198 Ill. App. 387 | Ill. App. Ct. | 1916
delivered the opinion of the court.
The errors assigned may be summarized as follows: That the court erred in entering the decree on the cross-bill (1) because the evidence of the alleged acts of extreme and repeated cruelty on the part of cross-defendant towards cross-complainant is not sufficient to warrant a decree of divorce; and (2) because, even if sufficient, it appears from the allegations of the cross-bill and from the testimony of cross-complainant that she had condoned said acts.
As to the first point we are of the opinion that the evidence of extreme and repeated cruelty on the part of cross-defendant is sufficient to warrant the decree.
Begarding the second point, counsel’s argument, as we understand it, is, that as it appears from the testimony of cross-complainant that the last act of cruelty complained of occurred about three weeks before December 1, 1913, on which date she went to a hospital, and as it further appears from her testimony that she continued to live with cross-defendant as his wife until December 1, 1913, the acts of cruelty were condoned. Under the facts and circumstances of this case we do not think that she is barred from obtaining the relief granted by the decree.
“Condonation is defined in the books as forgiveness, upon condition the injury shall not be repeated, and is dependent upon future good usage and conjugal kindness.”' (Farnham v. Farnham, 73 Ill. 497, 500.) “The authorities hold that condonation is not so strict a bar against a wife as against a husband, inasmuch as she may find it difficult to quit the common domicile, and often submits through necessity. Hence, condonation on the part of the wife is not pressed with the same vigor as condonation on the part of the husband.” (Duberstein v. Duberstein, 171 Ill. 133, 136.) “Forbearance to abandon him and sue, does not weaken her title to relief.” (Harrison v. Harrison, 20 Ala. 629, 646.) In Phillips v. Phillips, 1 Ill. App. 245, 249, it is held that the two offenses of adultery and extreme and repeated cruelty are essentially different in their nature, and that the same consideration, as respects condonation, cannot be equally applicable to both. In 9 Billing Case Law, p. 384, it is stated: “To constitute a revival of the condoned offense the offending spouse need not be guilty of the same character of offense as that condoned; any misconduct is sufficient which indicates that the condonation was not accepted, in good faith and upon the reasonable conditions implied.” (See Langdon v. Langdon, 25 Vt. 678, 679.) In the Farnham case, supra, a decree for divorce was granted the wife on the ground of extreme and repeated cruelty. On appeal by the husband it was contended that the cruelty had been condoned. Our Supreme Court, in affirming the decree, said (p. 500): “No acts of personal violence are proven subsequent to the alleged condonation, but there is evidence of abusive treatment by the use of opprobrious epithets. * * - * Cruel treatment does not always consist of actual violence. There are words of false accusation, that inflict deeper anguish than physical injuries to the person—more enduring and lacerating to the wounded spirit of a gentle woman, than actual violence to the person, though severe.” (See also, Sharp v. Sharp, 116 Ill. 509; Robbins v. Robbins, 100 Mass. 150.) In the present case the record discloses that the last act of physical violence committed by cross-defendant on the person of his wife was- committed three weeks before December 1, 1913; that during the three weeks subsequent to the commission of said act she continued to live with him; that on December 1, 1913, she went to a hospital and did not afterwards return to him but continued to live separate and apart from him; that within two months after she went to the hospital he filed a bill for divorce against her in the Superior Court, in which he publicly charged her with serious acts of extreme and repeated cruelty towards him, which charges, if untrue, probably wounded her deeply; and that when the cause was called for trial, and after her cross-bill had been filed, he made no attempt to prove his charges against her and did not dispute her testimony as to his cruelty. If his repeated acts of cruelty were condoned by her for the reason urged, we are of the opinion that his conduct towards her, so far as disclosed, subsequent to her going to the hospital, does not show “good usage and conjugal kindness,? 5 and that her condonation, if any there was, is no bar to her obtaining the relief of an absolute divorce. Furthermore, the cross-defendant in his answer to the cross-bill of his wife did not plead the alleged condonation as a defense, and the point was not urged or even mentioned on the hearing. In 9 Ruling Case Law, p. 386, it is stated: “Condonation is an affirmative defense and like other affirmative defenses must be specially pleaded or insisted upon in the answer as a defense. * * * Though condonation is not specially pleaded or relied on as a defense, the court may in its discretion refuse to grant a divorce, where it appears from the proofs, properly taken, that the injured party, with a full knowledge of all the facts, has actually forgiven the injury, which has not been revived by subsequent misconduct. * * * The court should not, it would seem, exercise its discretion in this regard in order to deprive a much suffering wife of a divorce.” (See also, Watkins on v. Watkinson, 68 N. J. Eq. 632, 638; Smith v. Smith, 4 Paige (N. Y.), 432, 434; Hoffmire v. Hoffmire, 7 Paige (N. Y.), 60).
It is also urged that the decree should be reversed because it appears that an arrangement existed between the parties as to a division of the property in the event a decree of divorce should be granted. We do not think that it can be inferred from the fact of the existence of such an arrangment as to property that there was collusion to obtain a divorce.
The decree of the Superior Court is affirmed.
Affirmed.
