{ "id": 2600609, "name": "James O. Boyd, Plaintiff, v. Agnes Boyd, Defendant", "name_abbreviation": "Boyd v. Boyd", "decision_date": "1965-05-04", "docket_number": "Gen. No. 64-73", "first_page": "1", "last_page": "12", "citations": [ { "type": "official", "cite": "58 Ill. App. 2d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 NE2d 424", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill App2d 150", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5179109 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/16/0150-01" ] }, { "cite": "41 NE2d 786", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 NE2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "312 Ill App 655", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5643154, 5644236 ], "opinion_index": 0, "case_paths": [ "/ill-app/312/0655-02", "/ill-app/312/0655-01" ] }, { "cite": "26 NE2d 678", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "304 Ill App 507", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3306192 ], "opinion_index": 0, "case_paths": [ "/ill-app/304/0507-01" ] }, { "cite": "332 Ill App 454", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5043533 ], "opinion_index": 0, "case_paths": [ "/ill-app/332/0454-01" ] }, { "cite": "279 Ill 300", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4880446 ], "opinion_index": 0, "case_paths": [ "/ill/279/0300-01" ] }, { "cite": "314 Ill App 572", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3388166, 3388887 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/314/0572-01", "/ill-app/314/0572-02" ] }, { "cite": "344 Ill App 221", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2428924 ], "opinion_index": 0, "case_paths": [ "/ill-app/344/0221-01" ] }, { "cite": "334 Ill App 308", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2429718 ], "opinion_index": 0, "case_paths": [ "/ill-app/334/0308-01" ] }, { "cite": "110 NE2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "349 Ill App 99", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5103993 ], "opinion_index": 0, "case_paths": [ "/ill-app/349/0099-01" ] }, { "cite": "149 NE2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill App2d 260", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5183653 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/17/0260-01" ] }, { "cite": "74 ALR2d 318", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "53 NE2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "321 Ill App 512", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2424341 ], "opinion_index": 0, "case_paths": [ "/ill-app/321/0512-01" ] }, { "cite": "19 NE2d 412", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "299 Ill App 13", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5595001 ], "opinion_index": 0, "case_paths": [ "/ill-app/299/0013-01" ] }, { "cite": "167 NE2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill App2d 319", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5784580 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/25/0319-01" ] }, { "cite": "197 NE2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill App2d 134", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5268176, 5269388 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/47/0134-02", "/ill-app-2d/47/0134-01" ] }, { "cite": "185 NE2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5353121 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0342-01" ] }, { "cite": "141 NE2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill App2d 170", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5172295 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0170-01" ] }, { "cite": "87 Ill 250", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5341116 ], "opinion_index": 0, "case_paths": [ "/ill/87/0250-01" ] }, { "cite": "164 NE2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill App2d 123", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5209170 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/24/0123-01" ] }, { "cite": "65 Ill 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2620021 ], "opinion_index": 0, "case_paths": [ "/ill/65/0167-01" ] } ], "analysis": { "cardinality": 742, "char_count": 17035, "ocr_confidence": 0.481, "pagerank": { "raw": 1.7615992973928415e-07, "percentile": 0.7101226751057688 }, "sha256": "b0d451c0989cad4c0ef5f5feccdaaba1cf751f85961c8326e9248105913cb147", "simhash": "1:c84bf6293b138d47", "word_count": 2885 }, "last_updated": "2023-07-14T19:12:10.724902+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MORAN and GOLDENHERSH, JJ., concur." ], "parties": [ "James O. Boyd, Plaintiff, v. Agnes Boyd, Defendant." ], "opinions": [ { "text": "EBEESPACHEE, P. J.\nPlaintiff filed his complaint for divorce in September 1963, charging desertion in September 1961, and alleged that the parties were possessed of 80 acres of land in Monroe County; 2 houses in Dupo, real estate with house and trailer located in Dupo, and a lot with two trailers on Minnie Avenue, in Dupo, and restaurant equipment, all of which, he alleged, \u201cin equity is the plaintiff\u2019s property.\u201d The prayer of his complaint was for a' divorce \u201cand that all duties, rights and claims and obligations be determined and that the Court award plaintiff all real and personal property and that plaintiff have such other and further relief in the premises as equity may require.