In re Marriage of Escatel

JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioner, Jose M. Escatel, appeals portions of the judgment dissolving his marriage to respondent, Maria I. Escatel.

Jose raises three issues on appeal: (1) whether the trial court properly entered the judgment dissolving the marriage; (2) whether the trial court abused its discretion in classifying and dividing the marital property; and (3) whether the trial court’s order granting Maria custody of the minor children was against the manifest weight of the evidence. For reasons which follow, we reverse and remand.

Jose and Maria Escatel were married in 1975. Three minor children were born of the marriage. On January 23, 1990, Maria filed a petition for dissolution of marriage, alleging mental cruelty. On February 13, 1990, Jose counterpetitioned for dissolution of marriage, also alleging mental cruelty. Jose denied the allegations contained in Maria’s petition. A hearing on temporary custody was held on April 9, 1990. The trial court awarded Maria temporary custody of the minor children. The issue of child support was reserved by the trial court.

On December 4, 1990, a contested trial was held on the grounds for dissolution of marriage. Both parties presented conflicting testimony. Maria testified that Jose repeatedly was drunk and threatened to hurt her. Jose testified that Maria went out regularly during the evening and returned early in the morning after drinking. Jose alleged that Maria frequently engaged in extramarital relationships and publicly bragged about these relationships. Each party had numerous witnesses corroborate his or her testimony.

The trial court found Maria and Jose had each established separate grounds for dissolution of marriage and that both were entitled to a divorce. The trial court made the following findings in the judgment for dissolution of marriage:

“7. Without cause or provocation by the Petitioner, the Respondent has been guilty of extreme and repeated mental cruelty towards the Petitioner.

8. Without cause or provocation by the Respondent, the Petitioner has been guilty of extreme and repeated mental cruelty towards the Respondent.”

Jose contends the trial court erred in finding both parties guilty of extreme and repeated mental cruelty without cause or provocation by the other. We agree.

Our supreme court has previously addressed this very issue in the case of In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 440 N.E.2d 840. In Eltrevoog, the trial court made the following findings:

“5. That without cause or provocation by the Petitioner, the Respondent has been guilty of extreme and repeated mental cruelty toward the Petitioner as charged in her Petition for Separate Maintenance and the Petitioner has proved the material allegations of her Petition for Separate Maintenance.

6. That without cause or provocation by the Respondent, the Petitioner has been guilty of extreme and repeated mental cruelty toward the Respondent as charged in his Counter-Petition for Dissolution of Marriage and the Respondent has proven the material allegations of his Counter-Petition for Dissolution of Marriage by substantial, competent and relevant evidence, and that a Judgment for Dissolution of Marriage should be entered herein.” Eltrevoog, 92 Ill. 2d at 69-70, 440 N.E.2d at 842.

The supreme court in Eltrevoog held “[t]hose separate findings by the trial court are totally inconsistent and wholly irreconcilable.” (Emphasis added.) (Eltrevoog, 92 Ill. 2d at 70, 440 N.E.2d at 842.) The supreme court also stated:

“Had the trial court judge found solely in favor of either spouse’s petition, we could not say that it would be against the manifest weight of the evidence. But the trial court’s findings that Alice Eltrevoog was without fault and Ebert was guilty of extreme and repeated mental cruelty towards her, while simultaneously finding that Ebert Eltrevoog was without fault and Alice was guilty of extreme and repeated mental cruelty towards him, simply contradict one another. Such findings cannot stand together.” (Emphasis added.) Eltrevoog, 92 Ill. 2d at 71, 440 N.E.2d at 842-43.

We find no distinction between the trial court’s findings in this appeal and the trial court’s findings in Eltrevoog. In both appeals, the trial court’s findings are inconsistent.

While Eltrevoog dealt with a petition for separate maintenance and a counterpetition for dissolution of marriage, and this appeal deals with a petition and counterpetition for dissolution of marriage, we find no actual distinction between the two cases. The court in Eltrevoog noted that the same statutory grounds were required to be proven for either petition. (Eltrevoog, 92 Ill. 2d at 70, 440 N.E.2d at 842.) Likewise, we find the same situation in this appeal. Accordingly, we find the trial court’s inconsistent and contradictory findings are against the manifest weight of the evidence and must be reversed.

In summary, we vacate the judgment for dissolution of marriage and remand for a new trial. All temporary orders of the trial court entered prior to the now-vacated judgment for dissolution of marriage shall remain in full force and effect pending further proceedings. In light of our findings, we decline, at this point, to address the other issues raised by Jose in this appeal.

The judgment of the circuit court of Bureau County is vacated, and the cause is remanded for further proceedings consistent with the findings expressed in this opinion.

Reversed and remanded.

BARRY, RJ., concurs.