Mr. JUSTICE DIXON
delivered the opinion of the court:
Betty J. Gross, the plaintiff, sued John D. Gross, defendant, for divorce on the grounds of mental cruelty. Defendant answered and counterclaimed on the ground of adultery. The Circuit Court of Hancock County denied plaintiff’s prayer and granted defendant husband a divorce on the ground of adultery. The court ordered defendant to pay plaintiff alimony in gross and her attorney fees. The .defendant appeals from that part of the judgment awarding alimony.
The plaintiff filed her complaint on July 3, 1972. The defendant set up the defense of recrimination (adultery) and filed a counterclaim alleging that the counter-defendant had for more than 18 months prior thereto been living in open and notorious adultery with one William Hester and requesting partition of the only real estate which was co-owned by the parties.
The plaintiffs original complaint did not request an award of alimony nor did it allege any special equities in real estate owned in the name of the defendant. During the course of the trial the plaintiff was given leave to amend her complaint to allege that during the marriage she had made payments on real estate taxes and general repairs on the property from funds earned while operating the family business, and still later the plaintiff was granted leave to file a second amendment to the complaint to include a request for alimony and attorney fees.
The plaintiff, aged 46 at time of trial, and the defendant, aged 48 at time of trial, were married on the 10th day of August, 1946. To this marriage there was born one son who is now a married adult and self-supporting.
The defendant at the time of marriage and thereafter was a partner with his mother and father in the operation of a jewelry store in Mt. Sterling, Illinois, known as L. A. Gross and Son Jewelry. Prior to the impairment of his eyesight, he was a skilled watchmaker and actively shared the management of the jewelry store. In the year 1963, the defendant’s father passed away. Shortly thereafter the plaintiff became actively engaged in the operation of the jewelry store, continuing to be so until March, 1972. The defendant’s mother passed away after the commencement of this proceeding.
In 1958 the defendant acquired a farm of approximately 90 acres and a rental residence by inheritance from an aunt; later, he acquired a remainder interest in the residence that his parents occupied. The title to the jewelry store was acquired by the three partners as joint tenants in the year 1946.
The defendant has a history of intemperance which increased in intensity after the death of his father and the loss of his eyesight which precluded the use of his skills in the watch-repair business.
At about the same period the defendant’s driver’s license was revoked and he has not operated an automobile since. The plaintiff and defendant resided in a home located at the east edge of Mt. Sterling, approximately lVz miles from the store location. The plaintiff, from necessity, drove the defendant to and from work. The defendant contends that the plaintiff would no longer drive him back and forth, making it necessary for him to move into one of the apartments above the store. The plaintiff disputes this claim although in her complaint she alleges that they have not lived together as man and wife since May, 1965.
The record is full of testimony as to plaintiff’s mental and physical anguish attributable fully to defendant’s drinking and his inattention to business since 1965. In fact, defendant concedes that it would be ridiculous to portray himself as a kind, dutiful and affectionate husband. . For a short period of time the plaintiff and their son resided with the defendant in one of the apartments above the store. The plaintiff states that she left the apartment because defendant’s mother had rented it to another.
The income from the various properties progressively deteriorated and the gross sales from the jewelry store during this period were: in 1969— $36,576; 1970 — $30,792; and in 1972 — $23,280. The reportable incomes which the plaintiff assisted in compiling were: In 1971 — $436.80; 1970— $225.40; 1969 — $476.45; and 1968 — $2,352.45. Plaintiff and defendant each individually took their personal and living expenses from the cash drawer, the exact amount each took being unknown.
In 1967 the plaintiff had an operation in a Macomb hospital, at which time she was visited by one Bill Hester who resided in Plymouth, Illinois. At the same time and in the same hospital, the wife of Bill Hester also had surgery. Prior to her marriage to the defendant, the plaintiff and Mr. Hester had been engaged to be married. The plaintiff does not know how many times Mr. Hester drove to Mt. Sterling to see her prior to 1971 but thinks it may have been six or seven times. On such occasions the defendant was not present. After Mr. Hester’s wife died in 1970, he phoned the plaintiff approximately once each week.