\u201d\nDefendant answered, denying the material allegations of the complaint and filed her counterclaim, in which she alleged, that on October 20, 1962, plaintiff deserted her and refused to live with her and persisted in such desertion, three instances of cruelty in April of 1963, lack of means of support or ability to pay attorney fees, the joint ownership of the property \u201cacquired through the joint efforts\u201d of the parties, her ownership of a house and furniture at 222 North 2nd Street acquired by her prior to her marriage, and that plaintiff had since their separation sold livestock and crops jointly owned by the parties and refused to account for her half. She prayed that she be awarded separate maintenance and \u201ca reasonable amount for temporary alimony and a permanent amount of alimony; that she he awarded attorney fees; that she he awarded possession and title to 222 North 2nd Street, Dnpo, Illinois, and furniture located at 222 North 2nd Street, Dupo, Illinois; that she he awarded equitable share in the jointly owned 80 acres; 8 acres and the jointly owned trailer and lot in 600 block Minnie Avenue, Dupo, Illinois, and the-jointly owned house and trailer and lot at 312 North 3rd, Dupo, Illinois; that James Boyd he required to account for the cattle, hogs and crops sold and that he he required to pay Agnes Boyd' one-half of the monies received from the cattle, hogs and crops; that an injunction issue restraining James Boyd from selling cattle, hogs and crops; that Agnes Boyd he granted other and further relief as may he equitable.\u201d\nPlaintiff answered the counterclaim denying the material allegations, admitted the ownership of the property in joint tenancy, denied that it was acquired by the joint efforts of the parties, denied defendant\u2019s ownership of the house and furniture at 222 North 2nd Street, and denied that defendant was entitled to any relief on her counterclaim.\nThe parties entered into the following stipulation:\n\u201cBy stipulation it is agreed that James O. Boyd shall put in his evidence as to the question of deserting and following that Agnes Boyd will introduce such evidence as necessary for separate maintenance at which time the question of property settlement and related matters shall he determined and all such latter questions shall he reserved until after evidence of desertion and separate maintenance have been introduced and that all testimony with respect to the divorce, separate maintenance and income can stand as to all issues in the plaintiff\u2019s case and in the counter-complaint for separate maintenance.\u201d\nThe trial court found that the parties placed before the court the issue of equitable division and adjustment of their property rights, that the equities were with defendant who had proved her counterclaim and that plaintiff had failed to prove the allegations of his complaint for divorce. The decree dismissed the divorce complaint, awarded defendant separate maintenance and ordered plaintiff to pay $200 per month for benefit of defendant, awarded defendant all the real estate except the 80-acre farm and all personal property not awarded to plaintiff. The decree ordered plaintiff to pay all back taxes on the real estate at 222 North 2nd Street and any other back taxes, to pay all outstanding indebtedness of the parties incurred prior to May 4, 1964, except the indebtedness on a 1964 Ford and indebtedness on the 8-acre tract; plaintiff having prior to trial, conveyed his interest in the 8-acre tract to the daughter of the parties. Plaintiff was awarded the 80-acre farm, a 1955 Chevrolet, a 1955 pick-up truck, all farm equipment, livestock and poultry on the 80-acre farm, and items of furniture on that farm except those owned by defendant at the time of this marriage, and other items of furniture which had been previously regarded as defendant\u2019s, and provided that both the real and personal property awarded plaintiff should be subject to a lien for the payment of back taxes and indebtedness to be paid by him. The decree allowed defendant 15 days to recover her furniture from the 80-acre farm, and enjoined each of the parties from going upon the other\u2019s property, that plaintiff execute the necessary deeds and documents, and that each party pay his own costs and attorney fees.\nThe evidence showed that the parties had married in 1941, had one child who was married and not dependent upon them, and had until September of 1961 resided on the 80-acre farm. Plaintiff was a locomotive engineer and for the past two years had earnings from his employment in excess of $10,000 per year. In September of 1961 the parties bought a restaurant in Cahokia which defendant operated. Plaintiff helped in the restaurant when not at work on the railroad, until October 1962. There was a conflict of evidence as to whether he wanted her to operate the restaurant, or whether she bought it to get away from the farm; the daughter testified that from September 1961 to October 1962 the parties lived together in Dupo and at the farm, and that after October 1962, defendant continued to go to the farm, 25 miles away, and care for the livestock when plaintiff was gone. Defendant\u2019s testimony of cruelty and plaintiff\u2019s threats to kill her, denied by plaintiff, were supported by evidence other than her own. The evidence is conclusive that since October 20, 1962, the parties had not lived a normal married life, and that defendant tried to return to the plaintiff but was rejected; he testified, \u201cI would not have taken her back because I am getting out of it.