No. 2--00--1411

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

In re MARRIAGE OF	)	Appeal from the Circuit Court

CLAYTON KIRKPATRICK,	)	of Du Page County.

	)

	Petitioner-Appellee,	)

	)	No.	00--D--189

and	) 	No.	00--D--189

	)

BARBARA KIRKPATRICK,	)	Honorable

	)	Rodney W. Equi,

	Respondent-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:

	Respondent, Barbara Kirkpatrick, appeals from a judgment of

dissolution of marriage that dissolved the bonds of matrimony

between respondent and petitioner, Clayton Kirkpatrick.  The

judgment was based on the trial court's finding that respondent was

guilty of extreme and repeated mental cruelty toward petitioner. 

Respondent contends that the trial court erred in making its

finding because (1) her conduct in merely leaving petitioner was

not mental cruelty but at most was desertion for less than one year

which, under the specific provisions of the Illinois Marriage and

Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2000)), does not constitute a proper ground for the dissolution of

a marriage and (2) the trial court's finding of extreme and

repeated mental cruelty was against the manifest weight of the

evidence.  For the reasons that follow, we affirm.

	The parties were married in Illinois on January 8, 2000.  On

June 25, 2000, petitioner filed a petition for the dissolution of

the marriage.  The petition alleged (1) that irreconcilable

differences had caused the irretrievable breakdown of the marriage

and (2) that, without cause or provocation by petitioner,

respondent had been guilty of extreme and repeated mental cruelty

toward petitioner.  On November 13, 2000, at the start of an

evidentiary hearing on the petition, the trial court granted

respondent's motion for judgment on the pleadings with respect to

the part of the petition based on the allegation of irreconcilable

differences.  The hearing then proceeded only on the allegation of

extreme and repeated mental cruelty.  In order to adequately

address respondent's contention that the trial court's finding was

against the manifest weight of the evidence, we set out in some

detail the testimony and other evidence presented at the hearing.

	At the evidentiary hearing, petitioner testified that his date

of birth was January 8, 1915.  Petitioner did not know respondent's

age.  January 8, 2000, the date of the wedding, was a Saturday. 

After the wedding, the parties returned immediately to petitioner's

house in Glen Ellyn.  According to petitioner, on the Wednesday

following the wedding, respondent left his house and went to live

in her own house in Barrington.  When respondent left, she told

petitioner that she needed a rest and that she wanted to take a

vacation.  Respondent took virtually all of her possessions with

her.

	Respondent had been petitioner’s caretaker for about six

months prior to the marriage.  As petitioner's caretaker, respondent lived at petitioner's house and her duties included

shopping, cooking, and cleaning.  Petitioner hired respondent to

live at his house "regularly."  However, during the time that she

was petitioner's caretaker, respondent was frequently absent from

petitioner’s house from Saturday night until Monday morning. 

Petitioner paid respondent $40,000 per year to be his caretaker.

	Petitioner further testified that, prior to the marriage, when

respondent was his caretaker, he gave respondent a charge card. 

Petitioner told respondent that she could use the charge card to

purchase groceries for his household.  After the marriage,

respondent asked petitioner if she could continue to use the charge

card.  Petitioner told respondent, "yes, but don't abuse it." 

Petitioner had no knowledge as to whether respondent used the

charge card between the time of the wedding on Saturday and the

time respondent left his house the following Wednesday.  Petitioner

believed that after respondent left she used the charge card to

purchase a new furnace, new air conditioning, and a new hot water

heater for her home in Barrington.  The charges for these items

totaled more than $7,000.  Petitioner had no interest in

respondent's home in Barrington.  Petitioner subsequently canceled

respondent's credit card.

	Petitioner further testified that after respondent moved out

of his house she never came back.  After respondent left,

petitioner attempted to telephone respondent at her home in

Barrington but got no response from respondent for several weeks. 

