{
  "id": 5315493,
  "name": "Betty Mason Odom, Plaintiff-Appellant, v. Herbert R. Odom, Defendant-Appellee",
  "name_abbreviation": "Odom v. Odom",
  "decision_date": "1971-08-20",
  "docket_number": "No. 54735",
  "first_page": "185",
  "last_page": "188",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "388 Ill. 179",
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  "last_updated": "2023-07-14T15:27:55.359601+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Betty Mason Odom, Plaintiff-Appellant, v. Herbert R. Odom, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DRUCKER\ndelivered the opinion of the court:\nThis is an appeal from a decree granting a divorce to defendant. On appeal plaintiff\u2019s main contention is that there was insufficient evidence for the trial court to find that she committed extreme and repeated acts of physical cruelty against defendant.\nPlaintiff originally filed a complaint for divorce; defendant filed a cross-complaint and an amended cross-complaint for divorce and plaintiff filed an amended complaint for separate maintenance.\nThe evidence of plaintiff in the trial for separate maintenance disclosed that the parties were married on November 24, 1962; that a daughter was born in 1967; that in 1966 plaintiff had filed for separate maintenance charging physical violence in February and March 1966; that defendant left the home on January 15, 1969, without cause and that the parties lived separate and apart since then. Defendant was called by plaintiff as an adverse witness under section 60 and testified that he started packing to leave home about the 1st of January, 1969, had applied for an apartment on January 6 and that he told her \u201cit would be best to get a divorce under the circumstances we were living.\u201d When asked what these circumstances were, he replied, \u201cmany acts of violence by my wife or by myself.\u201d He described her as five feet three or four inches tall weighing 120 pounds. He was six feet one and one-half inches tall and weighed 154 pounds. He left the apartment on January 14,1969.\nAt the conclusion of plaintiffs evidence the court found plaintiff had established a prima facie case for separate maintenance. Defendant was granted leave to proceed on his cross-complaint for divorce with the evidence thereunder to stand as his defense to the separate maintenance action.\nDefendant testified that plaintiff committed the following acts of cruelty:\n1. May 1964 \u2014 struck defendant with a decanter \u2014 no bruise or mark.\n2. March 1966 \u2014 pulled a knife \u2014 no injury.\n3. July 1966 \u2014 pulled a gun \u2014 bit the defendant.\n4. March 1968 \u2014 after a heated discussion about bills struck defendants arm with a mirror.\n5. August 1968 \u2014 pointed gun and \u201csomething struck him above left eye.\u201d (This incident is not alleged in defendants cross-complaint.)\n6. November 6, 1968 \u2014 struck defendant\u2019s left wrist with door knob \u2014no medical treatment.\n7. January 14, 1969 \u2014 After a heated discussion about money, struck defendant with a boot on left elbow; had X-ray a day or two thereafter and took off a day and a half from work. (Defendant\u2019s witness, Amanda Norman, testified that about January 27, 1969, defendant was given a heat treatment for a bruise on his arm from a shoe.) Defendant also testified that while he lived in the home until he moved\nout on January 15, 1969, he last slept with his wife in August 1968. (As a witness for plaintiff under section 60 in the separate maintenance action defendant first testified that they cohabited until January 1969; later he stated that there was no sexual relations between him and his wife after March 1968.)\nPlaintiff testified that sexual relations continued until January 7, 1969, and that she never pointed a gun at defendant, never struck her husband with a mirror, door knob or boot. She also denied the other alleged incidents. She further testified that in August 1968 defendant pulled his gun and threatened to kill her; that plaintiffs Exhibit 10 represented a carbon copy of a complaint she signed based on this incident; and that she dropped the charges a few days later. (In the separate maintenance trial defendant first testified that he never owned a gun; on being shown a gun registration form he admitted applying for it on June 26, 1968.)\nThe court granted defendant a divorce on his amended counter-complaint and dismissed plaintiff\u2019s amended complaint for separate maintenance with prejudice.\nIn Levy v. Levy, 388 Ill. 179, 184, the court stated: \u201cOur statute requires proof of extreme and repeated cruelty\u2019 and obviously slight acts of violence\u2019 are not extreme as to a normal person whether husband or wife.\u201d The court then further stated: \u201cIt is true that the physical condition of the parties involved must be taken into account and each case considered upon its own facts.\u201d\nIn McKeon v. McKeon, 4 Ill.App.2d 515, the court held that hitting, scratching and throwing dishes by the wife were not acts constituting extreme and repeated cruelty. See also Hinkleman v. Hinkleman, 88 Ill.App.2d 47.\nIn the instant case plaintiff was five feet three inches tall weighing 120 pounds while defendant was six feet one and one-half inches tall and weighed 154 pounds. He testified that: \u201cI\u2019ve never struck my wife in anger. I am a fighter and know my wife is no competition for me. I was Golden State Boxing Champion for 3 years, National Boxing Champion, Michigan State College, for 2 years, and AAU Boxing Champion for 2 years.\u201d Under all the circumstances of this case we cannot agree with a finding that extreme and repeated cruelty was proven.\nWe therefore find that the court erred in granting defendant a divorce on his cross-complaint and in dismissing the amended complaint for separate maintenance with prejudice.\nThe judge found at the conclusion of plaintiff\u2019s evidence that plaintiff had proved a prima facie case for separate maintenance. Although defendant\u2019s evidence on his cross-complaint was to stand as his defense to the separate maintenance action, we find no evidence therein to rebut plaintiff\u2019s evidence. Defendant testified that he had decided to move out in August 1968, started moving on January 1, 1969, and applied for his own apartment on January 6,1969.\nThe judgment of May 27, 1969, is reversed and the cause remanded with directions to vacate the decree granting the divorce and dismissing the amended complaint for separate maintenance; to enter a decree in favor of plaintiff for separate maintenance incorporating the provisions of the divorce decree relating to child custody and child support and for fmther hearings in regard to the amount, if any, for her maintenance and attorney\u2019s fees.\nReversed and remanded, with directions.\nENGLISH, P. J\u201e and LORENZ, J., concur.\nAccording to defendant\u2019s cross-complaint, this separate maintenance suit was dropped.",
        "type": "majority",
        "author": "Mr. JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Posanski, Krohn & Jacobs, of Chicago, for appellant.",
      "Harry G. Fins, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Betty Mason Odom, Plaintiff-Appellant, v. Herbert R. Odom, Defendant-Appellee.\n(No. 54735;\nFirst District\nAugust 20, 1971.\nPosanski, Krohn & Jacobs, of Chicago, for appellant.\nHarry G. Fins, of Chicago, for appellee."
  },
  "file_name": "0185-01",
  "first_page_order": 205,
  "last_page_order": 208
}