Adler v. Adler

• Decision Date: 10 April 1940
• Docket Number: No. 25335.,25335.
• Citation: 373 Ill. 361,26 N.E.2d 504
• Parties: ADLER v. ADLER et al.
• Court: Illinois Supreme Court

373 Ill. 361

26 N.E.2d 504

ADLER

v.ADLER et al.

No. 25335.

Supreme Court of Illinois.

Feb. 21, 1940.

Rehearing Denied April 10, 1940.

Petition by Sidney Adler against Sara Adler and others for modification of a divorce decree. From a decree for petitioners, respondents appeal.

Affirmed.Appeal from Circuit Court, Cook County; Philip J. Finnegan, judge.

Pam, Hurd & Reichmann and Taylor, Miller, Busch & Boyden, all of Chicago (Alexander F. Reichmann, Francis X. Busch, and Lester G. Britton, all of Chicago, of counsel), for appellants.

Poppenhusen, Johnston, Thompson & Raymond, of Chicago (Floyd E. Thompson and Samuel W. Block, both of Chicago, of counsel), for appellee.

MURPHY, Justice.

Sidney Adler, appellee, hereafter referred to as the petitioner, and Sara Adler, by remarriage now Sara Cowley Brown, one of the appellants, hereafter referred to as the respondent, were married in 1895 and lived together until 1920. In November, 1922, petitioner began an action for divorce and charged respondent with desertion. She answered, denying the charge, but at the hearing offered no evidence. On November 29, 1922, a decree of divorce was entered and the question of alimony was reserved for future consideration. The December 2, following, another decree was entered which stated provision had been made for quarterly payments of $1,150 to respondent during her life and ordered petitioner to make such payments. In May, 1936, petitioner applied, under section 18 of the Divorce Act (Ill.Rev.Stat.1939, chap. 40, § 19,) to the court for a modification of the decree, alleging as grounds therefor, respondent's remarriage and a change in his financial condition and earning capacity. Respondent answered, admitted her remarriage but contended that because of the various contracts entered into between the parties, her remarriage did not furnish a basis for modification. She alleged the inability of her present husband to support her and denied there was any change in petitioner's financial condition or in his ability to meet the payments.

On December 30, 1920, the parties executed two instruments described as a trust indenture and a trust agreement. By the trust indenture, certain real estate was conveyed by Adler to three trustees to hold in trust during the life of respondent. By the provisions of the two instruments respondent was to receive for life quarterly payments of $1,350. The trustees were given power to manage and rent the real estate, and, after deducting taxes and other charges, pay to respondent the quarterly amounts; the balance was to be paid to petitioner. It is agreed that the contracts were not made in contemplation of divorce and petitioner does not seek any relief from the quarterly payments as therein provided. Reference to these instruments is necessary only because they were referred to in two instruments executed on December 1, 1922, and which are described in this proceeding as the supplemental trust indenture and the supplemental trust agreement. In the latter instruments provision was made for the payment from the income of trust property to respondent for her life, of an additional $1,150 per quarter. In the decree of December 2 petitioner was ordered to pay respondent the amounts stated in the two agreements. The trial court entered a decree approving the master's report and modified the decree of December 2, 1922, by canceling the quarterly payments of $1,150.

The question presented is whether the provision in the supplemental instruments of December 1, 1922, and the decree of December 2 for the quarterly payment of $1,150, was an allowance of alimony and subject to modification under section 18 of the Divorce Act, or was it a final settlement in gross, of all the interest of the parties arising out of the marital relation, and therefore, beyond the power of the court to modify or change. The appeal has been brought direct to this court because the validity of the act of 1933 amending section 18 of the Divorce Act is questioned. Laws of 1933, p. 490, Ill.Rev.Stat.1939, chap. 40, § 19.

The trust created by the trust indenture of December 30, 1920, was to terminate upon the death of the respondent and the trustees were then directed to reconvey the real estate to petitioner or to his heirs or assigns. The trust agreement of the same date stated the two instruments should be construed as one, the same as if the provisions of the trust agreement were set forth in the trust indenture. Respondent agreed that the provisionfor her support and maintenance was adequate and she accepted the same in full of all claims for such support and maintenance, except as otherwise provided. The exception, which gave her the right to make further claim for support and maintenance, was, in the event petitioner should subsequently commence an action for divorce the respondent had the right to set up by answer or cross-bill any defense that then existed, or might thereafter arise, and she also had, ‘the option either to rely upon the provision for her maintenance and support now made, or to demand in such proceeding further or other alimony, solicitor's or attorney's fees, to be determined by the court in such proceedings.’

