Harding v. Harding

• Decision Date: 31 October 1892
• Citation: 32 N.E. 206,144 Ill. 588
• Parties: HARDING v. HARDING.
• Court: Illinois Supreme Court

144 Ill. 588

32 N.E. 206

HARDING

v.HARDING.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from appellate court, first district.

Suit for separate maintenance by Adelaide M. Harding against George F. Harding. An order was entered granting temporary alimony and suit money, which was reversed by the appellate court. Complainant appeals. Modified.

Stiles & Lewis and John S. Cooper, for appellant.

W. J. Ammen, for appellee.

PER CURIAM.

Appellant filed her bill in the circuit court of Cook county for separate maintenance, alleging that she was living separate and apart from her husband, appellee, without fault on her part. The bill, among other things, alleged that two daughters, issue of the marriage between appellant and appellee, and aged, respectively, 11 and 15 years, were living with appellant, and supported by her, and praying for their custody. Answer was filed, admitting the marriage, and putting in issue other material allegations of the bill, to which replication was filed. Issue being thus formed, appellant filed her petition for temporary alimony, praying that there be allowed her out of the estate of appellee a suitable sum to pay for the necessary support and maintenance of herself and the said two daughters from the time of the separation to the filing of the petition, and for the suitable and proper alimony, pendente lite, for the support and maintenance of herself and said daughters, and an allowance for solicitors' fees and other expenses of the litigation. On hearing of the petition for temporary alimony, the court, by its decree, ordered appellee to pay appellant $900 for support of herself and said daughters to that date, and the further sum of $300 on the first day of each and every month, commencing on a day named, for her own support and maintenance; and the further sum of $180 per month, beginning at the same date, for the support of the daughters mentioned, pending the litigation; and the further sum of $1,000 solicitors' fees, and $400 for other expenses of her suit. No order was made in respect of the custody of the daughters; that question being expressly reserved to the final hearing. On appeal to the appellate court, the order of the circuit court was reversed in toto, and the case is brought to this court by the appeal of the complainant.

It is first insisted that there was not a sufficient showing on this preliminary hearing that appellant was living separate and apart from her husband, without her fault, to warrant the entry of the order of the court. Section 1 of the statute, entitled ‘Separate Maintenance,’ provides ‘that married women who, without their fault, now live, or hereafter may live, separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their husbands for a reasonable support and maintenance, while they so live, or have so lived, separate and apart; and, in determining the amount to be allowed, the court shall have reference to the condition of the parties in life and the circumstances of the respective cases; and the court may grant allowance to enable the wife to prosecute her suit, as in cases of divorce.’ Rev. St. 1891, c. 68, § 22. It is not qu stioned that the allegations of appellee's original and amended bills are sufficient, if proved, to entitle her to relief. The answer denied these allegations, thus forming issues in the trial for which counsel must be retained, evidence taken, and other expenses necessarily be incurred; and, pending the trial, the complainant must live, and, if entitled to the relief, will ultimately be entitled to such an amount, by way of separate maintenance, as would have supported her in the station in life to which she was entitled to be supported as appellee's wife. It is no objection to the allowance being made, that the husband denies what the wife alleges. To ascertain the truth, in respect of the issues made by the bill and answer, is the purpose of the trial, and, to enable the wife to properly present her cause, the purpose of the allowance. To hold that the mere denial by the defendant of the matters alleged would put the complainant upon proof would be subversive of the whole theory upon which the allowance of temporary alimony is based. McGee v. McGee, 10 Ga. 477; Wilson v. Wilson, 2 Dev. & B. 377; Daiger v. Daiger, 2 Md. Ch. 335; Wright v. Wright, 1 Edw. Ch. 62;Porter v. Porter, 41 Miss. 116; Lotowich v. Lotowich, 19 Kan. 451; Scoggins v. Scoggins, 80 N. C. 318. The court may, if it deems it necessary, enter into a sufficient examination of the case, to determine the good faith of the complainant in exhibiting her bill, which will ordinarily be confined to an inspection of the pleadings, of which the court may require verification; and the court will, in the exercise of its judicial discretion, make or withhold the allowance, as it shall appear that the wife has or has not shown by her pleadings a meritorious cause of action or defense, and is or is not proceeding in good faith. Bish. Mar. & Div. 384, 406, 423; Stew. Mar. & Div. §§ 383-386; Brown, Div. (Amer. Ed.) 244; Poynt. Mar. & Div. 247. In Newman v. Newman, 69 Ill. 167, we said: ‘In a divorce suit, while the matters in controversy are being litigated, the wife will be presumed to be entitled to support until it is shown, by the result of the trial, that her claim is forfeited.’ Jenkins v. Jenkins, 91 Ill. 167;Foss v. Foss, 100 Ill. 576. The rule grows out of the duty of the husband to maintain and support his wife, and protect her from oppression and wrong.

