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West v. West

OPINION FILED NOVEMBER 27, 1979.

ROBERT BOYD WEST, PLAINTIFF-APPELLEE,

v.

EVELYN LUCILLE WEST, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. JOSEPH C. MUNCH, Judge, presiding.

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

Defendant, Evelyn Lucille West, appeals certain provisions of a divorce decree that was entered on November 2, 1977. The decree granted the following relief:

(1) the parties' marriage was dissolved;

(2) custody of the minor child was granted to defendant, with the right of reasonable visitation for plaintiff;

(3) plaintiff was ordered to pay $50 weekly support of the child, plus all reasonable medical and dental expenses for the child;

(4) defendant was awarded $900 monthly alimony;

(5) the marital home and its furnishings were ordered sold with the proceeds to be divided equally between the parties after satisfaction of the mortgage thereon;

(6) plaintiff was declared the sole owner of the property upon which Tryco Manufacturing Company is located;

(7) plaintiff was ordered to pay defendant's $6,000 attorney's fees, plus court costs; and

(8) defendant's counterclaim for separate maintenance was dismissed and plaintiff was barred from collecting alimony from defendant.

Defendant raised three issues on appeal: (1) The Illinois Marriage and Dissolution of Marriage Act which took effect on October 1, 1977, governs the case; (2) the evidence presented at trial fails to establish mental cruelty as a ground for divorce; and (3) the court abused its discretion in its order relating to child support, alimony, and the parties' property. This court, in reversing and remanding with directions, determined that the new act was applicable and that the judgment of divorce was deficient since it did not recite that the court found one of the grounds for a dissolution without cause or provocation by plaintiff. The court did not address the third issue. West v. West (1978), 62 Ill. App.3d 963, 379 N.E.2d 930.

The supreme court reversed the judgment of the appellate court, holding that the new act was not applicable and that the finding of alack of provocation was implicit since the trial court entered judgment in favor of plaintiff. The case has been remanded for a determination of whether the trial court's judgment of divorce and its rulings on property, alimony, and child support were proper under the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, pars. 1 through 21.4). West v. West (1979), 76 Ill.2d 226, 390 N.E.2d 880.

The parties were married on October 17, 1944, and resided together until October 16, 1974, when plaintiff left the marital home. Six children were born to the parties; a son, who was born on September 4, 1963, is the only child still living at home. Plaintiff filed for a divorce in February 1976, claiming, as grounds, defendant's constructive desertion and extreme and repeated mental cruelty.

In the judgment for divorce the trial court found that defendant had been guilty of extreme and repeated ...


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