her to deposit the funds in her already established Appleton account (she originally came from Appleton). He said, however, that he had never intended to make her a gift of such funds and it was regarded by both of them as a jointly owned fund. The wife, however, testified that the account never totaled more than $16,800 and that part of this money was entirely hers from wages she earned before they were married and part of it was from the settlement of an insurance claim, due to an accident involving her two children by her previous marriage. There was testimony indicating that the insurance settlement was very nominal. The interest from such savings account indicated a balance of around $24,000 at the time of the divorce. The trial court suggested getting at the true source of the funds by contacting the bank, but the bank refused to divulge any information without the depositor's (the wife's) consent, which she would not give and which the court had no jurisdiction to compel the Appleton bank to disclose. The trial judge, after admonishing the wife that he would treat the funds as joint property unless she cooperated by revealing the source and true ownership thereof, treated these Appleton deposits as joint property. He gave the husband credit for $12,000 from this account.
At the same time the judge gave the wife the benefit of the doubt with regard to the savings account in the Cicero bank. The trial court was apparently as puzzled by the gyrations of this account as is this court. It appears from the exhibits that withdrawals from the savings account were made by both parties; however, the court found that approximately $6,000 had been withdrawn from this account by the husband and was unaccounted for. He, therefore, credited the wife with half of this sum $3,000 against the $12,000 credited to the husband on the Appleton account and came up with a net difference of $9,000 in the husband's favor. To satisfy the husband for this $9,000 the trial court awarded jointly owned stocks of the parties to the husband, to that extent, any shortage to be made up from the wife's share of the proceeds of the sale of the Oswego house, when it was sold.
Neither side was satisfied with the trial court's decree. As indicated above, the wife appealed the judgment for divorce and the amount of child support and also the offset in the husband's favor in connection with the Appleton bank account. The husband contended the wife was not a fit person to have custody of the children and appealed that portion of the decree. He also said that the amount allowed by the judge for support was too much, that the granting of periodic alimony to the wife plus indeterminate possession of the Oswego house amounted to granting both periodic alimony and alimony in gross and that the trial court had no power to order the sale of the Clarendon Hills house and the application of its proceeds to the Oswego house mortgage and that the court had no power to order the sale of the jointly held stocks to the extent necessary to make up any deficiency in retiring the Oswego mortgage if the Clarendon Hills proceeds were not sufficient for that purpose.
1, 2 Before getting into the ramifications of the property disposition, we will consider the questions of divorce and custody. We think the trial court was clearly correct in granting the divorce to the husband. His testimony as to the conduct of the wife was lucid and believable and must have been made entirely credible to the trial court by the irrational and improper behavior of the wife at the trial. The court at one point left the bench and took a recess in order to calm his anger over the arrogant and improper remarks of the wife, both off and on the stand. That the wife was guilty of mental cruelty is quite believable from the testimony on both sides and we have no hesitation in affirming the judgment of divorce on the ground of mental cruelty. It is plain from the testimony that the wife was unreasonable, if not irrational, in some of her judgments, and there was evidence she was not a good housekeeper and she was at times seemingly harsh, and at other times perhaps too lax, in dealing with the children. On the other hand, however, the husband was not in a position to take care of several small children, nor did he wish to take care of two of them, whom he did not acknowledge as his own. Moreover, the husband caused much of the family difficulty to begin with by delaying so long to provide more living space for a family consisting of husband, wife, several infants and two teenage stepdaughters. There is little doubt that this crowding contributed to the chaotic condition of the household which he testified to. His income during these years was apparently sufficient to have afforded more spacious living arrangements, had he wished to do so. It appears ...