In re Marriage of Hightower - 358 Ill. App. 3d 165, 294 Ill. Dec. 450, 830 N.E.2d 862 (2005)

Rule:

Condonation, in the law of divorce, is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness. Condonation is a question of intent and is to be shown by words and deeds that reflect full, free, and voluntary forgiveness. The burden is on the party raising the affirmative defense of condonation to prove by a preponderance of the evidence that the wronged party intended to forgive the matrimonial offenses of his or her spouse. Whether an injured spouse intended to forgive the marital offense is a question of fact, which turns on appraising the credibility of the witnesses and weighing their testimony. Appellate courts will not overturn the trial court's finding on the issue of condonation unless it is against the manifest weight of the evidence. 

Facts:

The circuit court of Lake County entered judgment dissolving the marriage of petitioner, Belinda A. Hightower, and respondent, Larry M. Hightower, on the ground of irreconcilable differences. On appeal, petitioner challenges several aspects of the judgment, including grounds, child support, and dissipation. The wife argued that the trial court erred in failing to grant her a divorce on the basis of adultery. It was undisputed that the husband had been unfaithful. 

Issue:

Did the trial court properly determine that the wife had condoned the infidelity?

Answer:

Yes

Conclusion:

The appellate court found that the trial court properly determined that the wife had condoned the infidelity. Condonation was the forgiveness of an antecedent matrimonial offense on condition that it not be repeated. The wife admitted that she learned of the husband's infidelity between 1995 and 1997 while the parties were undergoing counseling. The husband testified that the wife forgave him for his conduct. The parties continued to live together for several years following the husband's admission, and there was no evidence that this living arrangement was continued out of necessity. Moreover, the husband testified that he and the wife shared the same room, shared domestic duties, and continued sexual relations. However, the appellate court held that the trial court erred in making a deviation from the child support guidelines, 750 Ill. Comp. Stat. 5/505, as the trial court failed to hear evidence on the relevant factors for such a deviation.