During the month of February, 1971, the plaintiff, without the knowledge of the defendant, moved to the home of Bill Hester in Plymouth, Illinois, with whom she continues to reside. From February, 1971 to March, 1972, the plaintiff would drive daily from Mr. Hester’s home to the jewelry store in Mt. Sterling where she worked during the day and then returned at night to Mr. Hester’s home at Plymouth, Illinois, a distance of approximately 54 miles.
The defendant husband became aware of the situation only a short time prior to plaintiff’s permanent departure in March, 1972.
The plaintiff’s testimony as to the defendant’s conduct included three instances of physical violence, one approximately 15 to 20 years ago which she later assumed resulted in a broken nose, a black eye incurred when she lived in the apartment with the defendant and a kick on the ankle or leg on the day of her departure, together with considerable testimony as to her mental anguish arising from defendant’s drinking and his inattention to the store’s business problems or her difficulties in the repair and maintenance of the marital home.
Plaintiff also expressed concern, although never threatened, because she had on many occasions observed defendant with a gun in his pocket. Defendant had a gun collection and had it for protection of the jewelry store. Plaintiff on occasions also carried a handgun.
The plaintiff contends that, in spite of her previous engagement to Mr. Hester, the fact that she has spent almost every night since February 1971 with him, including an overnight trip to Missouri to see her son at school and staying overnight in a motel at Gulfport, Illinois, and their financial arrangements, she is merely a housekeeper and has never engaged in sexual intercourse with Mr. Hester.
Plaintiff receives no set compensation for her services as housekeeper. She originally deposited Mr. Hester’s checks and was authorized to write checks on his account with which she paid the household expenses. At the present time she merely cashes his check and pays certain household expenses in cash.
In August, 1972, the plaintiff purchased a residence in Plymouth, Illinois, and Mr. Hester moved into the home with her. She does all the laundry and cooks the meals for Mr. Hester. Mr. Hester does the yard work and repairs to the house.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. JUSTICE DIXON
delivered the opinion of the court:
Betty J. Gross, the plaintiff, sued John D. Gross, defendant, for divorce on the grounds of mental cruelty. Defendant answered and counterclaimed on the ground of adultery. The Circuit Court of Hancock County denied plaintiff’s prayer and granted defendant husband a divorce on the ground of adultery. The court ordered defendant to pay plaintiff alimony in gross and her attorney fees. The .defendant appeals from that part of the judgment awarding alimony.
The plaintiff filed her complaint on July 3, 1972. The defendant set up the defense of recrimination (adultery) and filed a counterclaim alleging that the counter-defendant had for more than 18 months prior thereto been living in open and notorious adultery with one William Hester and requesting partition of the only real estate which was co-owned by the parties.
The plaintiffs original complaint did not request an award of alimony nor did it allege any special equities in real estate owned in the name of the defendant. During the course of the trial the plaintiff was given leave to amend her complaint to allege that during the marriage she had made payments on real estate taxes and general repairs on the property from funds earned while operating the family business, and still later the plaintiff was granted leave to file a second amendment to the complaint to include a request for alimony and attorney fees.
The plaintiff, aged 46 at time of trial, and the defendant, aged 48 at time of trial, were married on the 10th day of August, 1946. To this marriage there was born one son who is now a married adult and self-supporting.
The defendant at the time of marriage and thereafter was a partner with his mother and father in the operation of a jewelry store in Mt. Sterling, Illinois, known as L. A. Gross and Son Jewelry. Prior to the impairment of his eyesight, he was a skilled watchmaker and actively shared the management of the jewelry store. In the year 1963, the defendant’s father passed away. Shortly thereafter the plaintiff became actively engaged in the operation of the jewelry store, continuing to be so until March, 1972. The defendant’s mother passed away after the commencement of this proceeding.
In 1958 the defendant acquired a farm of approximately 90 acres and a rental residence by inheritance from an aunt; later, he acquired a remainder interest in the residence that his parents occupied. The title to the jewelry store was acquired by the three partners as joint tenants in the year 1946.
The defendant has a history of intemperance which increased in intensity after the death of his father and the loss of his eyesight which precluded the use of his skills in the watch-repair business.
