Dooley v. Dooley

• Decision Date: 31 December 1885
• Citation: 19 Ill.App. 391,19 Bradw. 391
• Parties: PATRICK F. DOOLEYv.SARAH M. DOOLEY.
• Court: United States Appellate Court of Illinois

19 Ill.App. 391

19 Bradw. 391

PATRICK F. DOOLEY

v.SARAH M. DOOLEY.

Appellate Court of Illinois, Second District.

December Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. CHARLES BLANCHARD, Judge, presiding. Opinion filed April 5, 1886.

Messrs. HALEY & O'DONNELL, for appellant.

Messrs. FLANDERS & SHUTTS, for appellee.BAKER, J.

Sarah M. Dooley exhibited in the Will Circuit Court her bill for a divorce, charging her husband, Patrick F. Dooley, with habitual drunkenness for a period of more than two years; and afterward presented two supplemental bills alleging matters of threatened misconduct upon his part, and praying for injunctions. Answers were filed to these several bills. At the January term of the court, 1885, a rule nisi was entered against appellant that he should pay to appellee $100 as alimony pendente lite, and $50 as solicitor's fees, or show cause; but the rule was not either complied with or made absolute. At the May term of the court and on the 27th day of June, 1885, the rule, upon a hearing, was modified by the court, and an order entered of record to the effect that the court, having heard read the affidavits in support of the application of the complainant for alimony pendente lite, and having heard the evidence and arguments of counsel, and being fully advised in the premises, doth order that the defendant pay to complainant's solicitors for the use of said complainant and her children the sum of two hundred and fifty dollars on or before July 15, 1885, and fifty dollars per month on the 15th day of each month thereafter, during the pendency of the suit.

The objections urged to the order are two--that the amount allowed by the decree as alimony pendente lite and solicitor's fees is excessive; and that there is no evidence in the record to sustain the decree.

There is in the decree no finding of the facts upon which it is based; but it does appear therefrom that evidence and affidavits in support of the application made by the complainant were heard by the court. It may also be noted that it is further shown, by the order of the court allowing this appeal, that leave was given to file certificate of the evidence within twenty days; but it would seem such certificate was not filed.

By section 15 of the Divorce Act, it is provided that in every suit for a divorce the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit, and that the court may also require the husband to pay, during such pendency, such sum or sums of money as may enable her to maintain or defend the suit. The 13th section of the act gives the court power to make such order concerning the custody and care of the minor children of the parties during the litigation as may be deemed expedient and for the benefit of the children. In Foss v. Foss, 100 Ill. 576, the court held that this power to make an order concerning the care of minor children very clearly included power to make an order for the payment of a sum reasonably necessary for their support.

It may well be doubted that it is necessary that the facts, to justify an order or decree for the payment of moneys pending a divorce proceeding for the maintenance of the wife and children of the husband, should appear either upon the face of the decree or in the record. In Parker v. Parker, 61 Ill. 369, a decree for alimony was affirmed, although the facts upon which the decree was based were not found therein, or the evidence otherwise preserved in the record. That such evidence or facts did not appear in the record is indicated by various statements found in the opinion of the Supreme Court, and fully appears from an examination of the transcript of the record on file at Ottawa. In that case it was said of ...