Petitioner first attempted to call respondent shortly after she

left.  Over the next several weeks, petitioner made "four or five" unsuccessful attempts to call respondent.  During this period,

petitioner did not receive any calls, letters, or notes from

respondent.

	Petitioner further testified that before respondent left she

offered no explanation as to why she was leaving other than that

she needed a vacation.  In response to petitioner's queries as to

how long respondent was planning to be gone, respondent stated that

"she didn't know."  When respondent left petitioner's home, she

took her keys to petitioner's house and a garage door opener with

her.  About a week after respondent left, a neighbor of petitioner

found the keys and the garage door opener in the neighbor's

mailbox.  There was no note with these items and petitioner did not

receive any communication from respondent regarding the keys and

the garage door opener.

	Petitioner further testified that before respondent left she

did not complain to him about anything that he had done. 

Petitioner could not recall any controversies between him and

respondent that occurred between the time that they were married

and the time that respondent left.  Petitioner acknowledged that

respondent did not like his adult children from a prior marriage,

that respondent did not want to have anything to do with his

children, and that respondent did not want his children to come to

petitioner's house.

	Petitioner further testified that at the time of his marriage

to respondent he had medical problems.  Petitioner's medical

problems included trouble with his spine and legs, heart problems,

and problems related to a prior series of strokes.  Petitioner was under the care of physicians for these problems.  Because of these

medical problems, petitioner's physicians had recommended that he

have a full-time caretaker.  A full-time caretaker was necessary

because petitioner's physicians had advised him that if he had

another stroke it could be fatal unless he received immediate

attention.  Petitioner had discussed this need for full-time care

with respondent.  It was petitioner's expectation that if he

married respondent she would be with him 24 hours a day. 

Petitioner believed that respondent understood this expectation.

	Petitioner further testified that when respondent left she did

not make any arrangements to have someone else take care of him. 

Immediately after respondent left, one or the other of petitioner's

sons came to petitioner’s home from time to time to check on

petitioner.  However, petitioner was without full-time care. 

Petitioner subsequently hired another full-time caretaker.

	Petitioner further testified that for years prior to his

marriage to respondent he had been on various medications.  After

respondent left, petitioner began taking additional medications

that he had not previously taken.  One of these medications was

Zoloft.  Petitioner testified that he was taking Zoloft for

"depression and a few other things, loss of memory, unconscious

fears of things and things like that where I was not cogitating

very well."  Before respondent left, petitioner had not suffered

from such mental difficulties.  Petitioner presented a document

that was described as a document that a pharmacist gave petitioner

when he obtained the Zoloft.  The document was admitted into

evidence.  Petitioner also began taking another medication after respondent left.  This medication, which petitioner could not

recall the name of, was for the relief of tensions.  Petitioner

described his physical condition since respondent left by stating,

"[w]ell, I'm an old man and my health continues to erode and I

think probably I'm less capable of living well than I was at that

time."

	Petitioner further testified that he never received an

explanation from respondent as to why she left his home on the

Wednesday following their wedding.  After respondent left, petitioner first talked to respondent in a telephone conversation

with her about three or four weeks later.  Petitioner and

respondent subsequently had several additional telephone

conversations.  During one of these conversations, petitioner asked

respondent if she was coming back.  Respondent stated that she

wanted to come back but did not know when that would be.  During

one of these phone calls, respondent asked petitioner about the

possibility of repairing the marriage.  Petitioner testified that

he ducked the question and respondent then hung up.  In subsequent

calls and letters, respondent stated that she wanted to return to

petitioner's home.  However, respondent never returned.  Petitioner

testified that it was his desire to have his marriage dissolved.

	On cross-examination, petitioner acknowledged that during the

entire time that he knew respondent, both before and after the

marriage,  respondent never acted toward him in anything other than

a loving, caring manner.  After respondent left, petitioner never

told respondent that he wanted her to come back with him. 

