Find Legal Information

4 August 2000

No. 2--99--1159

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Julita and Gregorio married in 1966 and had two childrentogether. According to Gregorio, he had sexual relationships with numerous women other than his wife during the course of themarriage. One of these women was Alita, who had been friends withthe Orbetas since the early 1980s. At the time of her relationshipwith Gregorio, which lasted from 1988 through 1996, Alita was alsomarried and had five children. Julita discovered the affair inDecember 1995 when she came home unexpectedly one afternoon andfound Gregorio getting dressed and Alita looking disheveled.

Julita presented testimony from several friends and relativeswho said that, prior to December 1995, Julita and Gregorio appearedto have an affectionate and loving relationship. Julita believedthat she and Gregorio had a happy, loving relationship. Prior toJulita's discovery of Gregorio's affair with Alita, she knew of oneother affair he had.

Alita testified that in June 1988 Gregorio called her and toldher that she was a very attractive woman and that he would like to"eat her." Every time Gregorio saw Alita, he would compliment heron her appearance. Gregorio testified that he and Alita first hadsex one evening when Julita was out of the country. That evening,in 1988, the Orbeta children went to a concert with some of Alita'schildren. Julita had invited Alita's children to spend the nightat her home. Alita brought her children to the Orbetas' house andGregorio drove them to the concert. Gregorio instructed Alita towait at his house while he was gone in case he received any phonecalls. Alita did so, and when Gregorio returned he kissed Alitaand told her he wanted to make love to her. Alita said no, butGregorio persisted and, according to Gregorio, she relented. Alitainvoked the protection of the fifth amendment every time she wasasked if she had sexual intercourse with Gregorio.

Alita testified that the day after the concert Gregorio calledher and told her he wanted to see her. She said no, but he beggedher to see him one more time. Alita agreed, and Gregorio drove toIndiana, where Alita lived, while her husband and children were outof town. A couple of days later Gregorio called again asking Alitato meet him. Alita again said no but then agreed to see him.

During their relationship Alita met Gregorio several times athotels near his home in Oak Brook. Alita often paid for theirhotel rooms. She was also seen at Gregorio's office and at thehospital where he worked. Alita bought Gregorio gifts. It isundisputed that she bought him a sweater. Julita presentedtestimony that Alita bought Gregorio an expensive saxophone, butAlita testified that Gregorio paid for it.

At the close of Julita's case, Alita moved for a directedfinding in her favor. The trial court granted Alita's motion andentered judgment in her favor. This appeal followed.

While both parties accurately state the standard of review intheir briefs to this court, it appears from the record that in thetrial court they advocated, and the trial court applied, thestandard for deciding a motion for a directed verdict in a jurytrial instead of the standard for a motion for a directed findingin a bench trial. When a defendant brings a motion for directedverdict during a jury trial, the court must determine whether theevidence, viewed in the light most favorable to the plaintiff, sooverwhelmingly favors the defendant that no contrary verdict couldever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,501 (1967). That standard does not apply to motions for a directedfinding made during a bench trial and, thus, did not apply toAlita's motion in the instant case.

"In a bench trial, where the trial court is the fact finder,a motion for a 'directed verdict' is governed not by Pedrick but bysection 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110(West 1998))." (Emphasis in original.) Zankle v. Queen AnneLandscaping, 311 Ill. App. 3d 308, 311 (2000). Under section 2-1110, the trial court must "weigh the evidence, considering thecredibility of the witnesses and the weight and quality of theevidence." 735 ILCS 5/2-1110 (West 1998). Therefore, as we statedin Zankle, "the trial court does not view the evidence mostfavorably to the plaintiff but rather (1) determines whether theplaintiff has made out a prima facie case, then (2) weighs theevidence, including that which favors the defendant." Zankle, 311Ill. App. 3d at 311. If, after weighing the evidence, the courtdecides that evidence necessary to plaintiff's prima facie case hasbeen negated, the court should grant the motion for a directedfinding and enter judgment for the defendant. Zankle, 311 Ill.App. 3d at 311. A reviewing court will not reverse a trial court'sdetermination of a motion for a directed finding unless it iscontrary to the manifest weight of the evidence. Zankle, 311 Ill.App. 3d at 311.

