Arndt v. Arndt

• Decision Date: 05 May 1947
• Docket Number: Gen. Nos. 43796,43831.
• Citation: 331 Ill.App. 85,72 N.E.2d 718
• Parties: ARNDT v. ARNDT.
• Court: United States Appellate Court of Illinois

331 Ill.App. 85

72 N.E.2d 718

ARNDT

v.ARNDT.

Gen. Nos. 43796, 43831.

Appellate Court of Illinois, First District, First Division.

April 21, 1947.

Rehearing Denied May 5, 1947.

Appeal from Superior Court, Cook County; John J. Lupe, Judge.

Action for annulment of marriage by Clarence John Arndt against Margaret Haas Arndt, wherein the defendant filed a counterclaim for separate maintenance, or, in the alternative, for divorce. From an adverse decree, the plaintiff appeals, and, from an order directing payment by plaintiff to defendant for attorney's fees and expense money in defending the appeal from the decree, the plaintiff appeals.

Appeal from decree dismissed and order affirmed.Aiken, McCurry, Bennett & Cleary and Eugene J. Garber, all of Chicago (Charles R. Aiken, of Chicago, of counsel), for appellant.

Arthur & Edward Goldblatt, of Chicago, for appellee.

NIEMEYER, Justice.

Plaintiff appeals from a second decree dismissing his complaint for annulment of his marriage to defendant and from a subsequent order directing the payment of $150 for attorneys' fees and expense money in defending the first appeal. These appeals have been consolidated.

The complaint charged that the marriage had been induced by duress and the fraudulent representation that plaintiff was the father of the child with which defendant was pregnant. Defendant answered, denying the charges of duress and fraud, and affirming that plaintiff was the father of her child. She also filed a counterclaim for separate maintenance, or, in the alternative for divorce on the ground that from and after the marriage ceremony plaintiff had without cause refused to live and cohabit with her. After a trial the court entered a decree, January 9, 1946, finding that plaintiff was the father of defendant's child and dismissing the complaint and counterclaim for want of equity. No appeal was taken from that decree. Within 30 days plaintiff filed a petition which, as amended, recites that the finding in the decree as to the paternity of the child was based on testimony on behalf of defendant that plaintiff was in the City of Chicago in the period from June 13 to and including June 20, 1943. That during all that time plaintiff was in the State of Mississippi as a member of the Army of the United States, and that certain witnesses named in the petition would so testify; that, as the court on the first hearing of evidence had ruled that the paternity of the child was immaterial, no finding on that question should have been made. No other objection to the decree was raised. The petition ended with the following prayer: ‘Wherefore, your petitioner prays that the decree heretofore rendered and entered in this cause, on January 9, 1946, may be vacated and set aside in order that the newly discovered evidence hereinbefore set forth may be introduced in this cause; * * * or, in the alternative, that a new decree may be entered in this cause expressly refraining from adjudicating any question as to the paternity of the defendant's child.’

April 3, 1946, the court vacated the first decree and entered a second decree, identical with the first except that the paragraph containing the finding that plaintiff was the father of defendant's child was eliminated, and in lieu thereof there was inserted in the second decree a paragraph stating the contention of the respective parties as to the paternity of the child, and concluding, ‘* * * this court does not make any finding with respect to the paternity of said child.’ This decree gave the plaintiff exactly the relief and all the relief he asked in the alternative prayer of his petition. Under such circumstances he cannot appeal from it, and his appeal must be dismissed. McDonald v. Shimeall, 282 Ill. 42, 118 N.E. 399;Henry v. Metz, 382 Ill. 297, 46 N.E.2d 945;City of Chicago v. Sayer, 330 Ill.App. 181, 70 N.E.2d 870;McNulty v. Hotel Sherman Co., 280 Ill.App. 325.

The second appeal attacks the entry of an order by the trial court, after the appeal from the decree dismissing the complaint had been perfected, requiring the plaintiff to provide defendant with money to meet the expenses of the appeal. The only Illinois case specifically dealing with this question is Smith v. Saum, 324 Ill.App. 299, 58 N.E.2d 248, where, as further examination of the question shows, this court reached the right conclusion but erred in the reasons assigned.

