McCarthy v. McCarthy

219 Ill. App. 369, 1920 Ill. App. LEXIS 161

• Court: Appellate Court of Illinois
• Decided: October 13, 1920
• Docket: Gen. No. 25,407
• Status: Published

Opinion

Mr. Justice Gridley

delivered the opinion of the court.

In the case of Ross v. Ross, 69 Ill. 569, decided in 1873, our Supreme Court affirmed the decree of the circuit court,'granting separate maintenance. Mr. Justice McAllister in delivering the opinion of the court says (pp. 570-2)

“The husband, by the common law, is bound to provide his wife with necessaries suitable to her situation and his condition in life. As proceeding from this general duty, the common law courts have held that if a husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. * * * Evans v. Fisher, 5 Gilm. 569. * * * These rules were based upon just and humane principles, but from the circumstances of their practical application the relief they were intended to afford was frequently beset with difficulties, and sometimes denied altogether, because the persons who trusted her on her husband’s account must do so at their peril, they being subject to the burden of showing a case where the law gave her the credit of her husband for necessaries suitable to her situation and his condition in life. * * * Now, it was the inadequacy of the common law remedy, and the refusal of courts of equity to take jurisdiction for the enforcement of the husband’s duty to furnish support and maintenance for his wife, that induced the legislature to pass the act of 1867, providing that married women who, without their fault,- are living separate and apart from their husbands may have their remedy in equity, in their own respective names, against their respective husbands, for a reasonable support and maintenance, to be allowed with reference to the condition of the parties in life and the circumstances of the respective cases, * * #> The bill ip this case was filed under that statute by appellee, while living separate and apart from her husband, and the only question presented is, whether she was so living separate and apart from him under such circumstances as would clothe her with the right at common law to obtain support and maintenance upon his credit. To be so, it must be without her fault. If she left his house to live apart from him, either in consequence of improper treatment, or he assented to or acquiesced in her leaving, he is liable for her necessary support, and to that extent she had credit on his account in the community, as was laid down by this court in Evans v. Fisher, above cited. ’ ’

The writer of the opinion then proceeds to analyze the testimony and it is further said (p. 573): “Appellant’s conduct towards appellee had a direct tendency to drive her from the home, and it is a fair inference, from all the evidence, that he so intended it. ’ ’ Then, after setting forth the contents of a letter written by the husband to the wife about three months after she left him, it is said (p. 574): ‘‘ This letter * * * shows appellant’s acquiescence in her living apart from him, and brings the case fairly within the common-law rule of making him liable for her necessary support. ’ ’

In 1877 the legislature re-enacted said separate maintenance statute of 1867, and in 1891 amended it, but the amendment did not materially change the substance of the 1867 statute. (3 Jones & Add. Stat. p. 3346, par. 6159.)

In the case of Johnson v. Johnson, 24 Ill. App. 80, 82, decided in 1887, the Appellate Court for this district, in affirming a decree for separate maintenance, said: “A woman’s life may be made miserable and cohabitation with her husband made unbearable by other means than the inflicting by him of blows upon her person.” The decree was also affirmed by our Supreme Court (Johnson v. Johnson, 125 Ill. 510) and that court, by Mr. Justice Shope, says (p. 515):

“The statute * * * gave the right to the wife to maintain her bill for separate maintenance, but restricted.the right to cases where the living separate and apart from the husband was without her fault. The ‘fault’ here meant and contemplated is a voluntary consenting to the separation, or such failure of duty or misconduct on her part as ‘materially contributes to. a disruption of the marital relation.’ # * * No encouragement can be given to the living apart of husband and wife. The law and the good of society alike forbid it. But a wife who is not herself at fault is npt bound to live and cohabit with her husband if his conduct is such as to directly endanger her life, person or health, nor where the husband pursues a persistent, unjustifiable and wrongful course of conduct toward her, which will necessarily and inevitably render her life miserable, and living as his wife unendurable. * * * If the husband voluntarily does that which compels his wife to leave him, or justifies her in so doing, the inference may be justly drawn that he intended to produce that result, * * *. And if he so intended, her leaving him would, in the case put, be desertion on his part, and not by the wife.” ,

After reviewing the evidence in the case the court further says (pp. 518-19):

“That appellee was not wholly blameless, at all times, in respect of the troubles with her husband, or as patient under provocation as some women would have been, is, we think, apparent, and may be conceded without materially affecting her cause. There were occasional sallies- of passion and the use of harsh language, which, while it cannot be approved, would be no palliation, justification or excuse—if, indeed, anything could be—of the personal violence inflicted by the husband upon the wife, or for the persistent course of condifct toward and treatment of her, pursued by appellant, which would inevitably result, as he foresaw it must result, in estrangement and separation. The j;husband and wife must mutually bear with each other’s tempers' and dispositions. Mere ebullitions of temper, trivial delinquencies of conduct, and the like, cannot-be made the grounds for disrupting the family, nor a pretext for a course of conduct which necessarily produces that result. * * *