Even though the trial court applied the wrong standard whendeciding Alita's motion, it is not necessary to reverse or remandthis cause because Julita was not prejudiced in any way by theerror. The trial court weighed Julita's evidence in a morefavorable light than it would have under the correct standard. Even under the light most favorable to Julita, the trial courtconcluded that she could not prove all of the elements of her causeof action.

A cause of action for alienation of affections consists ofthree elements: (1) love and affection of the alienated spouse forthe plaintiff; (2) actual damages incurred by the plaintiff; and(3) overt acts, conduct, or enticement on the part of the defendantcausing those affections to depart. Coulter v. Renshaw, 94 Ill.App. 3d 93, 95 (1981). After reviewing the evidence, we concludethat the trial court's decision was not against the manifest weightof the evidence.

The trial court found that Julita failed to establish thatAlita instigated the relationship with Gregorio or enticed hisaffections away from Julita. Rather, the court concluded from theevidence that Gregorio was the aggressor and seducer. The courtrelied on Gregorio's prior extramarital affairs, his phone calls toAlita asking to see her, and the arrangements he made to meet withAlita.

Julita contends that Illinois law on this subject is notsufficiently clear and urges us to look to North Carolina law forassistance in making our decision. We decline to do so because therelevant Illinois authority adequately addresses the issue beforeus.

Julita asserts that Illinois authority does not answer thequestions of whether a defendant's conduct must be the only causeof the alienation of a spouse's affections or whether a defendantmay still be liable if he or she is a contributing cause but notthe only cause. In our view, the answer to this question is notrelevant to the issues before us. The important issue on the factsbefore us is Alita's intent, not whether there were multiple causesof Julita and Gregorio's breakup. Absent the requisite intent,Alita cannot be liable.

In Farrier v. Farrier, 46 Ill. App. 2d 471 (1964), the court,using a nautical analogy, framed the issue as follows:

"[W]e must determine whether [the spouse's love and affectionsfor the plaintiff] just drifted away, whether [the spouse]voluntarily floated them away or whether the defendant piratedthem away. The liability of the defendant must rest on thelast of the three alternatives." Farrier, 46 Ill. App. 2d at474.

The court noted further that " 'it is necessary to show that theperson who is charged with wrong was the blamable party, and thatshe by some act or words had wrongfully and willfully sought todraw the affections of appellee's husband from appellee to herself,and had succeeded in doing so.' " Farrier, 46 Ill. App. 2d at 478,quoting Smith v. Gillapp, 123 Ill. App. 121, 124 (1905).

As in Farrier, the record in this case is devoid of "any actor word of the defendant which affirmatively initiated, induced,enticed or purloined the love and affections of [plaintiff'sspouse] from the plaintiff to the defendant." Farrier, 46 Ill.App. 2d at 480. Gregorio initiated phone calls to Alita in whichhe made sexual comments. He initiated their first physicalencounter, called Alita afterward, and begged to see her when sherefused. While Julita presented evidence of and Alita admitted toconduct that was reproachable, none of it established willful andwrongful intent on Alita's part to pirate away Gregorio'saffections. Accordingly, the trial court's finding that Julitafailed to establish one of the requisite elements of an action foralienation of affections was not against the manifest weight of theevidence.

In light of our determination, we need not consider whetherJulita presented sufficient evidence of actual damages.

Julita's final argument that the trial court was predisposedto enter judgment in Alita's favor merits little discussion. Julita relies partially upon an affidavit by her trial attorneythat was not part of the record on appeal, and partially on a fewcomments made by the trial judge that Julita takes out of context. We struck the affidavit by Julita's attorney and therefore do notconsider it. Further, the comments to which Julita refers do noteven remotely suggest that the trial court was predisposed to ruleagainst her.

Accordingly, we affirm the granting of the motion for adirected finding and the entry of judgment in Alita's favor.

Affirmed.

McLAREN and HUTCHINSON, JJ., concur.