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In Re Marriage of Yakin

OPINION FILED MAY 7, 1982.

IN RE MARRIAGE OF MARY EILEEN YAKIN, PETITIONER-APPELLEE, AND PAUL M. YAKIN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 22, 1982.

Respondent appeals from a judgment of dissolution entered in favor of petitioner. The court found that respondent was guilty of extreme and repeated acts of mental cruelty, extreme and repeated physical cruelty, and constructive desertion. The court further awarded custody of two minor children to the petitioner, awarded the marital residence to the petitioner subject to a lien of $5,000 in favor of respondent and assessed attorney fees in favor of petitioner's attorney in the amount of $12,000.

Respondent contends that (1) the judgment of the court granting the divorce was against the manifest weight of the evidence; (2) the court erred in permitting the trial to proceed while respondent was absent; (3) the court erred in awarding custody of the minor children to petitioner and (4) the court erred in awarding attorney fees to petitioner's attorney in the amount of $12,000. No issue is raised on appeal concerning the award of the marital residence to petitioner. For the reasons hereinafter stated we affirm the trial court as to the granting of petitioner's petition on grounds of mental cruelty, physical cruelty, and constructive desertion but reduce the court's award of attorney fees. The relevant facts on the contested grounds of the petition follow.

Petitioner, Mary Eileen Yakin, filed her petition for dissolution of marriage on January 5, 1979. During the following 1 1/2 years several preliminary motions and petitions were brought on behalf of both parties and discovery was conducted. On April 27, 1979, pursuant to petition of respondent, Paul M. Yakin, an agreed order was entered by the court requiring both parties to submit to a mental examination by a court-appointed psychiatrist and reserving the issue of submitting the children for a mental examination. Ilse Judas, M.D., was suggested by the court because she was a specialist in the field of child psychiatry. She was approved by both parties and during late May and early June, she interviewed each of the parties and the two minor children. She conferred with petitioner on two occasions totaling 1 hour and 55 minutes. She also saw respondent on two separate occasions, totaling 2 hours and 10 minutes. At another session, she observed the whole family interact together and spoke to each of the children individually for approximately 30 minutes each. Upon completing her examination, on June 5 she prepared a written report recommending that petitioner be awarded the permanent custody of the parties' two minor children. This report was submitted to the attorneys for both parties but was not filed with the court. On September 20, 1980, the attorney for respondent deposed Dr. Judas pursuant to order of the court and subpoena. On June 29, 1979, pursuant to petition of respondent for a supportive services investigation, the court entered an agreed order authorizing an investigation by the Department of Supportive Services. Sharon Zingery was the caseworker assigned to conduct the investigation. She visited with each of the parties in their respective homes and observed the parties' interaction with the two minor children. On December 10, 1979, she prepared a written report which was sent to the attorneys for both parties. In that report she recommended that permanent custody of the two minor children be awarded to petitioner.

On December 11, 1979, the first phase of the trial proceeded as a contested trial as to the grounds for dissolution of marriage. After petitioner began to testify in her own behalf, the court conducted conferences with counsel and the parties in chambers. Respondent and his attorney stated at these conferences that respondent was opposed to a divorce and wished to participate in marriage counseling with petitioner. The trial then was suspended and, on January 28, 1980, the parties entered into a written stipulation, which was filed on February 1, 1980. The stipulation contained, among other things, the following provisions: (1) the parties would participate in counseling by Melvin N. Seglin, M.D., a court-appointed psychiatrist; (2) Dr. Seglin would render an opinion as to whether the parties' marriage was nonviable and whether their differences were irreconcilable; (3) the parties agreed to be bound by the recommendations of Dr. Seglin as to these issues; (4) in the event that Dr. Seglin found that the marriage was nonviable, or that there existed irreconcilable differences, the parties agreed that the document would serve as a stipulation to prove up the case as if it were an uncontested default matter, with the grounds being willful and constructive desertion on the part of respondent, without any cause for provocation on the part of the petitioner, and that the permanent custody of the parties' two minor children would be awarded to petitioner; and (5) in the event that Dr. Seglin found the marriage nonviable, or that there existed irreconcilable differences, respondent would not put on a defense as to ground or custody. Both parties testified in open court as to the terms of the written stipulation and as to their voluntariness in entering into it without coercion from any party or the court.

