Hollo v. Hollo

474 N.E.2d 827, 131 Ill. App. 3d 119, 85 Ill. Dec. 867, 1985 Ill. App. LEXIS 1634
Appellate Court of Illinois·Decided January 29, 1985·No. 5-83-0749·Published·Cited by 15 cases

Opinion

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.

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.

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Hollo v. Hollo, 474 N.E.2d 827, 131 Ill. App. 3d 119, 85 Ill. Dec. 867, 1985 Ill. App. LEXIS 1634 (Ill. Ct. App. 1985).

474 N.E.2d 827 (Hollo v. Hollo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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