Petitioner explained that after respondent left he began taking Zoloft for the troubles that he was having with his brain, which

"wasn't functioning very well."  Petitioner considered respondent's

leaving to be a factor in his brain not functioning very well

because he was upset by her leaving and her refusal to talk to him

for several weeks.  Petitioner testified that he married respondent

because he thought it would be a good marriage and because he

"figured if she was married she would stay with [him], whereas

before she would spend a lot of time in Barrington."  Petitioner’s

principal concern after respondent left was that respondent was no

longer in his house to take care of him.  Petitioner estimated his

net worth to be about $12 million.

	  Petitioner acknowledged that he signed an answer to a bill

of particulars that respondent had filed.  At respondent's request,

the trial court took judicial notice of one of petitioner’s answers

to the bill of particulars.  (We conclude that the trial court

viewed the answer as a judicial admission.)  That answer stated,

"petitioner takes several prescription medications for various

physical ailments; [h]owever, none are directly related to the

emotional tension suffered as a result of the petitioner's failed

marriage."

	On examination by petitioner's attorney, respondent testified

that her date of birth was February 3, 1939.  After respondent and

petitioner were married, respondent initially stayed with

petitioner in his house.  However, respondent was currently

residing in her own house in Barrington.  According to respondent,

she left petitioner's house on the Thursday following the wedding. 

Respondent testified that she tried to come back the following Sunday.  On that Sunday, respondent went to petitioner's house. 

However, when respondent arrived at petitioner's house she did not

go in because, based on the cars parked in the driveway, respondent

believed that all of petitioner's children were in the house. 

Respondent walked up to the front door but decided not to go in

because "it would just be nothing but yelling and screaming.  I

didn't want any part of it."  Respondent has not gone back to

petitioner's house since that Sunday.  Respondent acknowledged that

she dropped her keys to petitioner's house and her garage door

opener in the mail box of one of petitioner's neighbors.

	After leaving petitioner, respondent went to stay at her house

in Barrington.  Respondent subsequently used the credit card that

she had received from petitioner to purchase a furnace and air

conditioning for her house in Barrington.  Respondent used the

credit card because the furnace went out and respondent did not

have any other money.  Respondent testified that her purchase of

the furnace and the air conditioning was a package deal.

	Respondent denied any knowledge of petitioner's attempts to

call her after she left him.  Respondent acknowledged that she had

caller ID in her home but testified that it did not always work. 

After respondent's furnace went out, respondent lived with her

daughter for a while.  Respondent testified that she tried to call

petitioner about once a week after she left him but got no answer.

	On examination by her own attorney, respondent explained why

she left the keys and the garage door opener in the mailbox of one

of petitioner's neighbors as follows:

		"Because his kids were cruel and mean to me starting the

very next morning after we got married, calling, making

accusations, demands.  They wanted a lie detector test.

		I mean they just made life so miserable and unbearable

that I just couldn't handle it, and that's not -- I thought

Curt would at least stand up for me, but he took their sides

in everything, and they were calling me a thief over a set,

dumb set of dishes that couldn't even have been worth a

hundred dollars.

		And then the pressure got so bad on me that I just left,

and I thought it would settle down if I left and he could have

a talk with them and get everything under some kind of

control.

		He was running to see his attorney, he was running -- I

wasn't allowed to answer the telephone.  He wanted me just to

sit inside the house, not go anyplace.

		So I felt like I was just forced out of there.  And I put

the keys in the mailbox.  I was going to come back and all his

kids were there and I thought, oh no, it's just more problems

than its worth."

	On additional direct examination by her attorney, respondent

testified that when she left petitioner she did not plan on it

being a permanent move.  Respondent  still wanted to come back to

petitioner and hoped that it could be worked out.  Respondent

introduced a letter into evidence that she asked her attorney to

write to petitioner's attorney about a week after she left petitioner.  In the letter, respondent requested a reconciliation

meeting.