\u201d There was no reconciliation of the parties. There was evidence of a severe illness of plaintiff from which he had recovered, and there was evidence that defendant\u2019s condition of health was such that she was unable to continue in the restaurant business.\nPlaintiff\u2019s principal contentions are that the court erred in dismissing plaintiff\u2019s complaint for divorce, in awarding defendant separate maintenance, and that the trial court was without jurisdiction to adjudicate the property rights of the parties.\nPlaintiff cites Deenis v. Deenis, 65 Ill 167, in support of his contention that defendant\u2019s right to separate maintenance ceased on resumption of cohabitation or other condonation of the offense giving rise to the allowance. In th\u00e1t case the wife continued to live with her husband for four years after full knowledge of the fact giving rise to separate maintenance. In the instant case, the evidence bears out defendant\u2019s contention that she tried to resume cohabitation but plaintiff' always rejected her attempts at reconciliation. Before a defendant\u2019s absence may be made the basis for a divorce on grounds of desertion, it must be clear that it is against the will of plaintiff. Karman v. Karman, 24 Ill App2d 123, 164 NE2d 521. In the case at bar, the plaintiff made no attempt at reconciliation, and the living separate and apart was not against his will. The trial court properly dismissed plaintiff\u2019s divorce action.\nWe now consider the separate maintenance suit filed by defendant. There is conflicting evidence as to who was the deserter and whether such desertion was voluntary, by consent or otherwise. Absence from the domicile with the intention to return is not desertion. Kennedy v. Kennedy, 87 Ill 250. Whatever the reason or cause of the separation, we conclude from the evidence that these parties have been living separate and apart; that since the separation, the defendant has made numerous attempts to live with her husband but he has always rebuffed such attempts. In Coolidge v. Coolidge, 13 Ill App2d 170, 141 NE2d 636, the court stated that regardless of the cause of the original separation of husband and wife, the wife would be entitled to separate maintenance if she made bona fide offers to return to the family home, which were refused by husband. In the instant case, not only did the plaintiff reject the offers but on at least two occasions, the plaintiff committed acts of violence upon the defendant. The plaintiff denies such acts of violence but it has been held that even though the evidence is conflicting, but there is evidence which if believed, warranted the trial court to find that the parties lived separate and apart because of the husband\u2019s extreme and repeated cruelty, such finding will not be disturbed. Everett v. Everett, 25 Ill2d 342, 185 NE2d 201.\nIt was primarily for the trial court to consider and determine the weight and sufficiency of the evidence and credibility of the witnesses. Krueger v. Krueger, 47 Ill App2d 134, 197 NE2d 858. The ruling of the trial court cannot be said to be contrary to the manifest weight of evidence and its findings as to separate maintenance will not be disturbed.\nThe record shows that the rule as to determining alimony or support as set out in Goldstine v. Goldstine, 25 Ill App2d 319, 167 NE2d 30, was followed, and the allowance as set by the trial court was not an abuse of its discretion. Plaintiff was 67 years of age and contends that he will be forced to retire in the immediate future, and will then receive only $190 per month, instead of his earnings in excess of $10,000 per year as a locomotive engineer. Adequate provision is made for modification of decrees in the event of a change of condition affecting the ability to pay support.\nIt is plaintiff\u2019s contention that the trial court was without jurisdiction to adjudicate the property rights of the parties. Both parties to this suit have cited many authorities in support of their contention. Since action for separate maintenance is purely statutory and the statute is silent as to property rights, it became a general rule that courts had no right to adjudicate property rights in a separate maintenance suit. One of the first exceptions to this rule was Glennon v. Glennon, 299 Ill App 13, 19 NE2d 412, in which the court said that under the liberal provisions of the Civil Practice Act, a wife or husband who seeks separate maintenance may have her or his property rights adjudicated in that action. In Petta v. Petta, 321 Ill App 512, 53 NE2d 324, the court impliedly overruled the Glennon case, in a decision concurred in by two of the three judges who decided the Glennon case. There the court said, at page 519, that if the parties had requested or agreed to have their property rights determined, a different question would have been presented. In an annotation which gives special attention to the \u201cRule in Illinois,\u201d 74 ALR2d 318, sec 5 at p 326, it is stated:\n\u201cThere is nothing in the decision of the Illinois Supreme Court in separate maintenance cases which justifies the holdings of the Appellate Courts that the property rights cannot he determined in an action for separate maintenance, and there is much in the opinions of the Supreme Court which points in the opposite direction.\u201d\nIn the instant case, the plaintiff filed suit for divorce and prayed that property rights be determined. The defendant in her counterclaim for separate maintenance set forth the property owned by the parties and prayed that an equitable award he made of said property. The plaintiff, neither by motion nor in his answer to the counterclaim, raised the question of the court\u2019s jurisdiction to adjudicate property rights in the event separate maintenance was awarded.