Arnold v. Arnold

• Decision Date: 12 December 1947
• Docket Number: Gen. No. 43969.
• Citation: 76 N.E.2d 335,332 Ill.App. 586
• Parties: ARNOLD v. ARNOLD.
• Court: United States Appellate Court of Illinois

332 Ill.App. 586

76 N.E.2d 335

ARNOLD

v.ARNOLD.

Gen. No. 43969.

Appellate Court of Illinois, First District, Second Division.

Nov. 13, 1947.

Rehearing Denied Dec. 12, 1947.

Appeal from Circuit Court, Cook County; Elmer J. Schnackenberg, Judge.

Suit for divorce by Sylvia Arnold against Robert M. Arnold. From a decretal order modifying divorce decree entered therein by increasing the award of permanent alimony from $175 per month to $415 per month, plaintiff appeals and defendant assigns cross-errors.

Decretal order affirmed. Ehrlich & Cohn, of Chicago (Aaron H, Cohn, of Chicago, of counsel), for appellant.

Richard H. Devine, of Chicago, for appellee.

SCANLAN, Justice.

On December 20, 1930, Sylvia Arnold filed her complaint for divorce from her husband, Robert M. Arnold, in which she charged him with extreme and repeated cruelty. A decree of divorce was entered February 21, 1931, which found that defendant had been guilty of the charge, and the custody of their child was awarded to plaintiff. The decree provided, inter alia, that defendant pay plaintiff $175 per month as and for her alimony and support, and also pay for the support of the child ‘the sum of $10.00 per week during such time as the child remains with the mother.’ On July 9, 1945, plaintiff filed a petition which sets up the decree and alleges that defendant had failed to comply with its provisions as to alimony and support of the child, that he is in arrears in excess of $12,000, and prays for a rule upon defendant to show cause why he should not be punished for a wilful failure to comply with the decree. Defendant subsequently paid the arrears in full and that matter is not involved in the instant appeal. The petition further alleges that defendant has engaged in business as Arnold Engineering Company and ‘has been in receipt of a tremendous income from his business and other sources; that he is engaged in the completion of large war contracts for the United States Government’; that because defendant was in arrears in the payment of alimony plaintiff was forced to seek employment; that she has lost considerable weight, is run down and nervous, and has been advised by her physician to quit work in order to regain her health; that she is entitled to a very substantial increase in alimony in accordance with the present ability of defendant and the station in life to which she is entitled as his divorced wife; ‘that defendant remarried a second time; that his second wife died; and that he is now again married; that he has a beautiful and extensive estate at Lake Geneva, Wisconsin, where he maintains an elaborate establishment and lives a life of luxury with his present wife whose rights are inferior to those of your petitioner.’ The petition prays for attorneys' fees and for an increase in alimony. The petition was referred to a master, who filed a report and a supplemental report. In the report the master recommended that defendant pay plaintiff the sum of $400 per month for alimony, but after hearing further testimony touching the income of defendant he recommended, in the supplemental report, that the decree be modified by ordering defendant to pay plaintiff $9,000 per year. The matter then came on to be heard before the chancellor and at the conclusion of the hearing the following opinion was rendered:

‘From the findings of the Master and the evidence accompanying said Reports, certain material facts appear, as follows:

‘When the decree of divorce was entered the plaintiff, then twenty-six years of age, was unemployed. At that time defendant was employed as chief engineer for the United Air Cleaners at a salary of seventy-five hundred dollars annually. Commencing three months later, his salary was ten thousand dollars a year for the next six months. Thereafter he was employed elsewhere at an annual salary of twelve thousand dollars. Thereafter he had a retainer with a manufacturing company at one hundred and fifty dollars a month for about two years. Thereafter he was with another company for a year and a half, starting at five thousand dollars per annum and advancing to seventy-five hundred dollars per annum. In July, 1935, he started his own business, the Arnold Engineering Company. He had an idea for permanent magnetism in the radio business which he thereupon developed successfully. His business became self-supporting in 1938 or 1939. By 1940 he had made a million dollars plus what he had taken out of his business.