	In rebuttal testimony, petitioner testified that his children

were not against his marriage to respondent.  Petitioner had talked

to all of his children and they had accepted the marriage. 

Petitioner denied any knowledge of his children being angry with

respondent the morning after the wedding or being angry with or

harassing respondent at any other time after the wedding.

	On cross-examination, petitioner acknowledged that he was not

always present in every room of his house with his children when

they were in the house.  On redirect examination, petitioner

testified that respondent never indicated to him that his children

were harassing her.  Respondent told petitioner only that she did

not like his children.

	The trial court found that petitioner had proved by good and

sufficient evidence the allegation in the petition that respondent

was guilty of extreme and repeated mental cruelty.  In making its

finding, the trial court commented:

		"The essence of this case is, in fact, on grounds.  The

petitioner has alleged that the respondent has been guilty of

extreme and repeated mental cruelty without any cause or

provocation on his part.

		The essence of mental cruelty is the effect upon the

petitioner and its effect on the mental and physical well-

being of the party who is allegedly exposed to mental cruelty.

		In this case given Mr. Kirkpatrick's physical condition

and his frailties and Mrs. Kirkpatrick's knowledge of those infirmities, knowledge of his need for constant and continuing

care, it is the Court's finding that leaving with no word as

to when she will return, how he is to care for himself,

[without] making any alternative arrangements for his care and

making no arrangements for his needs constitutes mental

cruelty.  The fact that it continued constitutes repeated

mental cruelty.

		The Court is certainly able to infer that the effect on

anyone in the condition of Mr. Kirkpatrick would be

debilitating and would have a deleterious effect on him."

	The trial court subsequently entered a judgment dissolving the

parties' marriage.  Respondent filed a timely notice of appeal.

	On appeal, respondent contends that she is entitled to the

reversal of the trial court's finding that she was guilty of

extreme and repeated  mental cruelty and to the vacation of the

judgment of dissolution.  Respondent argues that the trial court

erred in making the finding because (1) her conduct in merely

leaving petitioner was not mental cruelty but at most was desertion

for less than one year which, under the specific provisions of the

Act, could not constitute a proper ground for the dissolution; and

(2) even if merely leaving one's spouse could constitute extreme

and repeated mental cruelty, the trial court's finding that her

conduct in merely leaving petitioner constituted extreme and

repeated mental cruelty was against the manifest weight of the

evidence.

	Respondent's first argument based on the provisions of the Act

consists of several subarguments.  Respondent initially argues that the real basis of the trial court's finding was desertion rather

than extreme and repeated mental cruelty.  In support of this

position, respondent correctly notes that Illinois courts have

defined extreme and repeated mental cruelty as:

		"[a]n unprovoked 'course of abusive and humiliating

treatment, calculated or obviously of the nature to torture,

discommode, or render miserable the life of the opposite

spouse, which conduct actually affects the physical or mental

health of the spouse.' "  Graham v. Graham, 44 Ill. App. 3d 519, 527-28 (1976), quoting Gregory v. Gregory, 24 Ill. App. 3d 436, 440-41 (1974).

	Respondent next asserts that petitioner failed to present any

evidence that she engaged in such conduct toward petitioner.  In

support of this assertion, respondent maintains that the record

shows that she never threatened to harm, never verbally abused, and

never even argued with petitioner.  Respondent also points to

petitioner's own testimony that she always acted in a caring,

loving way toward him.  Based on this record, respondent argues

that it is apparent that her leaving petitioner's home -- i.e., her "desertion" rather than any mental cruelty by her toward

petitioner-- -- must have been the sole basis of the trial court's

ruling.

