Neely v. Neely

223 Ill. App. 168, 1921 Ill. App. LEXIS 234

Opinion

Mr. Presiding Justice O’Connor

delivered the opin- - ion of the court.

On August 20, 1919, Ruth J. Neely filed a bill for divorce against her husband, Edward R. Neely, on the ground of extreme and repeated cruelty. September 5, he answered the bill denying that he was guilty of the cruelty charged in the bill, and the same day filed a cross-bill in which he charged the complainant with wilful desertion and prayed for a divorce on that ground. On September 30, by leave of court, complainant filed an amended bill .for divorce on two grounds, viz.: (1) extreme and repeated cruelty, and (2) wilful desertion. October 3 following, the defendant filed an answer in which he made a general denial of the charges against him. October 20, by leave of court, he filed an amended answer wherein he denied the' charges in detail. Complainant answered the cross-bill, and filed a replication to defendant’s answer to the amended bill. The cause came on for hearing on the amended bill and cross-bill and after the hearing the court found for the complainant on the two grounds alleged in her amended bill. The marriage was dissolved and the complainant was awarded alimony and the custody of their two children. February 18, 1920, the complainant" filed a petition asking for a rule on defendant to show cause why he should not be punished for contempt for ■ failure to • pay the alimony. Two days afterwards, the defendant having failed to appear to answer the petition, he was found in contempt and a writ of attachment was ordered. Defendant afterwards answered. The matter was continued from time to time and the writ of attachment appears to have been quashed. April 14, complainant filed another petition endeavoring to enforce payment of the alimony awarded. The defendant answered the petition. The matter was continued from time to time and on April 30 an order was entered committing the defendant to the common jail of Cook county for a period not to exceed six months, or until he paid the alimony then amounting to $235. On July 1 following, this writ of error was sued out.

Defendant contends that since there is no evidence in the record the finding in the decree that “defend-, ant has been guilty of extreme and repeated cruelty since said marriage, as alleged in complainant’s bill of complaint,” is insufficient to sustain the decree on that ground. It is a general rule in chancery that a party in. whose favor a decree is entered must preserve, in the record, the evidence justifying the decree, as in such case' no presumption will be indulged that evidence sufficient to sustain the decree was heard, where such evidence does not appear in the record. Anri in such case a general finding that all the material allegations of the bill are true and proved and that the equities of the case are with the complainant is not sufficient to sustain such a decree. No evidence being preserved in the record, there must be specific findings of fact in the decree. Ohman v. Ohman, 233 Ill. 632. From a careful consideration of the authorities, there seems to have been some doubt whether this rule applied to divorce proceedings since such proceedings are, to a great extent, statutory and the parties may have a trial by jury. Berg v. Berg, 223 Ill. 209; Rybakowicz v. Rybakowicz, 290 Ill. 550; Shillinger v. Shillinger, 14 Ill. 147; Davis v. Davis, 30 Ill. 180; Hawes v. Hawes, 33 Ill. 286; Schmid, v. Schmid, 60 Ill. App. 174; Temple v. Temple, 134 Ill. App. 131; Bonnell v. Lewis, 3 Ill. App. 286.