Sara Adler agreed not to begin any action for separate maintenance or divorce upon any then existing ground or which might thereafter arise; in the event she broke this covenant, she was not entitled to make claim for alimony, solicitor's or attorney's fees, and the provisions made for her in the trust indenture and agreement were to be taken in full of all claim for alimony, solicitor's or attorney's fees. Respondent agreed she held no money demands against petitioner, had no right in the personal property in the residence, had no right or title in any real or personal property owned or held by him, other than as provided by this trust indenture and agreement ‘and such as she may be entitled to have or make after the death of said first party as his widow, devisee or legatee, and whatever claims she may have as beneficiary under any insurance policy or policies on the life of said first party.’ Petitioner agreed if the net income from the property described in the trust indenture was not sufficient to pay respondent $1,350 per quarter as provided, he would pay such deficiency. They agreed that neither instrument required them to live separate and apart.

The supplemental trust indenture of December 1, 1922, related the parties had been divorced by a decree entered November 29, 1922, and refers to the trust indenture of December 30, 1920, by pointing out the provisions therein made to secure the quarterly payment of $1,350 to respondent for her life. It then recites: ‘Whereas, Sidney Adler and Sara Adler have agreed that additional quarterly payments are to be made to said Sara Adler by said trustees in the sum of eleven hundred and fifty dollars ($1150) quarterly, so that said Sara Adler shall be paid the sum of twenty-five hundred dollars ($2500) per quarter in lieu of thirteen hundred and fifty dollars ($1350) as now provided by said trust indenture. * * * Now, therefore, in consideration of the premises and the * * * relinquishment of alimony, dower and all other claims and demands to which said Sara Adler is now or might hereafter become entitled, * * * said Sidney Adler does hereby agree with said Sara Adler and the said trustees, and their respective successors in trust, * * * that the said trustees shall pay to the said Sara Adler * * * the further sum of eleven hundred and fifty dollars ($1150) per quarter,’ and any surplus of the net income was to be paid to petitioner. The quarterly payments of $1,350 and $1,150 were secured by lien on the real estate and were to be considered as ‘a continuing lien upon the corpus of the premises hereinbefore described and the buildings and improvements thereon, as well as on the rents, issues and profits thereof,’ and in the event of default of any of the payments either in the lifetime of petitioner or after his death, respondent was given authority to foreclose the lien by appropriate action in chancery. As a concurrent remedy, respondent could sue at law for any defaulted payment.

It was covenanted that the trust indenture of December 30, 1920, should remain in full force, extend to and secure the additional payments (of $1,150 per quarter) to the same extent ‘as if the said additional payments to be made as aforesaid had been originally mentioned and included in the first trust indenture,’ etc.

The supplemental trust agreement recites the execution of the trust indenture and trust agreement of December 30, 1920, and, in general terms, refers to the quarterly payments to be made respondent and the fact that under those agreements respondent retained, ‘any right, title, claim or interest which she may be entitled to have or make after the death of said Sidney Adler as his widow, devisee of legatee.’ It recited that ‘for the purpose of making full and final provision for the maintenance and support of said Sara Adler and for alimony, dower and right of dower, and all claims and property rights, and rights of every kind and nature of second party against first party a supplemental trust indenture has been entered into of even date herewith amending the trust indenture first above mentioned, so that the same shall cover, extend to and secure additional payments of $1150 quarterly.’ The supplemental trust indenture and the supplemental agreement were to be construed as one instrument, and respondent acknowledged the additional quarterly payments (of $1,150) were ‘in full settlement of all her alimony, dower and right to dower, and all other rights, claims and demands against first party, and particularly in full settlement of all the property rights in any property, real or personal, standing in his name, which still remained in her after the execution of said trust indenture and agreement of December 30, 1920. And second party does hereby...