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Christian v. Christian





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


This appeal is taken from a judgment for plaintiff in her divorce action against defendant, and from the award of fees to plaintiff's attorney both in the divorce proceeding and in defense of the appeal. The trial court entered judgment of divorce on plaintiff's complaint, dismissed defendant's counterclaim and ordered defendant to pay plaintiff's attorney's fees in the amount of $2500. Defendant appealed from the judgment and order. Subsequently, pursuant to plaintiff's petition, the trial court awarded plaintiff's attorney $3750 to represent plaintiff on appeal and defendant filed a separate appeal from that order. The appeals are consolidated in this court.

Defendant contends: (1) that the judgment of divorce on the grounds of mental cruelty is against the manifest weight of the evidence; (2) that the trial court committed reversible error in finding that defendant had made a gift of $1500 to his son; (3) that the trial court abused its discretion in awarding plaintiff attorney's fees for the trial proceedings and, alternatively, that the fees were excessive; and (4) that the trial court abused its discretion in awarding plaintiff attorney's fees for the defense of the appeal and, in the alternative, that those fees were excessive. The pertinent facts follow.

Plaintiff and defendant were first married on March 6, 1958, and divorced on October 21, 1974. Three children were born to them during that marriage. The parties remarried on April 30, 1976, and plaintiff filed a complaint for divorce on December 7, 1976, alleging that defendant had caused her serious emotional and physical distress. Plaintiff also sought custody of their two minor children, child support and educational expenses for the children, alimony and attorney's fees and costs. Defendant presented a counterclaim for divorce on the first day of trial, charging plaintiff with acts of mental cruelty and adultery. Testimony was taken from both parties, their two oldest children, Lynne and Lydell, and defendant's mother, Esther Adams. The substance of the testimony of the witnesses will be discussed in conjunction with the specific issues raised by defendant.

After all testimony was heard, and following closing arguments, the trial court found that the evidence introduced by plaintiff sustained her allegations of mental cruelty. It further found that defendant did not prove the allegations of his counterclaim and ordered the counterclaim dismissed. Judgment for divorce was entered on behalf of plaintiff, granting plaintiff custody of the parties' remaining minor child, Sabrina, and ordering defendant to make weekly support payments for her. Defendant was also ordered to make regular payments to contribute to the cost of Lydell's education and to provide for life insurance benefits and medical expenses for Sabrina. Defendant was declared sole owner of a car purchased for Lydell's use, but was ordered to pay Lydell $1500. Plaintiff retained sole title to the home which had been transferred to her by defendant in compliance with the divorce decree in their first marriage. The trial court further ordered defendant to pay plaintiff's attorney's fees in the amount of $2500.

Defendant appealed from the judgment of divorce, and plaintiff submitted a petition seeking prospective attorney's fees for maintaining the appeal. The trial court ordered defendant to pay plaintiff's appellate attorney's fees in the amount of $4500, to be paid in two equal installments. Upon the filing of a motion to vacate by defendant, the order was modified and the amount of fees reduced to $3750 for the defense of the appeal.



• 1, 2 Defendant first contends that the judgment of divorce for plaintiff on grounds of mental cruelty is against the manifest weight of the evidence. Mental cruelty is a course of unprovoked, offensive conduct toward one's spouse which causes embarrassment, humiliation and anguish so as to render the spouse's life miserable and unendurable, and which actually affects the spouse's physical or mental health. (Collins v. Collins (1977), 47 Ill. App.3d 258, 361 N.E.2d 787; Rosenbaum v. Rosenbaum (1976), 38 Ill. App.3d 1, 349 N.E.2d 73; McGowan v. McGowan (1973), 15 Ill. App.3d 913, 305 N.E.2d 261.) The facts of the particular case must be considered in light of the parties' pattern of conduct, their respective emotional make-up and the circumstances under which the conduct occurred (see Surratt v. Surratt (1957), 12 Ill.2d 21, 145 N.E.2d 594; Collins v. Collins), and the ultimate test is the effect of the conduct on the complaining spouse and the marriage itself. (McGowan v. McGowan.) We conclude that the evidence adduced at trial amply supports the judgment of the trial court.