In the Berg case the husband filed a suit for divorce ag’ainst his wife on the ground of desertion and extreme and repeated cruelty. She answered denying the charges and afterwards filed a cross-bill for separate maintenance charging her husband with extreme and repeated cruelty. The matter was submitted to a jury. They found the issues in favor of the wife on1 her cross-bill and also in her favor on the charges of desertion and cruelty made against her in the original bill. The court entered a decree on the verdict dismissing the original bill and granting relief under the cross-bill for separate maintenance. A writ of error was prosecuted to the Appellate Court where the decree was affirmed. Another writ was sued out of the Supreme Court. All of the evidence was not preserved in a bill of exceptions nor were the facts specifically set out in the decree except that the defendant was living • separate and apart from her husband without her fault. It was contended that inasmuch as the evidence upon which the decree was based was not preserved in any of the ways known to equity practice the decree should be reversed and that the verdict of the jury did not aid the decree since it was merely advisory. The court then stated that the general practice in chancery cases required the party who was granted affirmative relief in a decree to preserve the evidence, or else the decree must find specific facts that were proven on the hearing and that this duty devolved upon the party obtaining relief; that if this were not done, the decree would be reversed. Continuing, the court said (p. 211): “Some exceptions, however, to this general rule are found. In cases where the parties are entitled to a trial by jury the rule is different, and the evidence does not have to be thus preserved. This; has been held to be true in cases of divorce, and formerly in cases of mechanics’ liens, the presumption in such eases being in favor of the verdict until it is successfully impeached in some mode provided by law. * * * Thatcher v. Thatcher, 17 Ill. 66. ’’ The court then held that under section 7 of the chapter on divorce (Cahill’s Ill. St. ch. 40, ¶ 8), which provides that where the defendant denies the charges made in a bill for divorce, either party shall have tlie right to a jury trial, such jury trial is a matter of right and not merely optional with the court. The court there further held on the divorce issue raised on complainant’s bill the parties were entitled to a jury trial but that on the bill for separate maintenance there was no such right; that the verdict in the former case was binding but as to the latter it was merely advisory. The decree based on the verdict of the jury in the divorce suit was affirmed and that part of the decree based on the cross-bill was reversed on the ground of insufficient evidence. In the Rybakowics case a bill for divorce was filed. The defendant filed a cross-bill, the matter was heard before the chancellor and a decree of divorce entered. The court retained jurisdiction of the parties for the purpose of settling the property rights. Afterwards a supplemental decree was entered on this phase of the case and one of the parties being dissatisfied prosecuted an appeal to the Supreme Court. Mr. Justice Cartwright in delivering the opinion of the court said (p. 553): “There is no presumption that evidence sufficient to sustain a decree in chancery not appearing in the record was heard, and in order to support such a decree the specific fact's proved on the hearing must be found in the decree or preserved by a certificate of evidence. (Citing cases.) While this rule did not apply to the divorce case, where a jury trial was a matter of right, it applied to the hearing by the chancellor and the supplemental decree adjusting property rights, and it is contended that the supplemental decree cannot be sustained for a failure to comply with that rule. The evidence was not preserved, but since the passage of the act allowing oral testimony in chancery cases, it has been the settled practice to permit a recital of the ultimate facts proved in the decree, and if that is done the evidence need not be otherwise preserved.” In the Shilling er case, which was a divorce suit, the court said (p. 150): “It is not necessary that the evidence upon which the court acts should be preserved in the record; but it will be sufficient, if the record shows that the court heard evidence, and found the allegations of the bill to be true.” In the Homes case the court said (p. 289): “We have repeatedly decided that it is not necessary in a proceeding for a divorce, when the bill is taken for confessed, that the oral proof or evidence on which the court acted should be preserved in the record; it is sufficient that the record shows proof was heard sustaining the allegations of the bill.” Citing the Shilling er and Davis cases. In the Schmid case there was a careful review of the authorities and it was held that where a divorce suit was heard by the chancellor and a decree entered reciting that evidence had been heard and the issues were found in favor of the complainant, this was sufficient without finding the facts or preserving the evidence in the record. Mr. Justice Cartwright there dissented. In Bonnell v. Lewis, which, however, was not a divorce suit, the court, in considering whether the findings in the decree were sufficient, reviewed the authorities. At page 286 it is said: “It is not necessary to preserve in the record of a divorce suit the proofs heard by the court on a decree pro confesso.” Citing the Shilling er case.

From the foregoing authorities and others which we have examined, it appears that there is some doubt whether the general chancery practice, which requires the preservation of the evidence or the finding of specific facts in the decree, applies to divorce proceedings where the parties may have a jury trial. But there are- numerous decisions by this court and our Supreme Court applying the general chancery rule to divorce cases, but the point under consideration has not been expressly discussed. Some of these cases are Ohman v. Ohman, supra; Trenchard v. Trenchard, 245 Ill. 313; Rang v. Rang, 211 Ill. App. 385. In the Ohman case the evidence was not preserved and it was held that the finding of the decree that “the allegations in said bill of complaint are true, as therein stated, and the» equities of this case are with the complainant” was insufficient to sustain the decree. In the Trenchard case, which was a suit for divorce, the recital in the decree that the defendant had been “ ‘guilty of extreme and repeated cruelty as charged in complainant’s bill’ is wholly insufficient as a finding of facts, under the allegations of the bill, to sustain the decree.” Upon a careful consideration of the authorities, we are constrained to hold that where the evidence- is not preserved in the record and there is no verdict of a jury the general rule in chancery cases applies. And in the case at bar, since the evidence is not in the record and since there was no jury, the finding in the decree that the defendant was guilty of extreme and repeated cruelty as charged in the bill was wholly insufficient to sustain the decree.