Both parties were seen by Dr. Seglin on a weekly basis in a series of psychiatric interviews from approximately February 11, 1980, through May 1, 1980. Dr. Seglin prepared a written psychiatric summary which was tendered to counsel for both parties and to the court. He stated in the summary:

"It appears that the situation has gone beyond `the point of no return' and an attempt at reconciliation at this time would be fruitless. I will offer one further recommendation in the event that the divorce is decreed. I see no reason why custody of the children should not be granted to Mrs. Yakin."

After receipt of Dr. Seglin's report, petitioner filed a petition requesting a prove-up date to allow the case to proceed pursuant to the parties' written stipulation. In response thereto respondent filed a petition requesting that the parties' written stipulation be withdrawn, based on public policy and various constitutional arguments. The trial court, on August 13, 1980, entered an order which provided that the stipulation heretofore entered would be rescinded, provided that respondent pay petitioner for the attorney fees that were specifically incurred in connection with the stipulation.

The trial on the grounds of dissolution was reset, continued from time to time and eventually recommenced on January 21, 1981.

This opinion will not be unduly extended at this point by cataloguing each of the instances identified by petitioner in support of her petition for dissolution; when appropriate, the operative facts supporting the grounds for dissolution will be detailed. The record supports the conclusions that respondent privately and publicly insulted his wife, was guilty of physical cruelty, physical abuse, psychological harassment toward plaintiff and also humiliated her before family, friends and strangers. Following the testimony of witnesses called on behalf of both parties, the court entered a judgment of dissolution based on respondent's mental cruelty, physical cruelty and constructive desertion. The court's ruling was issued on January 23, 1981. Following the court's ruling a trial date on custody and financial issues was set for February 24, 1981. One week prior to the scheduled trial date on custody and financial issues, respondent filed a motion for substitution of attorneys and Attorney Genaro Lara substituted for respondent's former counsel. After hearing testimony of witnesses, the court found that petitioner was entitled to the permanent care, custody and control of the parties' two minor children. She was awarded the marital residence, subject to a lien in favor of respondent in the amount of $5,000. The judgment of dissolution of marriage was entered on March 13, 1981, and the issue of attorney fees was taken up in a separate hearing. Hearing commenced on the issue of attorney fees on April 29, 1981, and on May 6, 1981, an order was entered assessing attorney fees in favor of petitioner's attorneys in the amount of $12,000.

Respondent filed his notice of appeal from the judgment of dissolution of marriage on April 2, 1981, and the notice of appeal was amended on April 15, 1981. On May 20, 1981, respondent filed notice of appeal on the order of attorney fees. Case No. 81-823 concerning the judgment for dissolution of marriage and No. 81-1266 on the issue of attorney fees were consolidated on July 10, 1981, by order of this court.

OPINION

I

Respondent-appellant argues that the acts of which petitioner complains did not comprise a course of conduct sufficient to rise to the level of extreme and repeated mental cruelty; that petitioner's proofs failed to establish that these facts resulted in an adverse effect upon her physical or mental health; that petitioner's case lacked the requisite proof demonstrating an absence of provocation on petitioner's part with respect to the acts in question; that petitioner's proofs failed to establish extreme and repeated cruelty; that petitioner's proofs failed to establish constructive desertion and that petitioner failed to prove lack of provocation on her part in regard to extreme and repeated cruelty and constructive desertion. We disagree. The record reveals the following:

Petitioner testified that respondent accused her of trapping him and forcing him into the marriage. He told her that he never loved her and that he no longer wished to be married to her. He accused her of destroying his life and of strapping him down with responsibilities and obligations; he accused her of intentionally becoming pregnant, in order to force him to stay in the marriage; and he called her a bitch and told her that the most important thing in his life was his work; that she and the child were mere "clutter." She further testified that when she became pregnant and went into labor with her first child he complained about driving her to the hospital and after her delivery, refused to visit her in the hospital. On numerous occasions he told her that he considered her ugly or vaguely attractive only when she wore makeup; that she looked like a little girl and that he found her repulsive. He also frequently told her that she was immature, strange, abnormal and neurotic. Although she prepared meals on a daily basis, he told her that he refused to be obligated to her time schedule for meals and that he refused to sit down and eat meals with her and the children. Instead he would eat alone in a separate room of their apartment. Despite her protests he would spend very little time with her and the children; he spent the majority of his time on his studies and on lawsuits he planned to file against his former psychiatrist and against his former graduate school. He told her that he needed to achieve his revenge by filing these lawsuits, in order to assert his manhood. Once he pushed her and slapped her face in a public courtroom. When she attended various parties with him and his school or business associates, he criticized her for talking too much, being too spontaneous, revealing too much about herself, behaving immaturely, showing neuroticism, revealing her stupidity and ignorance and behaving too seductively toward other men. He also accused her of being a whore, having sexual relations with her psychiatrist, a man who is 78 years of age, and of getting his professional services in exchange for sexual favors.