At about the same period the defendant’s driver’s license was revoked and he has not operated an automobile since. The plaintiff and defendant resided in a home located at the east edge of Mt. Sterling, approximately lVz miles from the store location. The plaintiff, from necessity, drove the defendant to and from work. The defendant contends that the plaintiff would no longer drive him back and forth, making it necessary for him to move into one of the apartments above the store. The plaintiff disputes this claim although in her complaint she alleges that they have not lived together as man and wife since May, 1965.
The record is full of testimony as to plaintiff’s mental and physical anguish attributable fully to defendant’s drinking and his inattention to business since 1965. In fact, defendant concedes that it would be ridiculous to portray himself as a kind, dutiful and affectionate husband. . For a short period of time the plaintiff and their son resided with the defendant in one of the apartments above the store. The plaintiff states that she left the apartment because defendant’s mother had rented it to another.
The income from the various properties progressively deteriorated and the gross sales from the jewelry store during this period were: in 1969— $36,576; 1970 — $30,792; and in 1972 — $23,280. The reportable incomes which the plaintiff assisted in compiling were: In 1971 — $436.80; 1970— $225.40; 1969 — $476.45; and 1968 — $2,352.45. Plaintiff and defendant each individually took their personal and living expenses from the cash drawer, the exact amount each took being unknown.
In 1967 the plaintiff had an operation in a Macomb hospital, at which time she was visited by one Bill Hester who resided in Plymouth, Illinois. At the same time and in the same hospital, the wife of Bill Hester also had surgery. Prior to her marriage to the defendant, the plaintiff and Mr. Hester had been engaged to be married. The plaintiff does not know how many times Mr. Hester drove to Mt. Sterling to see her prior to 1971 but thinks it may have been six or seven times. On such occasions the defendant was not present. After Mr. Hester’s wife died in 1970, he phoned the plaintiff approximately once each week.
During the month of February, 1971, the plaintiff, without the knowledge of the defendant, moved to the home of Bill Hester in Plymouth, Illinois, with whom she continues to reside. From February, 1971 to March, 1972, the plaintiff would drive daily from Mr. Hester’s home to the jewelry store in Mt. Sterling where she worked during the day and then returned at night to Mr. Hester’s home at Plymouth, Illinois, a distance of approximately 54 miles.
The defendant husband became aware of the situation only a short time prior to plaintiff’s permanent departure in March, 1972.
The plaintiff’s testimony as to the defendant’s conduct included three instances of physical violence, one approximately 15 to 20 years ago which she later assumed resulted in a broken nose, a black eye incurred when she lived in the apartment with the defendant and a kick on the ankle or leg on the day of her departure, together with considerable testimony as to her mental anguish arising from defendant’s drinking and his inattention to the store’s business problems or her difficulties in the repair and maintenance of the marital home.
Plaintiff also expressed concern, although never threatened, because she had on many occasions observed defendant with a gun in his pocket. Defendant had a gun collection and had it for protection of the jewelry store. Plaintiff on occasions also carried a handgun.
The plaintiff contends that, in spite of her previous engagement to Mr. Hester, the fact that she has spent almost every night since February 1971 with him, including an overnight trip to Missouri to see her son at school and staying overnight in a motel at Gulfport, Illinois, and their financial arrangements, she is merely a housekeeper and has never engaged in sexual intercourse with Mr. Hester.
Plaintiff receives no set compensation for her services as housekeeper. She originally deposited Mr. Hester’s checks and was authorized to write checks on his account with which she paid the household expenses. At the present time she merely cashes his check and pays certain household expenses in cash.
In August, 1972, the plaintiff purchased a residence in Plymouth, Illinois, and Mr. Hester moved into the home with her. She does all the laundry and cooks the meals for Mr. Hester. Mr. Hester does the yard work and repairs to the house.
She cannot remember the last meal she cooked for the defendant and did not do defendant’s laundry.
The phone in the home of the plaintiff is listed in the name of William Hester.
The plaintiff claims to have suffered a heart attack in 1971 which went undetected until an examination in September, 1972, and because of her heart condition and growths behind her knees, she is unable to be gainfully employed. She claims expenses of $282 per month and indebtedness of $7350, much of which was not established by written evidence of indebtedness. Her only source of income is an anticipated $50 a month from Mr. Hester for his room and board. Plaintiff did not at any time after her departure request funds from the defendant for support.
