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Hollo v. Hollo

OPINION FILED JANUARY 29, 1985.

BRIAN W. HOLLO, PETITIONER-APPELLEE,

v.

ANNA MARIE HOLLO, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Montgomery County; the Hon. Don Beane, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Respondent, Anna Marie Hollo, appeals from a judgment entered by the circuit court of Montgomery County dissolving the second marriage of respondent and petitioner, Brian W. Hollo.

The first marriage of the parties was dissolved on December 11, 1981. One child, Michael Brian Hollo, was born to the parties during their first marriage. The parties were remarried on June 25, 1982, and they separated on August 11, 1982, at which time respondent left the State with Michael to eventually take up residence in Leisure City, Florida. Petitioner commenced these proceedings on August 12, 1982, at which time both petitioner and respondent were 22 years old and Michael was 13 months old. Petitioner was employed as a correctional officer at the Graham Correctional Center in Hillsboro. Subsequent to their separation, respondent obtained employment as a nurse's aide for Health Medical Systems in Miami, Florida.

The first issue raised by respondent's appeal is whether the trial court erred in finding that respondent had, without cause or provocation by the petitioner, been guilty of extreme and repeated mental cruelty. The court also awarded custody of Michael to petitioner. Respondent challenges this portion of the judgment on the grounds: (1) that the circuit court lacked the jurisdiction to make a child-custody determination; (2) that in awarding custody the circuit court failed properly to consider all the relevant factors contained in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 602); (3) that the court's finding that it was in Michael's best interest that the child be placed in the custody of petitioner is against the manifest weight of the evidence; and (4) that the trial judge was prejudiced against her.

The trial proceedings were conducted on a bifurcated basis, with the grounds being tried first. The only evidence introduced at the hearing on the grounds was the testimony of petitioner and his mother. That evidence is undisputed. Petitioner testified that six days after their second wedding on June 25, 1982, respondent informed him that their marriage was a mistake and that she was going to leave him as soon as she was able to acquire enough money to obtain a divorce. He testified that she repeated this threat some 30 times before she finally did leave on August 11, 1982. Petitioner testified that since their separation neither party had spoken to the other. The respondent has a minor daughter by another father. Petitioner testified that respondent would repeatedly remind him of this fact, particularly when petitioner would attempt to discipline the child. Petitioner also stated that on one occasion three or four days prior to their separation, respondent struck him and then threatened to kill him while he slept. Petitioner testified that respondent's conduct caused him to feel helpless, with an uncomfortable anticipation but never the certainty of something happening.

The testimony of petitioner's mother corroborated most of what petitioner had said. In particular, she testified that respondent's conduct had caused her son to be "very, very nervous." She testified that he could not sit still for any period of time. Further, she stated that once the respondent left, her son's condition improved and he calmed down.

At the conclusion of petitioner's mother's examination, the trial judge stated that he had heard enough evidence. Respondent's counsel had previously indicated no witnesses would appear on her behalf. After hearing the arguments of counsel for both petitioner and respondent, the circuit court found that, without cause or provocation by petitioner, respondent had been guilty of extreme and repeated mental cruelty. (Ill. Rev. Stat. 1983, ch. 40, par. 401(2).) At trial, and now again on appeal, respondent has argued that there was not sufficient evidence to support that finding.

• 1 Section 401 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 401) is authority for the circuit court to enter a judgment of dissolution of marriage if the court finds that, without cause or provocation by petitioner, respondent has been guilty of extreme and repeated mental cruelty. (Ill. Rev. Stat. 1983, ch. 40, par. 401(2).) The statute, however, provides no definition of mental cruelty. The reported decisions in cases where our courts have had occasion to consider the proof required to establish mental cruelty have employed such a variety of phraseology that we are drawn to the conclusion that a determination of whether given evidence constitutes proof of mental cruelty depends upon the particular circumstances present in each case. Furthermore, the assessment of these factors is best done by the circuit court. It is obvious to us that it is for this reason that great deference is given to circuit court findings as to the existence of the requisite mental cruelty, as in In re Marriage of Burrows (1984), 126 Ill. App.3d 752, 467 N.E.2d 987, and In re Marriage of Naguit (1982), 104 Ill. App.3d 709, 433 N.E.2d 296, or its absence, as in In re Marriage of Rittmeyer (1982), 107 Ill. App.3d 892, 438 N.E.2d 237, and In re Marriage of Semmler (1980), 90 Ill. App.3d 649, 413 N.E.2d 503.

• 2 Nevertheless, respondent urges that section 401 of the Illinois Marriage and Dissolution of Marriage Act requires the circuit court to refrain from entering a judgment of dissolution of marriage on the ground of mental cruelty unless the court finds that as a result of the conduct complained of the petitioner suffered actual tangible harm. None of the cases cited to us by respondent hold that suffering actual tangible harm is the sine qua non of mental cruelty. Indeed, had the courts made such a requirement, we would be hard pressed to then explain the results in cases such as In re Marriage of Burrows (1984), 126 Ill. App.3d 752, 467 N.E.2d 987, In re Marriage of Nilsson (1980), 81 Ill. App.3d 580, 402 N.E.2d 284, Morris v. Morris (1979), 70 Ill. App.3d 125, 388 N.E.2d 129, Jackson v. Jackson (1974), 24 Ill. App.3d 810, 321 N.E.2d 506, and Hayes v. Hayes (1969), 117 Ill. App.2d 211, 254 N.E.2d 288. In each of these cases, under proof similar to the case now before us, a finding of mental cruelty was upheld on appeal. In these cases, both the conduct complained of as mental cruelty and the adverse effect thereof on the complaining spouse's health were considered. In the case at bar, the respondent's conduct was of a nature to fall well within accepted definitions of mental cruelty. The circuit court was able to observe the petitioner and gauge the effect of respondent's conduct upon him and properly could have concluded that respondent's conduct had an adverse effect upon petitioner's mental health in spite of the absence of tangible physical harm. In view of the precedents of the above-cited cases, the trial court's finding of mental cruelty in the instant case was not against the manifest weight of the evidence.

• 3 We next address the first of the several challenges respondent directs against the circuit court's custody determination. Respondent's first claim is that the circuit court lacked the jurisdiction to make a custody determination. By virtue of section 601 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 601), section 4 of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104) (hereinafter referred to as the UCCJA) governs jurisdiction of the court to make a child-custody determination. Little significant case law has developed under this section, and all of the cases respondent cites to this court are factually distinguishable. The law in force at the time these proceedings were commenced provided:

"(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

1. this State

(i) is the home state of the child at the time of commencement of the proceeding, or

(ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent ...


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