	Respondent next points to section 401(a)(1) of the Act (750

ILCS 5/401(a)(1) (West 2000)) and argues that certain language in

section 401(a)(1) shows that the trial court's ruling was

erroneous.  The language in section 401(a)(1) that respondent

relies on (the subject language) provides:

		"(a) The court shall enter a judgment of dissolution of

marriage if *** one of the following grounds for dissolution

has been proved:

			(1) That, without cause or provocation by the

petitioner: the respondent *** has wilfully deserted or

absented himself or herself from the petitioner for the

space of one year, *** or has been guilty of extreme and

repeated physical or mental cruelty ***."  750 ILCS

5/401(a)(1) (West 2000).

	Based on the subject language, respondent argues that the

trial court's finding of mental cruelty violates one of the

fundamental rules of statutory construction.  According to respondent, the rule requires that where a general statutory

provision and a specific statutory provision both relate to the

same subject, the specific provision controls and should be applied

(specificity rule).  In respondent's view, in a case such as this

case, a correct application of the specificity rule to the subject

language would result in the language that explicitly and

specifically addresses desertion controlling over the more general

provisions that address mental cruelty.

	Respondent further argues that when the statute is construed

in this way it is clear that the language addressing desertion

should control whether her leaving petitioner, which she

characterizes as a desertion, constituted a sufficient ground for

the dissolution.  Respondent concludes that the trial court erred

because her desertion of petitioner was for less than one year and

section 401(a)(1) provides that desertion is a sufficient ground for dissolution only if it was "for the space of one year" (750

ILCS 5/401(a)(1) (West 2000)).

	Respondent's argument requires us to construe section

401(a)(1) of the Act (750 ILCS 5/401(a)(1) (West 2000)).  Familiar

principles guide us when construing a statute.

	The primary goal of statutory construction is to ascertain and

give effect to the true intent of the legislature.  In re Marriage of Kates, 198 Ill. 2d 156, 163 (2001).  The best evidence of legislative intent is the language in the statute which should be

given its plain and ordinary meaning.  M.A.K. v. Rush-Presbyterian- St. Luke's Medical Center, 198 Ill. 2d 249, 257 (2001).  It is presumed that the legislature did not intend absurdity,

inconvenience, or injustice in enacting the statute.  Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40 (2001). 

	Our supreme court has stated the specificity rule as follows:

where there are two statutory provisions, one of which is general

and designed to apply to cases generally, and the other is

particular and relates to only one subject, the particular

provision prevails.  Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992).  Generally, this specificity rule is

applied when the two provisions are in conflict.  See Brown v. Mason, 132 Ill. App. 3d 439, 441 (1985).  Statutory construction is a question of law and our review therefore is de novo.  Kates, 198 Ill. 2d at 163.

	In this case, we agree with parts of respondent's argument. 

However, we disagree with respondent's overall conclusion.  We

agree with respondent that the language of section 401(a)(1) that specifically addresses desertion plainly applies when desertion by

itself, with nothing more, is the alleged statutory ground for a

dissolution.  However, we disagree with respondent's argument that

the specificity rule therefore applies in this case and requires

her conduct to be evaluated as a desertion under the Act. 

Respondent does not explain how the language she relies on

precludes the use of conduct such as a spouse's leaving a marriage

or a separation as a factor in one of the other grounds for

dissolution.  We can discern nothing in the language that precludes

the use of a leaving or a separation as a factor when one of the

other statutory grounds for dissolution is alleged.

	Here, petitioner did not base his petition for the dissolution

of the marriage on respondent's alleged desertion.  Rather,

petitioner based the petition on respondent's alleged mental

cruelty.  It is true that respondent's leaving petitioner is a

significant factor in the alleged mental cruelty.  However, the

alleged mental cruelty is not based on the leaving, per se.  Instead, the alleged mental cruelty is based on the effects of the

leaving on petitioner.  As we read the Act, the specificity rule

does not preclude such an allegation.

	Respondent's reliance on Voss v. Voss, 55 Ill. App. 3d 286 (1977);, Graham v. Graham, 44 Ill. App. 3d 519 (1976);, and Matthews v. Matthews, 36 Ill. App. 3d 508 (1976), as additional support for her statutory construction argument does not change our conclusion. 

