In re Marriage of Dowd - 214 Ill. App. 3d 156, 157 Ill. Dec. 894, 573 N.E.2d 312 (1991)

Rule:

While, generally, well-alleged facts within an affidavit must be taken as true when not contradicted by counteraffidavit, that rule is typically applied, by virtue of Ill. Sup. Ct. R. 191(a) only to affidavits in proceedings under Ill. Code Civ. P., Ill. Comp. Stat. 5/2-1005, 2-619, and 2-301(b). Ill. Rev. Stat. ch. 110, para. 2-1005, 2-619, 2-301 (1987) and does not apply to affidavits filed in conjunction with all other types of civil proceedings. 134 Ill. 2d R. 191(a).

Facts:

The husband and the wife were married in 1970 and had one child, Adam, born in 1971. In November 1985, petitioner wife moved out of the marital home. She returned in May 1986 based on respondent husband’s agreement to seek marital counseling with her. The parties, however, never went to counseling although, according to respondent, the parties had attended many marital counseling sessions in the past. Following her return home in May 1986, petitioner returned to the marital bed for about two weeks. Thereafter, until she moved out again in July 1988, petitioner slept on the couch. Petitioner filed for dissolution of marriage in June 1988. By the time petitioner again moved out of the marital home in July 1988, little conversation occurred between the parties. For the most part, the parties still did take dinner together, but it was done apparently for the sake of their son, and any dinner conversation was usually directed toward the son or about the son. The trial court entered a judgment of dissolution of the parties’ marriage. On appeal, respondent claimed that the proof presented at trial did not establish that he and the wife had been living separate and apart for a period in excess of two years or that the marriage was irretrievably broken down as required by section 401(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act), Ill. Rev. Stat. ch. 40, para. 401(a)(2) (1987). The wife filed a motion to dismiss the husband's appeal, asserting that the appeal was frivolous because the issue presented was moot.

Issue:

Under the circumstances, should the judgment of dissolution of marriage be upheld?

Answer:

Yes.

Conclusion:

The court affirmed the circuit court's judgment of dissolution of marriage based on irreconcilable differences. The court did not find any error by the circuit court in determining that the marriage between the husband and the wife should be dissolved under the no-fault provision of the Act. The court found that irreconcilable differences existed and that an irretrievable breakdown of the marriage occurred long ago. In addition, the court found that the evidence established that the legitimate objects of matrimony had been destroyed over the years, that the husband and the wife were unable to live together as husband and wife, and that there were no prospects of any reconciliation. Thus, the husband and the wife had been living separate and apart for more than two years.