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In re Marriage of Kirkpatrick

April 18, 2002

IN RE MARRIAGE OF
CLAYTON KIRKPATRICK, PETITIONER-APPELLEE, AND BARBARA KIRKPATRICK, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 00--D--189 Honorable Rodney W. Equi, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Respondent, Barbara Kirkpatrick, appeals from a judgment of dissolution of marriage that dissolved the bonds of matrimony between respondent and petitioner, Clayton Kirkpatrick. The judgment was based on the trial court's finding that respondent was guilty of extreme and repeated mental cruelty toward petitioner. Respondent contends that the trial court erred in making its finding because (1) her conduct in merely leaving petitioner was not mental cruelty but at most was desertion for less than one year which, under the specific provisions of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2000)), does not constitute a proper ground for the dissolution of a marriage and (2) the trial court's finding of extreme and repeated mental cruelty was against the manifest weight of the evidence. For the reasons that follow, we affirm.

The parties were married in Illinois on January 8, 2000. On June 25, 2000, petitioner filed a petition for the dissolution of the marriage. The petition alleged (1) that irreconcilable differences had caused the irretrievable breakdown of the marriage and (2) that, without cause or provocation by petitioner, respondent had been guilty of extreme and repeated mental cruelty toward petitioner. On November 13, 2000, at the start of an evidentiary hearing on the petition, the trial court granted respondent's motion for judgment on the pleadings with respect to the part of the petition based on the allegation of irreconcilable differences. The hearing then proceeded only on the allegation of extreme and repeated mental cruelty. In order to adequately address respondent's contention that the trial court's finding was against the manifest weight of the evidence, we set out in some detail the testimony and other evidence presented at the hearing.

At the evidentiary hearing, petitioner testified that his date of birth was January 8, 1915. Petitioner did not know respondent's age. January 8, 2000, the date of the wedding, was a Saturday. After the wedding, the parties returned immediately to petitioner's house in Glen Ellyn. According to petitioner, on the Wednesday following the wedding, respondent left his house and went to live in her own house in Barrington. When respondent left, she told petitioner that she needed a rest and that she wanted to take a vacation. Respondent took virtually all of her possessions with her.

Respondent had been petitioner's caretaker for about six months prior to the marriage. As petitioner's caretaker, respondent lived at petitioner's house and her duties included shopping, cooking, and cleaning. Petitioner hired respondent to live at his house "regularly." However, during the time that she was petitioner's caretaker, respondent was frequently absent from petitioner's house from Saturday night until Monday morning. Petitioner paid respondent $40,000 per year to be his caretaker.

Petitioner further testified that, prior to the marriage, when respondent was his caretaker, he gave respondent a charge card. Petitioner told respondent that she could use the charge card to purchase groceries for his household. After the marriage, respondent asked petitioner if she could continue to use the charge card. Petitioner told respondent, "yes, but don't abuse it." Petitioner had no knowledge as to whether respondent used the charge card between the time of the wedding on Saturday and the time respondent left his house the following Wednesday. Petitioner believed that after respondent left she used the charge card to purchase a new furnace, new air conditioning, and a new hot water heater for her home in Barrington. The charges for these items totaled more than $7,000. Petitioner had no interest in respondent's home in Barrington. Petitioner subsequently canceled respondent's credit card.

Petitioner further testified that after respondent moved out of his house she never came back. After respondent left, petitioner attempted to telephone respondent at her home in Barrington but got no response from respondent for several weeks. Petitioner first attempted to call respondent shortly after she left. Over the next several weeks, petitioner made "four or five" unsuccessful attempts to call respondent. During this period, petitioner did not receive any calls, letters, or notes from respondent.

Petitioner further testified that before respondent left she offered no explanation as to why she was leaving other than that she needed a vacation. In response to petitioner's queries as to how long respondent was planning to be gone, respondent stated that "she didn't know." When respondent left petitioner's home, she took her keys to petitioner's house and a garage door opener with her. About a week after respondent left, a neighbor of petitioner found the keys and the garage door opener in the neighbor's mailbox. There was no note with these items and petitioner did not receive any communication from respondent regarding the keys and the garage door opener.

Petitioner further testified that before respondent left she did not complain to him about anything that he had done. Petitioner could not recall any controversies between him and respondent that occurred between the time that they were married and the time that respondent left. Petitioner acknowledged that respondent did not like his adult children from a prior marriage, that respondent did not want to have anything to do with his children, and that respondent did not want his children to come to petitioner's house.