In each of these cases, the trial court granted a request for

dissolution on the ground of mental cruelty and the appellate court

reversed the judgment of dissolution.  Respondent cites these cases as examples of the appellate court holding that desertion for less

than one year does not constitute mental cruelty.  Respondent also

urges us to regard these cases as authority for the proposition

that a desertion of less than one year cannot be considered as a

factor in a determination of mental cruelty.

	We are not persuaded that these cases stand for such a

proposition.  Voss, Graham, and Matthews each involved an alleged desertion or separation in the context of a claim of mental

cruelty.  It is true that in each of these cases the appellate

court reversed a finding of mental cruelty.  However, none of the

reversals was because the appellate court held that the desertion

or separation could not be a factor in determining whether mental

cruelty was proved.  Rather, in each of these cases the appellate

court determined that the effect of the desertion or separation in

that particular case had not been proved.  See Voss, 55 Ill. App. 3d at 289 (record showed complainant encouraged spouse's vacation

until dispute over payment for it); Graham, 44 Ill. App. 3d at 527 (husband did not prove that wife refused to accompany him when he

moved because of his job); Matthews, 36 Ill. App. 3d at 510-11 (wife stayed away for health reasons on doctor's advice).

	For all these reasons, we conclude that respondent's statutory

construction argument does not require the reversal of the trial

court's finding.

	Respondent next argues that the trial court's finding was

against the manifest weight of the evidence.  In support of this

argument, respondent asserts that there was no evidence that her leaving petitioner (1) was cruel to petitioner or (2) had any

effect on petitioner's physical or mental health.

	Along with several other grounds for dissolution, the Act

provides for dissolution upon proof that, "without cause or

provocation by the petitioner," the respondent "has been guilty of

extreme and repeated *** mental cruelty."  750 ILCS 5/401(a)(1)

(West 2000).  We have set forth above the Illinois courts'

definition of mental cruelty.

	The determination of the issue of grounds for the dissolution

of a marriage is a matter for the trial court, and the trial

court's finding will not be disturbed unless it is against the

manifest weight of the evidence.  In re Marriage of Jerome, 255 Ill. App. 3d 374, 390 (1994).  Because a determination of whether

the evidence constitutes sufficient proof of mental cruelty depends

on the circumstances of each case, and because the assessment of

the evidence is best done by the trial court, great deference is

given to a trial court's finding that the evidence was sufficient

to establish the ground of mental cruelty.  Hollo v. Hollo, 131 Ill. App. 3d 119, 122 (1985).

	Whether a respondent's alleged misconduct constituted mental

cruelty is determined primarily by the effect of the alleged

misconduct on the complaining party.  In re Marriage of Semmler, 90 Ill. App. 3d 649, 653 (1980).  Therefore, a trial court's

determination is necessarily highly individualized and depends on

the total factual background of each case.  Semmler, 90 Ill. App. 3d at 653.

	In this case, the trial court's comments show that it

appropriately focused on the effect of respondent's alleged

misconduct on petitioner's mental and physical well-being.  The

record shows that respondent was well aware of petitioner's

frailties and petitioner's need for constant care.  Nonetheless,

respondent left petitioner without indicating whether or when she

would return and without making alternative arrangements for

petitioner's care.  The trial court inferred from the evidence that

respondent's conduct was debilitating to petitioner and had a

deleterious effect on him.  The trial court therefore concluded

that this conduct constituted mental cruelty and that its

continuation constituted repeated mental cruelty.

	In view of the entire factual background of this case, we

cannot say that the trial court's determination that respondent's

conduct constituted extreme and repeated mental cruelty was against

the manifest weight of the evidence.

	The judgment of the circuit court of Du Page County is

affirmed.

	Affirmed.

	McLAREN and BYRNE, JJ., concur.