“ It is urg*ed that after the filing of the bill, appellant having requested appellee to return and live with him, she was hound to do so, and therefore the decree is erroneous. * * * Although appellant may have deserted appellee, or driven her away from him, it is undoubtedly true that the locus penit entice must be kept open for him; but if he offers to return, or to take her back, it must be in good faith and under circumstances giving reasonable assurance of amendment. On a former occasion she had, in consequence of his cruelty, left him and gone to her mother’s. He went after her and promised her better treatment. * * * She accepted of his repentance as genuine, and, relying on his promise, returned, but there was no amendment in his conduct. On the occasion referred to by counsel there was no repentance, no offer to do better, no promise of kindness, no protestation of respect or confidence,—only, as we have seen, an expression of his wish that she return and live as they had lived, or in separate rooms, if she preferred, and an implied doubt of her purity. She was not bound to return and receive the same treatment at his hands, nor return to his domicile and there live apart from him. It is the actual marriage of the parties—their living together as husband and wife in lawful wedlock—that the law favors, and that each has the right to demand. ’ ’

In Modjeski v. Modjeski, 209 Ill. App. 213, on appeal from a decree dismissing for want of equity the wife’s bill for separate maintenance, this branch of this Appellate Court reversed the decree and remanded the cause -with directions to hear evidence as to appellant’s expenses, solicitor’s fees, and a proper allowance for her support. In referring to the cases, among others, of Wahle v. Wahle, 71 Ill. 510; Johnson v. Johnson, 125 Ill. 510; and Porter v. Porter, 162 Ill. 398, it is said:

“From these cases we gather that a wife may be guilty of such fault as would prevent her from maintaining her suit: First, by conduct on her part which would give the husband just reason for divorce; second, by voluntarily consenting to a separation; third, by desertion although the time has not elapsed which would give the husband cause for divorce on that ground.”

In accordance with said directions the chancellor heard further evidence and entered a decree granting separate maintenance and awarding the wife a certain sum per month and solicitor’s fees and the case again came before this court and this decree was affirmed (Modjeski v. Modjeski, 215 Ill. App. 632, Abst.), and a petition for a writ of certiorari was denied by the Supreme Court.

It is a rule that the finding and decree of a chancellor in a separate maintenance suit, where he had the opportunity, as in the present ease, of seeing the witnesses and hearing them testify, should not be disturbed on appeal, except where the evidence clearly preponderates against such finding and decree (Porter v. Porter, 162 Ill. 398; Johnson v. Johnson, 125 Ill. 510, 514). Yet, after a careful review of the entire evidence in the present case, and in the light of the decisions above mentioned, we have reached the conclusion that the complainant is entitled to a separate maintenance, and that the decree of the learned chancellor, dismissing her bill for want of equity, is clearly against the weight of the evidence and should be reversed.

While it is apparent, as said in the Johnson case, supra, that she was not wholly blameless, or as patient under provocation as some women would have been, still, in our opinion, she was not guilty of any of the faults mentioned in the Modjeski case, supra, which would prevent her from maintaining her bill. Her conduct was not such as would entitle her husband to a divorce. She did not voluntarily consent to the separation, nor did she desert him. On the night the parties finally separated, July 12, 1917, he practically drove her from the family home. He admits that, during the stormy conference then had, he at one time “flashed his clinched fist” in her face, and said he would “break her back.” On a previous occasion, the morning of February 19,1917, he had threatened her life. He admits that he then twice flourished a revolver, though he says “he did not point the gun at her.” These actions on his part were inexcusable and cruel and we think that, from these actions and from some other actions disclosed in the record, the inference may be justly drawn that he intended to bring about a separation. The record further discloses that for at least a year before the final separation the parties did not have any relations as husband and wife; that he was at least indiscreet in his attentions to other women; that, when gossip came to her that perhaps he was unfaithful to her and she demanded explanations, he treated, her harshly, refused to malee any explanations, saying that it was “none of your business”; that after she had discovered certain entries made by him in a note book and had caused certain investigations to be made at the suggestion of a priest from whom she sought advice, resulting in at least a partial confirmation of her suspicions, he repeatedly and angrily refused to make any explanations whatsoever. We think that she was justified in repeatedly insisting that he explain his conduct and said entries; and that in this connection he pursued such a persistent and unjustifiable course of conduct towards her as would necessarily render her life miserable and living with him as his wife unendurable. And the record further discloses that, after the final separation, he said and did things which tend to show that he acquiesced in her leaving. He testified that she and her sister had been “snooping around” the family home several times, and that after complainant had, without his knowledge or consent, taken away some household effects, he “changed the locks on the doors to make certain that no one would enter the house,” He further testified that at a conference with complainant’s attorney, after the separation, he said he was “willing” to take her back, yet with this exception he had not said or done anything, subsequent to the separation, to “induce” her to return to him. Under the circumstances she was not bound to return. He made no promise of future kindness or better treatment. While some of the actions of complainant on August 12, 1917, were improper, it nevertheless appears that on that occasion he refused to let her enter the bedroom which she had formerly occupied.

For the reasons indicated the decree of the superior court is reversed and the cause is remanded with directions to hear evidence as to a proper amount to be allowed complainant for her separate maintenance, for solicitor’s fees and costs, and for other proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

Barnes, P. J. and Hatchett, J., concur.