He told her that her psychiatrist was making her sicker. Petitioner further testified that she found a "stream of consciousness" diary written by her husband, in which he stated that he enjoyed hurting her and seeing her cry, and that it gave him a great sense of power. In April of 1977 she consulted with an attorney regarding a divorce. When she advised respondent of this he slapped her in the face and called her a bitch and a whore. Also, he threatened to destroy her and the children and said that she was going to die as his wife. In May of 1978 she asked him for time off from sexual relations. In response to this request, he pushed a washing machine against her hip, bruising her and then threatened to rape her. He went into another room and began throwing furniture. She separated from him after this incident but later reconciled. After reconciling she went, at his request, to a psychiatrist selected by him for marriage counseling. During a joint counseling session he stated to the psychiatrist that she was the sickest person he had ever met and that she was incredibly hard to live with.

She further testified that there had been moments of affection during the marriage, but that those moments were rare. In addition, she testified that after the altercations aforementioned, he would refuse to talk to her, and there would be periods of silence, sometimes as long as two days. Further, she said that on repeated occasions, when she would ask him to sit down and discuss the marriage in order to work things out, he would refuse to answer. During the month of December 1978 there was no communication between the parties and in late December or early January 1979, she left the marital home with the two minor children and filed the dissolution proceedings.

Finally, petitioner testified that as a result of the respondent's conduct, she suffered crying spells, shaking, extreme nervousness, heart palpitations, insomnia, restlessness, shock, alternating nausea and constipation, headaches, dizziness, feelings of frustration, bewilderment, humiliation, hopelessness and deep hurt. She also testified that on the occasions that respondent struck her, pushed her and pushed the washing machine into her, she suffered from pain, bruises and red marks.

Dr. James Alexander, psychoanalytic psychiatrist, testified on behalf of petitioner. He testified that he had seen petitioner professionally on a regular basis from 1975 through 1980. He had discussed her marriage with her on a number of occasions and summarized his conclusions by stating:

"Well, she was, she was very unhappy, under continuous emotional distress; and that was evident by obsessive worry about it, preoccupation with it, tears, despairing feelings, often feeling hopeless to cope with the stress of the marriage, the conflict."

He further testified that petitioner told him that respondent had a depreciating, high tempered and contemptuous attitude toward her. Dr. Alexander also testified that he thought that petitioner's physical health was sound, although the emotional stress caused her to often feel exhausted and agitated. He had observed her emotional condition to be anxious, worried and distressed. He further observed that she cried a lot and felt trapped and hopeless. In his opinion, petitioner's emotional problems were largely situational and related to her husband's attitude toward her and treatment of her. He also testified that three days prior to the trial, he had received a threatening telephone call from respondent who accused him of ruining his marriage and going against his wishes by continuing to treat his wife.

On cross-examination, Dr. Alexander testified that respondent had been his patient prior to petitioner becoming his patient and he had seen respondent individually for six months on a weekly basis; that respondent was very disturbed because he was on the verge of being expelled from the graduate school's doctoral program and because of litigation he had brought against his previous psychiatrist; that respondent had discussed his wife's emotional problems and attributed them to her relationship with her family. When Dr. Alexander was asked by petitioner's attorney as to the reason that he had treated petitioner free of charge for many years, he responded that if he had not treated her she would have regressed, collapsed in such despair that she would have "taken her life."

On redirect examination Dr. Alexander testified that he had observed the parties during joint sessions and noticed that respondent treated petitioner in an ill-tempered manner. Further, he observed that petitioner resented this type of treatment but that she would behave submissively. In his opinion, respondent is an angry, vengeful, and litigious man with some paranoidal tendencies.

After Dr. Alexander finished his testimony the petitioner rested her case and respondent made a motion for a directed finding which was denied by the court. Petitioner then moved to amend her complaint to add desertion and physical cruelty as grounds in addition to the originally pleaded grounds of mental cruelty. The motion was allowed.

Respondent took the stand and testified in his own behalf. Respondent testified that he never struck petitioner and that he never used foul language. He denied that his conduct forced petitioner to leave home and testified that his wife showed evidence of emotional problems stemming from mistreatment by her family and from her experience as a nun. Further, he stated that during the first two ...


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