\nIt has been held that a wife should sue at law for her property and join that action at law by a separate count in the same suit. Boker v. Boker, 17 Ill App2d 260, 149 NE2d 774. This would appear to be the proper way to adjudicate property rights in a separate maintenance suit where the question of such rights had not been put in issue by the pleadings. \u25a0\nIn Ribergaard v. Ribergaard, 349 Ill App 99, 110 NE2d 89, the complaint was for separate maintenance, and alleged that the parties were the owners in joint tenancy of certain real estate and that the wife claimed an interest therein. Plaintiff prayed for support, and that the right and claims of the parties to the property he adjudicated. The defendant\u2019s answer admitted that the parties appeared as joint tenants of record of the real estate described hut that none of plaintiff\u2019s funds went into the purchase, upkeep or improvement thereof, that it was purchased by defendant prior to the marriage of the parties, and made claim to all the personalty. The reviewing court said, at page 105 of the opinion:\n\u201cIt is insisted by the appellant that the court erred in adjudicating the rights of the parties, as he had no jurisdiction to do so in a separate maintenance suit. He cites two Appellate Court cases that we think correctly state the law that ordinarily this cannot be done, but under the pleadings of this case an entirely different question arises. The plaintiff asks for an adjudication of the rights, and the defendant by his answer also asks for an adjudication of the rights of the parties and this would give the court jurisdiction then to adjudicate and adjust the rights of the property between them. However, the court did not adjust the rights of the parties so far as the real estate was concerned. No doubt it is the usual rule that in a separate maintenance suit that property rights should not be adjusted as between the parties. Rasmussen v. Rasmussen, 334 Ill App 308; Bennett v. Bennett, 344 Ill App 221; Hopper v. Hopper, 314 Ill App 572. The first case that has been called to our attention that property rights could be adjusted in separate maintenance suits was Decker v. Decker, 279 Ill 300, but in that case the plaintiff asks for an adjudication of the property rights, and the defendant recognized it as being the right by introducing evidence to dispute her rights to any of the property. In Olmsted v. Olmsted, 332 Ill App 454, the court commented upon the Decker case and therein we find the following: \u2018In the Decker case the plaintiff in her bill for separate maintenance asked for a settlement of the property rights of the parties and for an accounting between them. The defendant in his answer not only did not question the right or power of the court to decree a settlement but he apparently was satisfied to have his rights determined in that proceeding, and during the trial both parties offered evidence in support of their respective claims.\u2019 In the present case the defendant not only introduced evidence in regard to the rights of the parties to the property, but ashed for it in his answer. It is our conclusion that the court properly adjudicated the rights of the parties, as set forth in the decree.\u201d\nSome Illinois cases have held that the court may, in an action for separate maintenance, determine property rights which have arisen through the payment of money or other contribution to the accumulation of the property, as distinguished from the property rights which have arisen solely because of the marriage. Grossman v. Grossman, 304 Ill App 507, 26 NE2d 678; Grossman v. Grossman, 312 Ill App 655, 38 NE2d 778; Hopper v. Hopper, 314 Ill App 572, 41 NE2d 786; Pick v. Pick, 16 Ill App2d 150, 147 NE2d 424. In the present case all the property has been accumulated since the marriage with the exception of the property which defendant had inherited prior to the marriage, located at 222 North 2nd Street. The decree has the effect of destroying the inchoate dower interest of plaintiff in that property, since it was not held in joint tenancy. There appears to be no justification to treat it differently than property accumulated by the joint efforts of the parties, particularly when the court properly found the equities to be with the defendant.\nThe plaintiff submitted the issue of determination of property rights to the court in his divorce action, joined issue with defendant on the issue of property rights, and he should not how be heard to complain, that in getting a determination of property rights, the court had no power to adjudicate that issue against his contentions on it. We therefore conclude that the trial court properly determined the property rights of the parties. We cannot say that the settlement was inequitable and affirm the judgment of the circuit court of Monroe County.\nJudgment affirmed.\nMORAN and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "EBEESPACHEE, P. J." } ], "attorneys": [ "John E. Sprague, of Belleville, for appellant.", "Floyd E. Crowder, of Columbia, for appellee." ], "corrections": "", "head_matter": "James O. Boyd, Plaintiff, v. Agnes Boyd, Defendant.\nGen. No. 64-73.\nFifth. District.\nMay 4, 1965.\nJohn E. Sprague, of Belleville, for appellant.\nFloyd E. Crowder, of Columbia, for appellee." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 22 }