In re Marriage of Eltrevoog

Alice J. Eltrevoog and Ebert N. Eltrevoog were married on October 19, 1946, in Ottawa. They lived together as husband and wife from the date of their marriage until August 1, 1960, when Alice moved out. On July 17, 1979, Alice filed a petition for separate maintenance alleging extreme and repeated mental cruelty on the part of Ebert. Ebert responded and filed a counterpetition for dissolution of marriage alleging extreme and repeated mental cruelty on the part of Alice. The circuit court of La Salle County found that, without cause or provocation by Alice, Ebert had been guilty of extreme and repeated mental cruelty toward Alice as charged in her petition for separate maintenance, and that Alice had proved the material allegations of her petition. The trial court also found that without cause or provocation by Ebert, Alice had been guilty of repeated mental cruelty toward Ebert as charged in his counterpetition for dissolution of marriage and that Ebert had proved the material allegations of his counterpetition. The trial court, sua sponte, went on to declare section 402 of the Illinois Marriage and Dissolution of Marriage Act, entitled Legal separation (Ill. Rev. Stat. 1979, ch. 40, par. 402), unconstitutional and of no effect. A judgment for dissolution was entered. An appeal was taken directly to this court pursuant to Rule 302(a) (73 Ill.2d R. 302(a)).