It is, however, insisted, in effect, that in proceedings in equity, under the statute, the court is not justified or authorized in awarding provisional alimony; that, the statute authorizing an allowance ‘to enable the wife to prosecute her suit,’ the award must be confined to the actual expenses of the litigation, or what is sometimes called ‘suit money.’ We are not disposed to give this remedial statute so narrow and restricted a construction. By the common law, the duty rested upon the husband to provide for his wife a reasonable support; but the wife was without remedy by the common law to enforce her right, or to compel observance by the husband of that duty. The statute, recognizing the obligation of the husband and the defect in the common law, gives to the wife a remedy in her own name, in equity, whenever she is living apart from her husband without fault on her part. The remedy is given in equity, and, when the aid of that jurisdiction is properly invoked, it necessarily calls into activity all of the ordinary powers of the court necessary to render the remedy efficacious and complete. Upon bills for separate maintenance, as in divorce cases, the court is required to deal with the rights and duties of the parties, growing out of their marital relation, and, in the jurisdiction to determine the causes, there necessarily exists the power to compel the doing of such acts by the parties as are necessary to effectuate the purpose for which the jurisdiction is conferred. Thus, in speaking of the power to grant provisional alimony independently of statute authorizing it, Bishop says: ‘It springs necessarily from the legal relation of the parties, and the condition of facts, appearing of record, before the court to which the application is made.’ By reference to the authorities cited, it will be found that the uniform practice of the ecclesiastical courts of England, when divorces a mensa et thoro only were granted, was to allow provisional alimony and suit money upon proper application. This statute is to be liberally construed to advance the remedy. There is the same reason why the wife, who is compelled to live apart from her husband without fault, should receive that reasonable support that he is bound by law to provide her pending the determination of her suit, as that which exists when she is complainant in a divorce proceeding. To refuse to allow her a reasonable support pendente lite would in many cases be to deny her the right to prosecute her suit altogether. The legislature has intended to place bills of this character upon the same footing, in the respect being considered, as proceedings for divorce; and we are of opinion that the court is warranted, in proper cases, in granting such allowance to the wife as is usual and proper in divorce proceedings; and such has, as we understand, been the uniform practice in this state since the passage of the statute referred to.

It appears that appellee is a man of great wealth,-a millionaire, at least. His gross annual income is placed as high as $120,000; his net income from $15,000 to $30,000. The former and smaller figure is the sum probably placed by appellee, but in the account rendered of expenditures, there are many items for betterments placed upon his property, and include the purchase of some land, finishing of houses and the like, which, if we understand correctly, means simply a devotion of so much of his income to principal of the estate. An analysis of the testimony, excluding items that may be regarded as investments, will show an income largely in excess of $30,000 per annum net. On the other hand, it appears that appellant is the owner of a considerable amount of property, consisting mainly of notes, bonds, and stocks. The income derived from this property by appellant, and unclaimed by appellee, amounts, as appears, to $958.40 per annum. The parties had 7 children, ranging from 31 years down to 11 years at the time the bill was filed, and all but the 3 younger having reached their majority.

The principal question discussed by counsel is whether, under these circumstances, the wife having property in her own right, the court could, or, if it could, it ought, in the exercise of sound discretion, make the wife an allowance out of the husband's estate pendente lite. Whether an allowance shall be made or not, in the nature of temporary alimony, rests in the...