Atkins v. Atkins

• Decision Date: 20 March 1946
• Docket Number: No. 27461.,27461.
• Citation: 393 Ill. 202,65 N.E.2d 801
• Parties: ATKINS v. ATKINS.
• Court: Illinois Supreme Court

393 Ill. 202

65 N.E.2d 801

ATKINS

v.ATKINS.

No. 27461.

Supreme Court of Illinois.

March 20, 1946.

Appeal from Circuit Court, Logan County; Frank S. Bevan, judge.

Suit by Ethel W. Atkins against her husband, Walter B. Atkins, to compel him to contribute to plaintiff's support and maintenance. Decree for plaintiff, and defendant appeals.

Affirmed.

Adhering to opinion, 386 Ill. 345, 54 N.E.2d 488, judgment in which was vacated by the United States Supreme Court, 66 S.Ct. 20.

Michael Eckstein, of Springfield, for appellant.

Harold F. Trapp, of Lincoln, for appellee.

PER CURIAM.

On August 8, 1941, appellee, Ethel W. Atkins, filed this suit in the circuit court of Logan county, under the statute (Ill.Rev.Stat.1945, chap. 68, par. 22), to compel her husband, the appellant to contribute a reasonable amount to her support and maintenance while they were living separate and apart. Appellant's principal defense was that he had procured a divorce in Washoe county, Nevada, and that, since the bonds of matrimony had been severed, there could be no allowance under the statute for separate maintenance. The chancellor overruled such defense and awarded appellee support money and solicitor's fees. One of the questions presented on appellant's former appeal to this court (386 Ill. 345, 54 N.E.2d 488) was whether the Nevada decree was entitled to full faith and credit in this action and thereby operated as a bar to appellee's claim for support and maintenance. The decree of the trial court was affirmed in an opinion filed at the March term, 1944.

Certiorari was granted by the Supreme Court of the United States, 325 U.S. 846, 65 S.Ct. 1400, and at the October term, 1945, a memorandum opinion was filed which vacated the judgment of this court and remanded the cause ‘to enable it (this court) to reexamine its decision in the light of Williams v. North Carolina (325 U.S. 226), 65 S.Ct. 1092, (89 L.Ed. -, 157 A.L.R. 1366), and Esenwein v. Pennsylvania (325 U.S. 279), 65 S.Ct. 1118, (89 L.Ed. -); Busey v. District of Columbia, 319 U.S. 579, 580, 63 S.Ct. 1277,87 L.Ed. 1598, 1599;People of State of New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690, 691, 63 S.Ct. 840, 87 L.Ed. 1083(1085), and cases cited; State Tax Commission v. Van Cott, 306 U.S. 511, 515, 516, 59 S.Ct. 605, 83 L.Ed. 950(953).’ 66 S.Ct. 20, 90 L.Ed. -.

The Busey, Wilson and Van Cott cases do not deal with the effect to be given judgments or decrees of sister States under the full-faith-and-credit clause. They are cases where, pending review in the Federal Supreme Court, there had been a change in law or fact which necessitated a remandment of the cause to the court from which the appeal had been taken for a reconsideration in the light of such supervening change. In the Van Cott case, it was said (306 U.S. 511,59 S.Ct. 607): ‘In determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. We have said that to do this is not to review, in any proper sense of the term, the decision of the state court upon a non-federal question, but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case.’

It will be observed that neither the opinion nor order of remandment of the Federal Supreme Court specified the changes ‘in fact or in law, which have supervened since the judgment was entered’ which call for a reconsideration of the cause. When our former opinion was filed, the first Williams case (Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273) had been decided. Since then the Federal Supreme Court has had occasion to consider the Williams case on a basis of fact different from that in the first case, and to pass upon the Esenwein case. We assume the Federal Supreme Court concluded that its decisions in the second Williams case and Esenwein case constituted the supervening cause for which a re-examination of the case was ordered.

While the cause was pending in the Supreme Court of the United States, appellant filed three affidavits which appellee has moved this court to reject on the ground that evidence cannot be introduced before a court of review in this way. Two of such affidavits were signed by residents of Nevada who had known appellant since July, 1941. The other was signed by appellant. They were dated in July, 1945. The evidence purpose was to show by these affidavits that appellant had continued to reside in Reno, Nevada, subsequent to the entry of his divorce decree in 1941, that he was still residing there, that he had voted at elections held in that city and performed other acts consistent with having an established residence and domicile in Nevada.

There was nothing in the evidence when the cause was reviewed on the first appeal to show whether appellant continued to live in Nevada or had gone to another State. The first time any record before this court made any reference to such fact was when appellant filed his additional brief in this cause after its redocketing following the remandment. The affidavits are set forth in his brief with the statement that they were incorporated in the brief filed in the Supreme Court of the United States.

The facts stated in the affidavits, if admitted in evidence, would be relevant to the question of appellant's good faith in the establishment of a domicile in Nevada. But the constitution of this State forbids this court exercising original jurisdiction in any cases except those relating to revenue, mandamus and habeas corpus. In all cases other than the three named, the jurisdiction is appellate, only. Const.Ill. art. VI, sec. 2, Smith-Hurd Stats. This provision has been construed to mean that in the review of a record the court is not privileged to permit either party to introduce evidence into the record which was not made a part of the record while the cause was in the trial court.

Section 92 of the Civil Practice Act (Ill.Rev.Stat.1945, chap. 110, par. 216) undertook to introduce some new features into the practice before the courts of review of this State. The section specified certain things which a reviewing court might in its discretion permit to be done. By subparagraph (d) a court of review was authorized to permit such further testimony to be taken in, or presented to, the reviewing court as it might deem necessary, where evidence had been erroneously excluded or where there had been an omission of proof at the trial of some fact which, under the circumstances of the case, might subsequently be proved without involving any question for a jury, and without substantial injustice to either.

After Schmidt v. Equitable Life Assurance Society, 376 Ill. 183, 33 N.E.2d 485, 136 A.L.R. 1036, had been docketed in this court, one of the parties undertook to supply evidence to correct a material defect in the record by the introduction of affidavits on motion. It was held that subparagraph (d), insofar as it undertook to authorize the introduction of evidence in a court of review that had not been made a part of the record when the cause was pending in the trial court, was unconstitutional. If the affidavits should be considered as evidence, it would be assuming original jurisdiction in reference to such affidavits, an act which the constitution forbids in this kind of case.

The rejection of appellant's attempt to show by affidavits that he established his domicile in Nevada in good faith deprives him of no constitutional right. His Nevada decree was entered December 23, 1941, and on December 31 following he pleaded it in bar of appellee's action. This cause was not tried until March, 1943. In the meantime, appellee, by motion, challenged the sufficiency of appellant's decree on the ground that the domicile had not been established in good faith in Nevada. In November, 1942, the chancellor ruled on appellee's motion and outlined his views as it then appeared on the face of the record, which views were in accord with his final holding. Appellant appeared by counsel at the final hearing of evidence and interposed several objections to appellee's evidence. Such objections were founded on the contention that the Nevada decree was valid. Appellant elected to rest his claim upon the evidence that appeared in the transcript from the Nevada court. In view of the constitutional provision thus limiting the jurisdiction of this court in cases of this character, the motion of appellee to reject the affidavits will be sustained.

In the former consideration of this case we perceived that the first Williams case was distinguishable from this on a very important question of fact. It was noted that the opinion in the Williams case was founded upon the admission that the parties who had...