Craig v. Craig

Citation163 Ill. 176,45 N.E. 153
PartiesCRAIG v. CRAIG et al.
Decision Date10 November 1896
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to appellate court, Third district.

Suit by Frances A. Craig against James R. Craig and others. From a decree modifying a decree for alimony, complainant appealed to the appellate court, where it was affirmed (64 Ill. App. 48), and she brings error. Modified.

Frank R. Henderson and E. M. Prince, for plaintiff in error.

Charles M. Peirce and James S. Neville, for defendants in error.

BAKER, J.

At the February, 1890, term of the McLean circuit court, the plaintiff in error, Frances A. Craig, obtained a divorce a vinculo matrimonii from her husband, James R. Craig, and she was awarded the custody of their two infant children, and the question of alimony was reserved for further hearing and consideration; and, by leave of court, the bill of complaint was amended, and Dellie J. Kibbie, William Kibbie, and Robert M. Craig made parties defendant, upon said question of alimony. In a further decree, entered on March 27, 1891, the court found that a certain conveyance of a tract of land, containing 80 acres, was in fraud of the marital rights of plaintiff in error; that the rights of the Kibbies and of Robert M. Craig, as well as the rights of James R. Craig, the husband, were subject to said marital rights; and permanent alimony amounting to $208 a year was decreed to her, and the decree made a lien on the land prior to any homestead right of said James R. Craig. On a subsequent bill or petition, filed on January 14, 1892, by Frances A. Craig, a decree was entered on May 31, 1892, by correcting a mistake in the description of said 80 acres of land; finding there was $338.90 of alimony due her to June 1, 1892; decreeing that from and after June 1, 1892, the alimony should be reduced to $100 per year, payable in quarterly installments of $25 each, ‘until the further order of this court, as permanent alimony’; making alimony a lien on the 80 acres prior to homestead and other rights of all the defendants; and directing the master in chancery to sell from time to time in case of default of payment, and to first exhaust the life estate of James R. Craig before selling any of the remainder in said premises. On September 10, 1894, plaintiff in error filed in court her petition, showing that there was due and unpaid to her, under the decree, seven quarterly installments of alimony, amounting to $175, together with interest thereon; further showing that the life estate of James R. Craig had already been sold; and praying that so much of the remainder of the premises be sold as is necessary to pay that amount, with costs. At the hearing had upon this latter petition, the court, on December 11, 1894, ordered, adjudged, and decreed ‘that the said James R. Craig pay to the said Frances A. Craig, in full of all alimony due or to become due under said bill and decree, the sum of $200; that the same be paid in quarterly installments, of $25 each, the first of which shall be paid on or before January 1, 1895, and $25 on the 1st of April, 1895, and $25 on the 1st of July, and $25 on the 1st of October, 1895, on the 1st of January, 1896, on the 1st of April, 1896, on the 1st of July, 1896, and on the 1st of October, 1896; that, unless said alimony be paid within 10 days after the same or any part thereof becomes due under this decree, the said complainant have such execution therefor as she may desire, directing the sheriff to sell sufficient of the premises described in the decree, subject to the life estate of James R. Craig, to satisfy such exection.’ And it was further ordered, adjudged, and decreed by the court ‘that, on and after the aforesaid payments shall become due and payable, the alimony in this case shall cease, and that there shall be nothing more paid under said original decree than the above-mentioned payments, meaning hereby to make this a final allowance for alimony in this case until the further order of this court; and that the original decree in this case be, and the same is, modified as herein provided.’ Plaintiff in error excepted to this decree, and prayed and was allowed an appeal therefrom to the appellate court; and in that court the decree was affirmed, and this writ of error then sued out.

The appeal allowed and taken to the appellate court was, specifically, from the decree rendered on December 11, 1894, modifying and changing the decree for alimony that had been rendered in favor of said Frances A. Craig at a former term of the court; and the writ of error to the appellate court brings before us for review that decree, and that only. It follows that the numerous assignments of cross error, questioning the decree for divorce, the decree for the custody of the children, the original decree for alimony, that the 80 acres of land were subject to the marital rights of plaintiff in error, the decree for the sale of the life estate of James R. Craig, etc., must be ignored. For that matter, neither the original bill upon which the divorce was granted, nor the amended bill upon which the decree of March 27, 1891, was based, are in the record that is before us, further than as they appear as instruments of evidence in the report of the master made in the matter of the bill of January 14, 1892.

It is assigned as error by the plaintiff in error that the court modified the decree for alimony without a petition so to do, and when the defendant was in contempt for nonpayment of alimony, and without hearing any evidence. The statute (Rev. St. c. 40, § 18) provides that, where a divorce had been decreed, the court may, on application, from time to time, make alterations in the allowance of alimony and maintenance, and the care, custody, and support of the children, as shall seem reasonable and proper. The statute does not prescribe in what manner the application for alterations in the decree shall be made. Ordinarily, it would be by petition, reasonable notice of which had been served upon the opposite party. It is not, however, indispensable that there should be a formal application therefor by petition. Upon a petition of the beneficiary under the decree for the equitable assistance of the court in the collection of alimony, the whole subject-matter of such alimony is sufficiently submitted to the court to authorize it to make changes in regard to prospective alimony, if it finds that the circumstances of the parties and the nature of the case have so changed as that there should be some modification in the decree for alimony in order to make it fit, reasonable, and just. It is true that here the defendant was in contempt of court in not paying the installments of alimony in...

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62 cases
  • Walters v. Walters
    • United States
    • United States Appellate Court of Illinois
    • October 9, 1950
    ... ... It does not and cannot affect alimony in which the beneficiary has a vested property right. Craig v. Craig, 163 Ill. 176, 45 N.E. 153, decided under a former statute; Adler v. Adler, 373 Ill. 361, 26 N.E.2d 504; and Banck v. Banck, 322 Ill.App ... ...
  • Duss v. Duss
    • United States
    • Florida Supreme Court
    • December 14, 1926
    ... ... court to modify its former order, nor does such fact ... necessarily require the court to refuse a reduction otherwise ... proper (Craig v. Craig, 163 Ill. 176, 45 N.E. 153; ... Kingman v. Kingman, 200 Ill.App. 338; Barclay v ... Barclay, 184 Ill. 375, 56 N.E. 636, 51 L. R. A. 351), ... ...
  • Lockman v. Lockman, 172.
    • United States
    • North Carolina Supreme Court
    • October 8, 1941
    ...111 So. 382, the obligation of the divorced husband to pay alimony was stated in language of similar import. See, also, Craig v. Craig, 163 Ill. 176, 45 N.E. 153. The defendant asserts in his demurrer that there is pending in the Circuit Court for Palm Beach County, Florida, another action ......
  • Banck v. Banck, Gen. No. 9397.
    • United States
    • United States Appellate Court of Illinois
    • March 14, 1944
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