The defendant during the trial of the case suffered a stroke and was hospitalized for a period of seven weeks. He is physically unable to care for himself. His son and daughter-in-law now assist in the operation of the jewelry business and five with him in the former residence of his parents.
The plaintiff’s appraiser appraised the marital residence at $9,800, the rental residence at $8,500, the former parents’ residence at $13,500, the farm at $35,475 and the jewelry store building at $21,000.
The store indebtedness was approximately $4,000 when plaintiff became active in its management and approximately $3,000 when she left. During the interim of her participation it became necessary to place a $6500 mortgage on the farm, the proceeds which were used in the operation of the store. The mortgage has not been reduced.
The trial court found that the wife had not established any specific equities in the property owned by the husband but found that the plaintiff had worked in the store and carried responsibilities for some length of time. The court believed that her present physical disabilities restricted her work at gainful employment and that some provisions for alimony should be made. The court specifically ruled that it was not proceeding under section 17 of tire Divorce Act but was proceeding under section 18, i.e., the provision having to do with alimony either in installment payments or in gross. The court found the defendant’s equity in the real estate to be $72,000 and that one-fourth would amount to $18,000, which was ordered paid in lieu of periodic alimony. The court further ordered the payment of $1,000 for plaintiff’s attorneys fees and ordered partition of the marital residence held in joint-tenancy.
An erring wife often has an equitable or meritorious claim to a portion of the husband’s estate on the ground that she worked with him, or worked separately and pooled her money with his and so assisted him in acquiring the estate. Section 17 of our Divorce Act authorizes the trial court to make a just division of the property of the parties in satisfaction of the wife’s claims; a separate award of property is made which is distinct from alimony. Gebhardt v. Gebhardt, 18 Ill.App.3d 658; Neumark, Property Rights in Divorce, 62 Ill. B.J. 242 (1974). However, both parties in the instant case agree that the statute involved herein is section 18 of the Divorce Act (Ill. Rev. Stat., ch. 40, par. 19), which provides in pertinent part:
“When a divorce is decreed, the court may make such order touching the alimony and maintenance of the wife or husband, * * * from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just * *
Both parties agree, each citing Pohren v. Pohren, 13 Ill.App.3d 380, 384, that the statute does not refer to, and does not make an award to defendant depend on the question of fault and that they further agree that under certain circumstances the court is empowered by the statute to award alimony to a wife against whom a divorce is granted.
Appellant husband, however, contends that it is an abuse of discretion to award alimony to a spouse guilty of adultery, citing Ganzer v. Ganzer, 110 Ill.App.2d 394 (1969); Spitler v. Spitler, 108 Ill. 120 (1883); and Hickling v. Hickling, 40 Ill.App. 73 (1891), which appear to be the only Illinois cases on the exact point.
In Ganzer, the court after acknowledging that the trial court in its discretion and under proper circumstances might grant alimony to an erring wife stated, “However, it has long been held that where the misconduct of the wife has been so gross, as when she has been guilty of moral delinquency such as adultery, it would be an abuse of discretion to award her permanent alimony.” (10 Ill.App.2d 394, 398.)
■ Spitler held it to be an abuse of discretion to award permanent alimony to a wife who had deserted her husband to live in adultery with another man. In Hickling, where the marriage took place on 13 September and on the 7th day of October thereafter the adultery took place, an award of alimony in gross was reversed.
It is an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery. 24 Am. Jur. 2d Divorce and Separation §622 (1966); Annot, 9 A.L.R. 2d 1026, 1027 (1950); Annot., 34 A.L.R. 2d 313, 349 (1954); 16A I.L.P. Divorce § 154 (1971); 27A C.J.S. Divorce § 229(3)b (1959).
In the instant case the erring wife had taken up her illicit relationship with the paramour and continued to reside with him for more than 2Yz years prior to the time the decree was entered. She further evidenced no intention of discontinuing the relationship. Her conduct was not an isolated instance of indiscretion or a temporary affair of passion. We agree with Spitler, and Ganzer, supra, that it is an abuse of discretion to award her alimony and accordingly that part of the judgment awarding alimony to the plaintiff is reversed.
Reversed in part.