Banck v. Banck, Gen. No. 9397.

• Decision Date: 14 March 1944
• Docket Number: Gen. No. 9397.
• Parties: BANCK v. BANCK.
• Court: United States Appellate Court of Illinois

322 Ill.App. 369

54 N.E.2d 577

BANCK

v.BANCK.

Gen. No. 9397.

Appellate Court of Illinois, Third District.

March 14, 1944.

Appeal from Circuit Court, Sangamon County; L. E. Stone, Judge.

Action for divorce by Hans J. E. Banck against Tannie G. Banck, wherein defendant obtained a decree of divorce on her uncontested counterclaim on the statutory ground of willful desertion. From an order granting plaintiff's petition to modify the decree by releasing plaintiff from further payments of alimony and releasing plaintiff's real estate from any lien for payment thereof because of defendant's remarriage, defendant appeals.

Affirmed.

DADY, P. J., dissenting. Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, for appellant.

Brown, Hay & Stephens, of Springfield (Robert A. Stephens, Jr., of Springfield, of counsel), for appellee.

RIESS, Justice.

By this appeal, the defendant seeks to reverse an order of the Circuit Court of Sangamon County modifying a decree for the payment of alimony.

It appears from the record that on May 20, 1941, defendant-appellant obtained a decree of divorce from plaintiff-appellee upon her uncontested counterclaim on the statutory ground of wilful desertion. The decree provided, inter alia, “that the parties herein have mutually agreed upon a property and alimony settlement by virtue of which, it has been agreed that the Defendant henceforth own the dwelling house in which she is now living and described as 1524 Dial Court, Springfield, Illinois; that the said Plaintiff execute his quit-claim deed to her therefor; and that he further pay and discharge the mortgage thereon now existing; that the said Defendant shall have all the furniture now contained in said real estate, and also a certain Lincoln automobile; that in addition thereto, said Plaintiff shall pay the said Defendant the sum of $4500 as gross alimony as follows, to-wit: $500 upon the rendition of this decree and the balance in monthly instalments of $100 each payable on the first day of each and every month hereafter, commencing the first day of June A. D. 1941, and that he further pay to her the sum of $500 for solicitors' fees in and about prosecuting her suit herein; that the said Defendant convey by her quit-claim deed all of her right, title and interest in and to all the remainder of the real estate owned by the said Plaintiff.” The decree further provided “that said property and alimony settlement heretofore referred to shall be, and the same is hereby approved” and that the decree remain a lien upon the real estate of plaintiff until he shall have paid the “gross alimony” and solicitors' fees and in case of his default, the said real estate shall be sold to pay the same. Certain personal chattels and securities were awarded to the plaintiff and the property of each party was decreed to be owned and held free and clear of all claims or demands of the other party resulting from the marriage relationship, including dower, homestead, award and alimony. The decree further found that the husband then earned $600 per month and that the wife was not employed and had no means of support.

Thereafter, said $500 lump sum and all subsequent $100 monthly instalments of alimony were paid by the plaintiff to the defendant as they became due according to the terms of the decree, to the date of September 28, 1942, on which latter date the defendant-appellant intermarried with one Elmer Allison, in Hannibal, Missouri. Plaintiff-appellee thereupon petitioned the Court to be relieved from further payments of alimony accruing after said date under and by virtue of the provisions of Section 18, Chapter 40, Illinois Revised Statutes, 1941, Smith-Hurd Stats. c. 40, § 19 (Jones Ill.Stats.Ann., 109.186), being an amendment enacted in 1933 to said Section 18 of the Divorce Statute, which amendment provided “that a party shall not be entitled to alimony and maintenance after remarriage.” The petition to modify the decree was duly heard and a decree was entered by the Chancellor granting the prayer of the petition and releasing plaintiff from further payments of alimony to the defendant and also discharging and releasing plaintiff's real estate from any lien for the payment thereof; the Chancellor expressly finding that by reason of said remarriage, “the Plaintiff is entitled to be relieved of all payments of alimony after September 28, 1942.” After motion to set aside said order, which was denied, the defendant perfected her appeal to this Court.

Defendant-appellant assigned the following errors as grounds for reversal, viz: (1) Lack of jurisdiction of the Court over the cause or subject matter; (2) that the right of gross alimony was a vested right over which the Court has no jurisdiction; (3) error in holding that defendant's remarriage terminated her right to receive the total amount of gross alimony settlement; (4) error in terminating plaintiff's obligation to pay the unpaid instalments of alimony accruing after defendant's marriage.

The above Section 18, as so amended, provides as follows:

“When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; and order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court, where a party wilfully refuses to comply with the court's order to pay alimony and maintenance, provided that no alimony or separate maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the court's order, and provided further that a party shall not be entitled to alimony and maintenance after remarriage. And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.”

The decree, in so far as it concerns a property settlement and the payment of immediate and subsequent periodic alimony payments, was entered by the consent of the parties and there is no controversy concerning the facts. Appellant contends, as a matter of law, that the right of defendant to receive the unpaid instalments for the balance of “gross alimony” became and is a vested right, by virtue of the terms of the property settlement and consent decree which she was entitled to receive in periodic payments as the same fell due on dates subsequent to the date of her remarriage and that the above provision of the statute is not applicable to the facts herein.

Appellant's uncontested counterclaim first sought a decree of separate maintenance and was later amended to pray for an absolute divorce, containing and retaining, however, the specific prayer “that she may be awarded alimony to maintain herself according to his (the husband's) station in life.” The above specific prayer of the amended petition, the language of the decree granting the same and the express understanding of the Chancellor, who heard the testimony and granted both the original decree and the subsequent order modifying the decree, persuasively evidence the meaning and intent thereof and the understanding of all parties in relation thereto. The alimony previously agreed upon by the parties became merged in and was set forth in the decree itself, which expressly found the defendant to be without means “to provide support for herself” and provided for the periodic monthly payments in question extending over an approximate five year period granting an allowance to be awarded as “alimony to maintain herself” according to the husband's station in life, which terms were duly complied with from the date of the decree on May 20, 1941, to the date of appellant's marriage to a second husband on September 28, 1942.

The Chancellor below, who heard the case and entered both the original and modified decrees, in a short opinion filed with the latter, stated: “The decree in question is a decree for alimony. The decree so recites it. The Court fixed the maximum payments at the sum of $4500 and provided it should be paid in monthly instalments of $100 apiece. The Court might just as well have said that the maximum should be five years instead of $4500. In either case, it must be understood that the decree of the Court had in it the express mandatory language of the Statute, even though it was not specified in said decree * * *.” The Court further said that: “Counsel for respondent has laid great stress on the finding of the Court and that this was a decree for money in gross. It was alimony, however, and was to be paid on the instalment plan.” Clearly, the alimony provisions so agreed upon by the parties, so prayed for in the counterclaim, so allowed and ordered by the Court to be paid on terms set forth in the decree for defendant's maintenance, became thereby merged in and was controlled by the terms of said decree and the statutory provisions applicable thereto.

The application of the amendatory language of the above statute providing for nonpayment of alimony and separate maintenance after remarriage has been construed by the Courts of Review of this State in a number of cases. While the decisions in Illinois are not in entire harmony upon the right of the Chancellor to modify a decree for alimony awarded in gross, since each case depended upon the particular facts and circumstances presented for review under the decree in question, the Courts have uniformly held that as between the parties, the mandatory language of Section 18 depriving the recipient of further alimony payments in the event of remarriage is binding both upon the parties and the Court and becomes by implication a part of the decree. The payment of $4500 in...