We have no statute on annulment of marriages and no statute relating to the allowance of support money, solicitors' fees and expense money in marital proceedings, except in respect to divorce and separate maintenance. Whatever jurisdiction the court had to enter the order before us must be found in the general powers of the court. The answer to the question being considered is found in the early practice in Illinois in divorce and separate maintenance suits. For in each proceeding the reasons supporting the allowance and the power of the court to direct it are, in the absence of a statute, the same. Within the statutory jurisdiction of divorce, courts of equity exercise their general powers. Smith v. Smith, 334 Ill. 370, 166 N.E. 85;Smith v. Johnson, 321 Ill. 134, 151 N.E. 550. Prior to 1874 the statute on divorce provided for alimony on the entry of a decree, but was silent as to alimony pendente lite. In Petrie v. People, 40 Ill. 334, a contempt proceeding, defendant insisted that the trial court erred ‘in allowing alimony to enable complainant to employ counsel and otherwise prepare for the prosecution of her suit,’ and questioned the power of the court to make the order ‘upon the ground that the statute regulating proceedings in divorce contains no express authority for the purpose, the statute only, in terms, authorizing the court to allow permanent alimony by the final decree.’ In affirming the trial court the Supreme court said (40 Ill. at page 341): ‘Without citing further authorities, we may safely say, that the general American doctrine is, that the wife may have alimony pendente lite, as well as money to defray the expenses of the suit, even in the absence of statutory provision to that effect, upon the principle that alimony is an incident to the divorce, and that the jurisdiction of the latter necessarily includes the power to enforce such a right, as a legal attendant upon the marital relation, under the circumstances under which the parties litigant are placed. Bishop on Marriages and Divorce, sec. 574. Moreover it will not be questioned that this right existed as a part of the common law jurisdiction, and we have expressly adopted the common law as a part of our jurisprudence. It is true that this jurisdiction was exercised in Great Britain in the ecclesiastical courts, but is none the less, for that reason, a common law jurisdiction, in harmony with our institutions, and essentially necessary to the attainment of justice.’ And (40 Ill. at page 343): ‘We are fully satisfied that the weight of authority as well as reason and justice all unite in support of the rule, that the Court of Chancery in this State, having power to grant divorces, has also the incidental power to allow temporary alimony pendente lite, and therefore, the Superior Court did not exceed its jurisdiction in granting the order complained of and assigned for error.’ To the same effect are Newman v. Newman, 69 Ill. 167;Trotter v. Trotter, 77 Ill. 510;Dow v. Eyster, 79 Ill. 254;Johnson v. Johnson, 20 Ill.App. 495, suit for separate maintenance. That allowances for solicitors' fees and suit money are in the nature of allowances for alimony and governed by the same rules, see Johnson v. Gerald, 216 Ala. 581, 113 So. 447, 59 A.L.R. 348;Allen v. Allen, 180 N.C. 465, 105 S.E. 11;Winslow v. Winslow, 133 Tenn. 663, 182 S.W. 241, Ann.Cas.1917A, 245. The greater weight of authority supports the allowance of temporary alimony, including solicitors' fees and suit money, in suits for annulment of marriages in the absence of statutory authorization. 35 Am.Jur., Marriage, sec. 70, and cases cited. Defendant's right to the allowance was not affected by the dismissal of her counterclaim for separate maintenance. Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857. It may be added that the necessity for such allowance was created subsequent to the decree denying separate maintenance and by action of the plaintiff at a time when under the ruling of the court, the defendant was, and still is, the wife of plaintiff.

Lastly, plaintiff contends that whatever power the trial court had to direct the payment of solicitors' fees and suit money was lost by the perfecting of the appeal, citing Cowdery v. Northern Trust Co., 321 Ill.App. 243, 53 N.E.2d 43 (opinion by the writer of this opinion), and Kohler v. Kohler, 326 Ill.App. 105, 61 N.E.2d 687. Neither of these cases was a divorce, separate maintenance or annulment of marriage proceeding. However, in each case Jenkins v. Jenkins, 91 Ill. 167, was cited. That case involved an order by the trial court for solicitor's fees for the wife's defense of the appeal taken by the husband from a decree of divorce in favor of the wife. In answering the husband's contention that the trial court had no jurisdiction to entertain the motion and order solicitor's fees after the cause had been removed to the Supreme court, that court said: ‘* * * were it not for sec. 15, chap. 40, R.L.1874, page 421, we would have no hesitation in holding that appellant's position was well taken,-that after the appeal was consummated and the cause was removed to this court, the circuit court had no right to require appellant, by decree or otherwise, to pay attorney or solicitor's fees; but the section of the statute referred to in plain and express terms confers the power upon the circuit court, and the law as enacted by the legislature must control.’ If the statement as to what the court would have held in the absence of a statute is not obiter dictum, it is inconsistent with Barnes & Co. v. Chicago Typographical...