Buehler v. Buehler

• Decision Date: 05 June 1940
• Docket Number: No. 25308.,25308.
• Citation: 27 N.E.2d 466,373 Ill. 626
• Parties: BUEHLER v. BUEHLER.
• Court: Illinois Supreme Court

373 Ill. 626

27 N.E.2d 466

BUEHLER

v.BUEHLER.

No. 25308.

Supreme Court of Illinois.

April 10, 1940.

As Modified on Denial of Rehearing June 5, 1940.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Rudolph F. Desort, Judge.

Action by Goldie Buehler against Albert C. Buehler for divorce or separate maintenance. From a judgment of the Appellate Court, 300 Ill.App. 607, 21 N.E.2d 56; 305 Ill.App. 609, 27 N.E.2d 1008, which partly affirmed and partly reversed and remanded with directions a decree of the superior court, defendant appeals, and plaintiff assigns cross-error.

Judgment in accordance with opinion.

Vernon R. Loucks, of Chicago, for appellant.

Jacob G. Grossberg and Harry May, both of Chicago, for appellee.

GUNN, Justice.

In July, 1935, Goldie Buehler filed a complaint against her husband, Albert C. Buehler, for divorce, charging cruelty; in the alternative she prayed for separate maintenance. There were four children named Carl, Barbara, Albert C., Jr., and Rose Marie, at that time of the respective ages of fourteen, thirteen, twelve, and eight. A decree was entered in favor of plaintiff on the ground of cruelty. Permanent alimony in her favor was fixed at $175 a month and an additional sum of $75 a month for the two children Barbara and Albert C., whose custody was awarded to her. She was given all the household goods and an equal interest with the defendant in the home occupied jointly by the parties. Defendant was also required to pay the taxes and interest on the mortgage on said premises, to be later reimbursed from plaintiff's share when the property was sold. The decree also provided it should not deprive or release the plaintiff's right of dower in any of defendant's property and that jurisdiction was retained over the parties to enforce the decree. Plaintiff's attorney was awarded the sum of $4,500 solicitor's fees. The matter of the property and income of the defendant was referred to a master in chancery who held extensive hearings and recommended the amount of alimony and support money later fixed by the court.

The plaintiff appealed to the Appellate Court for the First District and that court increased the amount of solicitor's fees in the sum of $1,500, allowed the sum of $1,000 as fees to plaintiff's solicitor for services after the decree in the superior court and including that in the Appellate Court, increased the permanent alimony of the wife to $300 a month and awarded the custody of the youngest child, Rose Marie, to the mother, with support allowance of $75 per month, instead of to the father. From this judgment of the Appellate Court, Albert C. Buehler petitioned for and was allowed an appeal to this court and Goldie Buehler assigned cross-error because she was not allowed to amend the prayer of her complaint from divorce to separate maintenance after all the testimony was in.

No authority has been furnished authorizing the Appellate Court to fix solicitors' fees where the wife prosecutes the appeal. The statute (Ill.Rev.Stat.1939, chap. 40, par. 16) provides that in case of an appeal by husband or wife the court in which the decree or order is rendered may require the payment of money for his or her defense pending the appeal. The appeal to the Appellate Court was taken by the wife. The statute does not authorize alimony or solicitors' fees for appellant's solicitor but only for defense pending an appeal. In Jenkins v. Jenkins, 91 Ill. 167, we held that such an allowance in following an appeal should be made in the circuit court. Section 8 of the Courts Act (Ill.Rev.Stat.1939, chap. 37, par. 32) provides that Appellate Courts may only exercise appellate jurisdiction. The Appellate Court had no authority under the statute to allow solicitor's fees for services on appeal and none existed at common law. Neither was the awarding of the additional sum of $1,500 for plaintiff's solicitor's fees justified. When the fees were fixed the parties agreed to leave the matter to the court's own knowledge of the value of the services after plaintiff's attorney testified he spent 700 hours on the case. This was equivalent to 100 full court days to prepare and try a case involving four acts of cruelty and ascertaining the amount of defendant's income. There was a great amount of repetition of practically the same testimony. For instance, the plaintiff was called on four separate occasions before the master and on seven different occasions before the court, either to restate something already testified to or to deny some trivial circumstance brought out in the evidence. The evidence shows the plaintiff and her husband and the three children who testified were upon the witness stand on several separate occasions with very little material addition to their original testimony. Solicitor's fees awarded in case of this kind are for services necessarily rendered and not merely for time spent in repetition of proof of the same matter. Moreover, the parties, in effect, made the trial judge the arbitrator of the amount of solicitor's fees to be fixed and in so doing he doubtless took into consideration the time that was properly and necessarily expended by plaintiff's attorney. The action of the Appellate Court in increasing the amount of solicitor's fees in the sum of $1,500 was not justified.

The superior court awarded the custody of the oldest child and youngest child to appellant. At the time of the decree Rose Marie was ten years of age and at the present time is almost thirteen. No facts appear in this record to indicate that the husband is an improper person to have the custody of any of his children. The oldest and youngest indicated a preference for him and the other two for the mother. Great stress was placed by appellee upon improper conduct of appellant with respect to association with his private secretary. Not only is there no allegation...