Herrick v. Herrick

• Decision Date: 16 December 1925
• Docket Number: No. 17115.,17115.
• Citation: 319 Ill. 146,149 N.E. 820
• Parties: HERRICK v. HERRICK.
• Court: Illinois Supreme Court

319 Ill. 146

149 N.E. 820

HERRICK

v.HERRICK.

No. 17115.

Supreme Court of Illinois.

Dec. 16, 1925.

Proceeding by Robert Herrick against Harriet Herrick in which he petitions for a modification of a decree of alimony, and in which she also files a petition, praying for a rule to show cause why he should not be held in contempt for failure to comply with decree. From the order of the chancellor, Harriet Herrick appealed to the Appellate Court for the First District which modified the order and affirmed it as modified, and from such judgment she again appeals.

Affirmed.Appeal from Third Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; John J. Sullivan, Judge.

Montgomery, Hart & Smith, of Chicago (John R. Montgomery, of Chicago, of counsel), for appellant.

John F. Cashen, Jr., of Chicago, for appellee.

THOMPSON, J.

February 2, 1914, appellant and appellee entered into an agreement providing for the separate maintenance of appellant and for the support of their son, Phillip. The parties were married June 9, 1894, and lived together as husband and wife until February, 1913. The agreement recites that appellant is living apart from appellee without her fault, and that appellee is desirous of providing for appellant and their son a suitable and proper home and suitable support and maintenance. The agreement provided that appellee should deposit with certain named trustees bonds of a par value of 15,000, to be held in trust for the use and benefit of appellant and her son, Phillip. The trustees were given power to use the income, and, if necessary, the principal, to support the beneficiaries, and, if requested in writing by appellant, to invest the fund in a suitable dwelling, and furnishings to equip the same, for her use as a residence. Upon the death of appellant the trustees are directed to hold the fund, or any property purchased with it, in trust for the use and benefit of Phillip, as appellant shall by her will direct, and in the event she does not dispose of the fund by will the trustees are directed to hold the fund for the use and benefit of Phillip until he has reached the age of 25 years, and then pay over to him the fund or whatever remains of it. In the event of Phillip's death before that of his mother, the fund, or any part of it remaining at the time of her death which has not been disposed of by her will reverts to appellee. Appellee also agrees to keep in force $17,000 of life insurance, payable upon his death to the trustees, the income from such fund to be used for the benefit of appellant and the principal to be paid over as directed in the will of appellee. Appellee also agrees to pay to the trustees, semiannually, on the 1st days of March and September, the sum of $150, to be held in a special fund for the use and benefit of appellant in case of her illness or of some other situation deemed by the trustees to be an emergency. Appellee further agrees to pay to the trustees $350 a month during the lifetime of appellant for her proper support and maintenance, and to make provision for the support, education, and maintenance of Phillip. Each party released all interest which either had in the property of the other by way of homestead, dower, or otherwise. There was also a clause in the agreement which provided that, in case appellant became the wife of another person, the monthly payments and the payments to the emergency fund should cease, and the insurance policy, if still outstanding, should be assigned to appellee or his nominee.

In 1915 appellant filed her bill for divorce, and thereafter, on January 7, 1916, a supplemental agreement was made. This recited the making of the first agreement and the filing of the bill for divorce, and stated that it was the purpose of the parties to make proper provision for alimony for appellant in case she should be successful in her suit. By the supplemental agreement, the monthly payments were reduced to $300 a month, with a proviso that, if his income from professorial or literary activities should exceed $8,500 a year, he should pay to the trustees, for the use and benefit of appellant, 50 per cent. of the amount of such excess, the total amount of excess payments, however, not to exceed $600; and, in the event his earnings from such sources were less than $8,500 he should be entitled to a credit of 50 per cent. of the deficiency, except that his credit for no month should be greater than $50, and that his total credits for the year should not exceed $600. He further agreed to deposit $5,000 in securities as a guaranty of his making the monthly payments. He also agreed to keep a true and accurate account of all his earnings and income derived from professorial and literary activities, and to file with the trustees annually, on the 15th day of February, a written statement showing all such earnings and income during the 12 months next preceding the 1st day of the month of February in which such statement was made. On January 26, 1916, the court entered its decree granting to appellant a divorce and incorporating in its decree the two agreements as a proper provision for alimony for appellant and for the care, support, and education of the son, Phillip.

At the time the decree was entered, Phillip was 16 years old, all the parties were enjoying average good health, and appellee was employed as a professor at the University of Chicago. December 4, 1923, appellee filed a petition setting forth a change of circumstances, and asking that the court modify the provision for alimony. The petition alleges that appellee has made diligent efforts to comply with the terms of the agreements incorporated in the decree, and has borrowed large sums of money in order to meet his obligations; that because of the illness of his son from March, 1922, to March, 1923 he had contracted large bills for medical, surgical, hospital, and traveling expenses; that for more than two years he had suffered extreme ill health and had contracted large bills for medical and traveling expenses; that in March, 1923, because of his ill health, he was compelled to leave the University of Chicago and take up his residence in California; that because of a chronic bronchial trouble, which makes it impossible for him to endure the winter climate of Chicago, he has been compelled to resign his professorship at the University of Chicago and will be unable to follow his usual occupation.

To this petition appellant filed an answer, averring that the court retained jurisdiction of the cause solely for the purpose of carryinginto effect the agreement of the parties regarding alimony as expressed in the agreements, but that it did not retain jurisdiction for the purpose of modifying the terms of the agreements. She also filed a petition setting forth the provisions of the agreements for her support and maintenance, and alleging that appellee had failed to file the annual report of his earnings for the last two years, and that the only information she had respecting his earnings for the years ending on the 1st day of February, 1922, and the 1st day of February, 1923, consisted of the statements made in his petition for modification of the decree; that since the 1st day of November, 1923, he had failed to comply with the terms of the decree by paying the monthly payments required; that she is 60 years old, has no independent means, is in ill health, and is without sufficient funds to pay her bills. She prays that a rule be entered upon appellee to show cause why he should not be held in contempt for his failure to comply with the terms of the decree.

December 18, 1923, the chancellor entered an order releasing appellant from making the payments to the emergency fund and from filing the annual statements of his earnings, and directing him to pay to appellant for her fupport and maintenance $200 a month until the further order of the court. He was found to be in arrears $1,203, and this amount he paid. From this order an appeal was taken to the Appellate Court for the First District, and that court modified the order by requiring the filing of the annual statements, and affirmed it as modified. Upon the granting of a certificate of importance, this further appeal was prosecuted.

[1][2][3] The principal question...