57 N.E.2d 366 | Ill. | 1944
Dr. Julius G. Levy, as plaintiff, instituted suit for divorce from his wife, Elizabeth Levy, upon the grounds of extreme and repeated cruelty. The complaint, as amended, specified five different acts of physical cruelty in addition to general charges of improper conduct such as use of profane language, false accusations of infidelity and destruction of professional business through unseemly demeanor before patients. Mrs. Levy filed an answer denying all material allegations and also a counterclaim for separate maintenance because of the cruelty of plaintiff. Both plaintiff and defendant ask for custody of two minor children, and, in addition, the defendant requested an order directing Dr. Levy to provide for the care, support and education of said children. A trial before the court without a jury resulted in a decree of divorce for plaintiff. The counterclaim of defendant was dismissed for want of equity, but Mrs. Levy was awarded the custody of the two minor children with a weekly allowance for their support and education. The Appellate Court reversed the decree and directed the trial court to reconsider defendant's counterclaim for separate maintenance.(Levy v. Levy,
The parties herein were married in 1923 and lived together until August 4, 1942. They have two children, a daughter, Claire, and a son, Jerome, who were fourteen and ten years of age, respectively, when this suit was commenced in August, 1942. Since completing his education the plaintiff has specialized in obstetrics and apparently receives a rather substantial income from such practice although that is denied by him. Very little evidence was given on this point, but no complaint is made about the allowance of $60 per week and thus we have no occasion to further consider the same. Mrs. Levy is also a university graduate and was admitted to the bar of Illinois shortly before her marriage, but has not practiced since that time. She underwent a kidney operation in 1938 and still complains of poor health. A maid was employed in the home during most of the married life of the parties and the family has had many other comforts.
Without detailing the testimony of witnesses, we are satisfied from the record herein that plaintiff was corroborated in his proof of the following successive acts of cruelty by defendant: That she struck him on the head with a book; that on two occasions she scratched him on the face and cursed him in the presence of patients at the office; that she struck him with a folding chair and stick; and that she threw a statuette (which did not hit plaintiff) and kicked him. The decree of the trial court so found and these acts of cruelty were likewise accepted by the Appellate Court. Although not specifically mentioned by the Appellate Court, it is also apparent from the record that Dr. Levy committed these acts against defendant: Hit her wrist with a broomstick with such force as to break both a bone and the broomstick; kicked her and bruised her about the arms and body; called her vile names, told her she was too old for him and that he wanted a young wife, suggesting that he or she go to a hotel with another *182 woman or man so there would be cause for divorce; and, held her up in scorn before their children.
In view of the foregoing statement of facts, what are the correct rules of law to be applied? The Appellate Court, after summarizing the acts of cruelty by the defendant towards her husband, stated that the question was: "Assuming the acts to be properly proved, do they as a matter of law constitute sufficient cause for divorce on the grounds of extreme and repeated cruelty?" The court then referred to the case of Teal v. Teal,
Considered alone and as an abstract proposition of law, we could readily agree with plaintiff that the above-quoted conclusion of the Appellate Court is erroneous. While the opinion of this court in the Teal case does contain some unguarded suggestions to the effect that slight acts of violence by the wife against the husband do not constitute extreme cruelty so long as there is no reason to suppose that he cannot by reasonable exercise of his marital powers protect himself, yet that decision is otherwise replete with statements which we believe state the correct rule of law in Illinois applicable to such cases as the one here at hand. On page 212 of the Teal case, for example, we find the following: "Counsel for the defendant in error state in their brief as a rule of law that if the husband could have *183
protected himself by the exercise of his marital powers or physical strength no divorce can be granted. There is no such rule of law. On the contrary, it has been expressly announced that he may not achieve domestic tranquility by exchanging blow for blow. (Garrett v. Garrett,
We have attempted to trace the origin of the statement quoted in many cases to the effect that slight acts of violence on the part of a wife do not entitle a husband to a divorce on the grounds of cruelty so long as there is no reason to suppose that he will not be able to protect himself by proper exercise of his marital powers. It appears *184
first to have been used in the case of De La Hay v. De La Hay,
It is true that the physical condition of the parties involved must be taken into account and each case considered upon its own facts. Thus, while a light slap ordinarily would not constitute extreme cruelty as to the average, healthy person the same act might well have a different effect upon one who is quite frail or an invalid. It is only in this respect that we might differentiate acts of cruelty or calibrate marital violence in degrees. However, the acts of cruelty committed by Mrs. Levy upon her husband were not slight in any proper sense of the word. The plaintiff could have exercised no amount of marital powers which would have protected him from the sudden and unwarranted outbursts of anger at least twice displayed by defendant when she sought him out at his office. A husband is not required to spend his domestic and even his professional hours on the alert for slaps, clawing fingernails, *185 flying objects and humiliating scenes. If the above-stated acts of cruelty by the defendant were unprovoked and plaintiff stood faultless, unquestionably he would be entitled to a divorce. All contrary inferences by the Appellate Court from the Teal case are erroneous.
In our opinion, however, the decision of this case can not stop with a consideration of Teal v. Teal,
Under such circumstances, the rule long ago announced inDuberstein v. Duberstein,
For similar reasons, it would be improper to remand the case to the trial court for reconsideration of the counterclaim for separate maintenance as directed by the Appellate Court. The statute permitting a husband or wife to sue in equity for separate maintenance restricts relief to cases where the living separate and apart is without fault of the party seeking redress. Thus, in Bielby v. Bielby,
Finally, consideration should be given the testimony of defendant to the effect that she is willing to resume normal marital relations with plaintiff for the sake of the children. Perhaps she intended that it also would be for the sake of the parties hereto and, of course, that is highly commendable. However, she only made such statements on the witness stand and the record contains no other proof that such an offer was made to the plaintiff in good faith. Accordingly, she has thus far failed to bring herself within the applicable rule stated in Hoffman v.Hoffman,
The judgment of the Appellate Court is reversed and the cause remanded to the superior court of Cook county, with directions to dismiss both the complaint and the counterclaim for want of equity.
Reversed and remanded, with directions. *188