On the question of the charge of desertion, the finding of the decree is: “The court further finds that subsequent to the intermarriage of the parties hereto the defendant has wilfully deserted and absented himself from the complainant with no reasonable cause for the space of over two years immediately prior to the filing of the bill of complaint in this cause.” It seems to be conceded, as indeed we think it must, that this finding would, in some cases, be sufficiently specific to sustain a decree. But counsel for defendant argues that it is insufficient in the instant case because it appears from the bill of complaint that complainant was compelled to leave defendant by reason of defendant’s alleged acts of cruelty; that this constitutes constructive desertion on the part of defendant, and, therefore, the finding in the decree on the question of desertion should find the specific acts of cruelty. We think the argument is unsound. The finding in the decree on the charge of cruelty is wholly insufficient, not on the presumption that the court did not hear sufficient evidence to warrant the finding, but on the rule of practice announced in the cases cited requiring that the evidence be preserved or that specific findings be made in the decree. In other words, the rule is that where evidence is not preserved in the record a' general finding in the decree that the allegations of the bill are proved is not sufficient to sustain the decree because it will not be presumed that sufficient evidence was heard. But such finding is not held insufficient on the presumption that the court did not hear sufficient evidence. In the instant case, we are of the opinion that the finding in the decree on the question of desertion is sufficiently specific. Rybakowicz v. Rybakowicz, supra.

It is further argued that complainant, by filing what she designated an amended bill, abandoned the original bill and that the allegations of the amended bill in reference to complainant’s residence are insufficient to invest the trial court with jurisdiction. The original bill was filed August 20, 1919, and alleged that complainant was and had been an actual resident of the City of Chicago, County of Cook and State of Illinois for upwards of one year last past immediately preceding the filing of the bill. The so-called amended bill was filed September 30, 1919, and the allegation there is that complainant “is now and has been for upwards of one year last past Immediately preceding the filing of this bill of complaint, an actual resident of the City of Chicago, County of Cook and State of Illinois.” The decree recites that the cause came on for hearing on the amended bill, the amended answer, replication thereto, defendant’s cross-bill and upon the testimony of witnesses given in open court, all the parties being represented. The court found that the complainant was an actual resident of the State of Illinois and had been such for “more than - one year prior to the commencement of this suit,” and further found the defendant guilty of wilful desertion “for a space of over -two years immediately prior to the filing of the bill of complaint in this cause.” While there is some ambiguity in the allegations of the amended bill, we think, upon a consideration of the entire record, that it sufficiently appears that the complainant alleged and the decree found that she was and had been, a resident of Illinois for more than one year immediately prior to the filing of the suit. This is sufficient.

Further objection is made that the decree is insufficient because it finds that complainant is a resident of the State of Illinois but does not find that she is a resident of Cook county. In the original and so-called amended bill the averment was that complainant was a resident" of the City of Chicago, County of Cook and State of Illinois, and defendant in his answer to the amended bill admits that complainant is a resident of the City of Chicago. This is sufficient. Lyons v. Lyons, 272 Ill. 329. Nor do we think the point made by the defendant that the decree should be reversed because it fails to dispose of defendant’s cross-bill is tenable. It recites that the case came on for hearing on the pleadings including the cross-bill. Counsel for defendant in their brief say: “It is apparent, therefore, that defendant in error’s amended bill and plaintiff in error’s cross-bill were heard and considered by the court. Under these circumstances the decree should have disposed of the issues raised by the cross-bill.” We entirely agree with counsel’s contention that the proper procedure would be to dismiss- the cross-bill, but we think that this error is not substantial for it is apparent, as counsel say, that the court heard the issues raised by the cross-bill. Since the decree was in favor of the complainant and against the defendant, it in substance disposes of the cross-bill against him. _ In these circumstances we feel that we would not be justified in disturbing the decree.

The decree of the superior court of Cook county is affirmed.

Affirmed.

Thomson and Taylor, JJ., concur.