Cole v. Cole

• Decision Date: 12 May 1892
• Citation: 142 Ill. 19,31 N.E. 109
• Parties: COLE v. COLE.
• Court: Illinois Supreme Court

142 Ill. 19

31 N.E. 109

COLE

v.COLE.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from appellate court, first district.

Petition by Frank F. Cole against Eleanor L. Cole praying that petitioner be relieved from a decree ordering him to pay alimony. The petition was dismissed on demurrer, and the appellate court affirmed the judgment. Petitioner appeals. Affirmed.

D. T. Duncombe, for appellant.

Henry M. Pierce, for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

October 27, 1887, plaintiff in error filed his petition in the superior court of Cook county, in which it was alleged that Eleanor L. Cole filed her bill for divorce in the said court against him, and that on the 20th day of May, 1885, a decree of divorce was entered, dissolving the marriage, and decreeing that the petitioner pay said complainant, as and for alimony, the sum of $50 per month, commencing June 1, 1885, and continuing until the further order of the court; that in pursuance of said decree he paid $200, parcel of said alimony; that at the time he paid said sum he was informed and believed that said Eleanor had been guilty of acts of adultery, but did not have the evidence thereof. The petition then charges that ever since the entry of said decree, and before, the said Eleanor has been constantly guilty of acts of adultery, and has led an immoral, unchaste, and adulterous life; and charges such acts with a person named, and others in Chicago, Toronto, and elsewhere; and makes general charges of prostitution; and alleges that at the time of the divorce he was unable to procure evidence of her infidelity, but has since obtained it. The prayer is that the decree for alimony be vacated and set aside, and the petitioner relieved from further payment, etc. A demurrer was interposed and sustained, and the petition dismissed. On appeal to the appellate court of first district, the order of the superior court was affirmed. 35 Ill. App. 544.

SHOPE, J., ( after stating the facts.)

It is contended that the decree for alimony is res adjudicata; that the court, after the term at which the decree was rendered, was without power to alter or change the allowance, or vacate the decree. The statute provides that when a divorce shall be decreed the court shall make such order touching the alimony and maintenance of the wife, the care, custody, and support of the children, as, from the circumstances of the parties and the nature of the case, ‘shall be fit, reasonable, and just; * * * and the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care and custody of the children, as shall appear reasonable and proper.’ Section 18, c. 40, Rev. St. The power over the subjectmatter of alimony is not exhausted by the entry of the original order, but is, under the statute, continuing, for the purpose, at any time, of making such alterations thereof as shall appear to the chancellor, in the exercise of a judicial discretion, reasonable and proper. Foote v. Foote, 22 Ill. 425;Stillman v. Stillman, 99 Ill. 196;Lennahan v. O'Keefe, 107 Ill. 620. The application for an alteration or modification of the decree is always addressed to the judicial discretion of the chancellor, and ordinarily, in the absence of fraud in procuring the decree, the inquiry is in all such cases whether sufficient cause has intervened since the decree to authorize or require the court, applying equitable rules and principles, to change the allowance. The cases cited, and others in this court, construe the statute as authorizing the interposition of the court where the circumstances of the parties have changed since the former order, and as giving the court power, for causes accruing subsequently, to alter and modify the allowance to meet the changed condition of the party. It is not intended to continue the right to alter or modify the allowance, upon the state of case existing when the decree was entered, or to review the action of the chancellor therein. The parties had their day in court, with the right of appeal if the decree was deemed erroneous; and it cannot be supposed that it was intended that the court should sit in review of its own decrees, or that the same or some succeeding chancellor presiding in the same court should, after the lapse of indefinite time, have power to reverse, alter, or modify a decree for alimony, upon the facts existing at the time of its entry. This we understand to be the uniform holding in this state and elsewhere. Bishop (2 Mar. & Div. § 429) says: ‘The application for change is founded upon new facts which have occurred since the decree was originally made; and, in the absence of new facts, the original decree is deemed to be res adjudicata between the parties, which, like any other judgment, is not to be disturbed on a further hearing.’

The question presented in this case, therefore, is whether the adultery of the wife, subsequently to divorce and allowance of alimony, as set forth in the petition, will authorize the interposition of the court to alter, modify, or set aside the decree for alimony. The allowance was to the wife alone. It appears by the original decree, which is in the record, that the divorce was granted at the suit of the wife for the willful misconduct of the husband. There is, however, nothing in the petition or record showing, or tending to show, the means or financial ability of the parties, or that any change therein has taken place. Whether the allowance was made to the wife for her reasonable support, which the husband was required by law to furnish her out of his estate, or, in whole or in part, by way of restitution of property brought by her to the husband, or as her reasonable and equitable share of an estate accumulated by their joint labor and economies, nowhere appears. At the common law the personal property and money of the wife became the property of the husband absolutely, upon his reducing it to possession, and, independently of the conditions creating tenancy by the curtesy initiate, he was upon the marriage entitled to the possession of her lands, during coverture, de jure uxoris. In England, prior to the passage of the divorce act, (20 & 21 Vict. c. 85,) the courts were authorized to grant divorces a mensa et thoro only, except for causes rendering the marriage void ab initio. The universal practice, upon decreeing a divorce from bed and board, was to allow the wife, out of the income of the husband or his estate, a reasonable sum for her support, bearing, usually, a fixed relation to the amount of such income. There being no dissolution of the marriage relation, the property rights were unaffected by the decree, and the right of the wife to demand and the duty of the husband to provide support for the wife, suitable to their means and condition of life, continued as before the decree. The policy of the law, as administered in the ecclesiastical courts, looked to a reconciliation of the parties and preservation of the marriage relation, and hence the allowance was for the reasonable support of the wife only. The courts very frequently sought to do justice by increasing the allowance, in cases where the property came from the wife, yet the alimony allowed was upon the basis of the wife's reasonable support during the separation. From this practice of the ecclesiastical court is derived the techncial definition that alimony is ‘that support which the husband on separation is bound to provide for the wife, and is measured by the wants of the wife,...