‘After the filing of plaintiff's petition herein, defendant sold his interest in the Arnold Engineering Company for twenty-five thousand shares of stock in the Allegheny Ludlum Corporation of the value of one million and fifty thousand dollars and he became employed by the Allegheny Ludlum Corporation, at a salary of thirty thousand dollars per year. The current dividend rate on the Allegheny Ludlum Corporation stock will produce during 1946, a dividend payable to the defendant in the sum of forty thousand dollars. Thus the defendant anticipates total income for 1946 of seventy thousand dollars.

‘At the time of the entry of the decree in 1931, plaintiff was not required by law to pay income tax to the United States on alimony received from the defendant. She is now required to pay such tax. The defendant is entitled to deduct alimony payments in computing his income tax.

* * *

‘Pending the hearings on plaintiff's petition, all arrearages were settled and that matter is not now before the Court. All questions in regard to child support have also been settled between the parties and are not now before the Court.

* * *

‘In support of the recommended increase of permanent alimony from one hundred and seventy-five dollars per month to nine thousand dollars per year, plaintiff's counsel make four contentions.

‘(1) A substantial change in either the divorced wife's needs or her husband's income, justifies an increase in permanent alimony. It therefore follows that an increase in the divorced husband's assets and income, entitles the plaintiff to live on a higher scale than heretofore.

‘(2) A change in the United States income tax laws, imposing upon the plaintiff an obligation to pay a tax on alimony received by her, justifies this court in increasing her alimony payments.

‘(3) The diminished purchasing power of the dollar since 1931, justifies the court in increasing her alimony payments.

‘(4) Plaintiff's earning ability has been impaired by ill health and she is fifteen years older than when the decree was entered, * * * which are facts justifying an increase in such payments.

‘In disposing first of the last mentioned point, it should be borne in mind that plaintiff was not employed at the time the decree was entered, and she is under no obligation now to supplement defendant's payments to her by seeking employment. The court considers the full obligation of supporting the plaintiff to still rest upon the defendant.

‘The first point involves a question which has not been directly passed upon by any reviewing court in Illinois, nor, so far as a brief filed by the attorneys herein, reveals, by any court in the United States. The nature of permanent alimony has been discussed in various court decisions and the language used in those cases must serve as a guide to this court in passing now upon the question under consideration. Section 18 of the Divorce Act, Ill.Rev.Stat.1945, c. 40, § 19, provides in part, as follows: [Here follow certain parts of Sec. 18.]

‘* * * However, in this case, plaintiff's first contention is based upon the theory that the amount of alimony to which she is entitled should now be based upon a station in life measured by defendant's present wealth and earning capacity, rather than upon their station in life when the divorce decree was entered in 1931. * * *’

After reviewing certain cases cited by the parties the opinion proceeds:

‘In the case at bar, the plaintiff chose to sue the defendant for divorce, rather than for separate maintenance. If she had procured a separate maintenance decree, the marriage relation would not have been terminated and she would still be the wife of the defendant, as is the plaintiff in the case of Hoover v. Hoover, 307 Ill. App. 590, 30 N.E.2d 940, relied upon by plaintiff here. However, the plaintiff in this case voluntarily applied for a divorce which, when she obtained it, made her no longer the wife of the defendant. She has contributed nothing to his acquisition of wealth since the decree was entered. She cannot logically claim that because she was his wife several years before good fortune came to him, she now has a right to participate therein. By her own choice, she was not his wife when he amassed his present wealth. The station in life to which he had accustomed her was that existing in 1931 and prior thereto. It is that station in life in which he is bound to maintain her now, if he is financially able so to do. She cannot ask this court to compel him to maintain her in a station in life to which the present wealth and income of the defendant would entitle her but for her voluntary action in terminating the marriage relation in 1931. * * *

‘In view of the conclusion thus reached as to plaintiff's first contention, it becomes comparatively easy to decide the questions raised by plaintiff's second and third contentions. If the defendant is under obligation to pay alimony to the plaintiff in such amounts as are necessary in order to maintain her in the station in life in which he had accustomed her to live at the time the decree was entered, insofar as he is now so able to do, then it follows that he must increase his payments sufficiently to make up for the amount of income tax which she is now required to pay on such alimony receipts. Jacobs v. Jacobs, 328 Ill.App. 133, 65 N.E.2d 588. By the same token, he must, if able, pay increased alimony, to compensate for the present diminished purchasing power of the dollar as compared to its purchasing power in 193...