Petitioner further testified that at the time of his marriage to respondent he had medical problems. Petitioner's medical problems included trouble with his spine and legs, heart problems, and problems related to a prior series of strokes. Petitioner was under the care of physicians for these problems. Because of these medical problems, petitioner's physicians had recommended that he have a full-time caretaker. A full-time caretaker was necessary because petitioner's physicians had advised him that if he had another stroke it could be fatal unless he received immediate attention. Petitioner had discussed this need for full-time care with respondent. It was petitioner's expectation that if he married respondent she would be with him 24 hours a day. Petitioner believed that respondent understood this expectation.

Petitioner further testified that when respondent left she did not make any arrangements to have someone else take care of him. Immediately after respondent left, one or the other of petitioner's sons came to petitioner's home from time to time to check on petitioner. However, petitioner was without full-time care. Petitioner subsequently hired another full-time caretaker.

Petitioner further testified that for years prior to his marriage to respondent he had been on various medications. After respondent left, petitioner began taking additional medications that he had not previously taken. One of these medications was Zoloft. Petitioner testified that he was taking Zoloft for "depression and a few other things, loss of memory, unconscious fears of things and things like that where I was not cogitating very well." Before respondent left, petitioner had not suffered from such mental difficulties. Petitioner presented a document that was described as a document that a pharmacist gave petitioner when he obtained the Zoloft. The document was admitted into evidence. Petitioner also began taking another medication after respondent left. This medication, which petitioner could not recall the name of, was for the relief of tensions. Petitioner described his physical condition since respondent left by stating, "[w]ell, I'm an old man and my health continues to erode and I think probably I'm less capable of living well than I was at that time."

Petitioner further testified that he never received an explanation from respondent as to why she left his home on the Wednesday following their wedding. After respondent left, petitioner first talked to respondent in a telephone conversation with her about three or four weeks later. Petitioner and respondent subsequently had several additional telephone conversations. During one of these conversations, petitioner asked respondent if she was coming back. Respondent stated that she wanted to come back but did not know when that would be. During one of these phone calls, respondent asked petitioner about the possibility of repairing the marriage. Petitioner testified that he ducked the question and respondent then hung up. In subsequent calls and letters, respondent stated that she wanted to return to petitioner's home. However, respondent never returned. Petitioner testified that it was his desire to have his marriage dissolved.

On cross-examination, petitioner acknowledged that during the entire time that he knew respondent, both before and after the marriage, respondent never acted toward him in anything other than a loving, caring manner. After respondent left, petitioner never told respondent that he wanted her to come back with him. Petitioner explained that after respondent left he began taking Zoloft for the troubles that he was having with his brain, which "wasn't functioning very well." Petitioner considered respondent's leaving to be a factor in his brain not functioning very well because he was upset by her leaving and her refusal to talk to him for several weeks. Petitioner testified that he married respondent because he thought it would be a good marriage and because he "figured if she was married she would stay with [him], whereas before she would spend a lot of time in Barrington." Petitioner's principal concern after respondent left was that respondent was no longer in his house to take care of him. Petitioner estimated his net worth to be about $12 million.

Petitioner acknowledged that he signed an answer to a bill of particulars that respondent had filed. At respondent's request, the trial court took judicial notice of one of petitioner's answers to the bill of particulars. (We conclude that the trial court viewed the answer as a judicial admission.) That answer stated, "petitioner takes several prescription medications for various physical ailments; [h]owever, none are directly related to the emotional tension suffered as a result of the petitioner's failed marriage."

On examination by petitioner's attorney, respondent testified that her date of birth was February 3, 1939. After respondent and petitioner were married, respondent initially stayed with petitioner in his house. However, respondent was currently residing in her own house in Barrington. According to respondent, she left petitioner's house on the Thursday following the wedding. Respondent testified that she tried to come back the following Sunday. On that Sunday, respondent went to petitioner's house. However, when respondent arrived at petitioner's house she did not go in because, based on the cars parked in the driveway, respondent believed that all of petitioner's children were in the house. Respondent walked up to the front door but decided not to go in because "it would just be nothing but yelling and screaming. I didn't want any part of it." Respondent has not gone back to petitioner's house since that Sunday. Respondent acknowledged that she dropped her keys to petitioner's house and her garage door opener in the mail box of one of petitioner's neighbors.

After leaving petitioner, respondent went to stay at her house in Barrington. Respondent subsequently used the credit card that she had received from petitioner to purchase a furnace and air conditioning for her house in Barrington. Respondent used the credit card because the furnace went out and respondent did not have any other money. ...


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