Bremer v. Bremer

• Decision Date: 25 October 1954
• Docket Number: No. 33300,33300
• Citation: 122 N.E.2d 794,4 Ill.2d 190
• Parties: Alvina BREMER, Appellee, v. Elmer L. BREMER, Appellant.
• Court: Illinois Supreme Court

Page 794

122 N.E.2d 794

4 Ill.2d 190

Alvina BREMER, Appellee, v. Elmer L. BREMER, Appellant.

No. 33300.

Supreme Court of Illinois.

Oct. 25, 1954.

Joseph Keig, Chicago, for appellant.

Sol R. Friedman, I. S. Friedman, Chicago, for appellee.

HERSHEY, Justice.

Alvina Bremer, plaintiff-appellee, hereinafter referred to as plaintiff, commenced a divorce action in the circuit court of Cook County against the defendant-appellant, hereinafter referred to as defendant. The complaint, as amended, contained allegations as to the property holdings of the defendant, his earning capacity and his ability to support and maintain plaintiff, in addition to allegations that would warrant a decree for divorce.

The amended complaint sought a decree of divorce, temporary alimony, permanent alimony, attorney's fees and adjustment of property rights between the parties. On May 12, 1952, a decree of divorce was entered, by the terms of which the court retained jurisdiction to enter an order for permanent alimony, attorney's fees and to adjust property rights between the parties. These matters were referred to a master by the express terms of the decree of divorce.

Thereafter, after having received the master's reports and recommendations relative thereto, the court entered a supplemental decree awarding permanent alimony, fixing attorney's fees and ordering the conveyance of certain real estate by and between the parties. This appeal is from that supplemental decree, and since a freehold is necessarily involved an appeal lies directly to this court.

Initially, it is contended by the defendant that a circuit court, after a decree of divorce, does not have jurisdiction to enter a later, supplemental decree fixing attorney's fees for services rendered in the divorce proceeding. Defendant contends that the decree of divorce is necessarily based upon a 'final hearing' as that term is used in section 15 of the Divorce Act. (Ill.Rev.Stat.1951, chap. 40, par. 16.) The pertinent language of that section provides: 'The court may, in its discretion reserve the question of the allowance of attorney's fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and requitable, regardless of the disposition of the case.'

Having entered a decree of divorce, final for some purposes, does not mean that a court of equity has thereby divested itself of jurisdiction to dispose of other matters necessarily incident to the divorce proceedings. This is especially true when, as here, the court has by the express terms of its decree reserved jurisdiction to pass on the question of alimony, attorney's fees and property rights.

We have often stated that courts of equity have no general powers over divorce cases and matters relating thereto and that their jurisdiction must necessarily be based upon statutory authority. Arndt v. Arndt, 399 Ill. 490, 78 N.E.2d 272; Smith v. Smith, 334 Ill. 370, 166 N.E. 85; Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366. We have likewise often stated that a divorce proceeding partakes so much of the nature of a chancery proceeding that it must be governed to a great extent by the rules applicable thereto. Bowman v. Bowman, 64 Ill. 75; Walters v. Walters, 409 Ill. 298, 99 N.E.2d 342. In divorce matters the court has statutory jurisdiction to pass upon attorney's fees, alimony and property matters. The terms 'final hearing' in the context above quoted is not a limitation on the jurisdiction of the court to pass upon these matters subsequent...