Plaintiff testified that defendant treated her as if she were "nobody," calling her names such as "bitch" and "whore" every time he came home, and daily accusing plaintiff of infidelity. She stated that the name-calling and accusations took place in front of the children and her testimony was corroborated by both Lynne and Lydell Christian, the parties' two oldest children. Lynne testified that she had been present when defendant called plaintiff names and accused her of sleeping with other men. Lynne further testified that the course of defendant's conduct began about a month after the parties remarried, and continued nightly until it became necessary for one of the children to accompany plaintiff when she left the house in order to avoid further accusations. Lydell also testified that defendant daily insulted plaintiff and accused her of having a boyfriend.

Plaintiff's testimony also discloses a pattern of abusive phone calls. Plaintiff had to get up for work at about 2:30 a.m. each morning and defendant worked at night. According to plaintiff, defendant would call her at odd hours every night, at times letting the phone ring without speaking to plaintiff when she answered, and at other times calling her names or accusing her of having a man with her. Both Lynne and Lydell testified that they had been present or answered the phone on various occasions when plaintiff received the phone calls.

As a result of defendant's behavior, plaintiff testified, she lost 14 pounds, saw a doctor who prescribed tranquilizers for her nervousness, and was forced to take time off work. After defendant left the marital home, plaintiff became "peaceful" and did not have to see the doctor as often. All of defendant's actions were unprovoked, plaintiff testified, because she treated defendant "as a husband" during the time they lived together after the remarriage.

Defendant maintains that plaintiff has not proved her allegations because of the lack of detail in her testimony, because she was impeached twice in the course of the trial, and because there was no showing that defendant's actions were unprovoked. We disagree.

Defendant does no more than to make the bare claim that plaintiff's testimony lacked detail and disregards the fact that Lynne Christian and Lydell Christian also provided testimony for the court to consider. However, the course of defendant's conduct and its effect on plaintiff and the parties' marriage was sufficiently shown through the testimony of plaintiff and her two children.

Nor is there any merit to defendant's claim that plaintiff was impeached. In the first instance, plaintiff testified that she took three weeks off from work due to the nervous condition caused by defendant's actions. On cross-examination plaintiff testified that she helped her son Lydell with his application for college and also saw his college counselor. Defendant's mother, Esther Adams, testified on defendant's behalf that she worked with plaintiff and rode to work with her on a daily basis. Before plaintiff's three-week absence from work, Mrs. Adams testified, plaintiff had told her she would have to find another way to get to work because plaintiff was planning to take some time off to take care of some personal matters such as changing the title on her home to defendant's name, helping Lydell apply for college admission and doing some sewing. Defendant also claims plaintiff was impeached with regard to her testimony concerning overtime work during 1977 because documents and plaintiff's subsequent testimony showed that plaintiff had worked more overtime hours than she had originally claimed. Conflicts in testimony do not necessarily amount to impeachment. Moreover, the question of impeachment bears directly on the credibility of the witnesses. Credibility is best determined by the trial court and we will not reverse the trial court's finding here in light of our conclusion that that finding is not against the manifest weight of the evidence. Tandy v. Tandy (1976), 42 Ill. App.3d 87, 355 N.E.2d 585; Farah v. Farah (1975), 25 Ill. App.3d 481, 323 N.E.2d 361.

Defendant's claim that plaintiff did not show that defendant's actions were unprovoked is equally lacking in merit. Plaintiff testified that she gave defendant no cause to act as he did. She testified that she had no sexual relations with anyone other than defendant since their remarriage and that she did not kiss a man named Robert Strickland in an incident which defendant first mentioned under cross-examination. Lynne Christian testified that to her knowledge plaintiff never slept with another man during the marriage and Lydell Christian testified that to his knowledge plaintiff had no boyfriend during the marriage. Defendant attempts to make much of the fact that plaintiff admitted to having sexual relations with Robert Strickland prior to the parties' remarriage and that Lynne had testified that she had answered the telephone when Strickland had called plaintiff during the time between the parties' marriages. However, ...

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