Kelley v. Kelley
| Decision Date | 24 April 1925 |
| Docket Number | No. 16421.,16421. |
| Citation | 147 N.E. 659,317 Ill. 104 |
| Parties | KELLEY v. KELLEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Rosine Holmes Kelley against Clark Mansur Kelley for divorce. Decree for plaintiff. Subsequent decree, ordering defendant to pay alimony for support of herself and child, and solicitor's fees, was reversed by the Appellate Court, and plaintiff appeals.
Reversed and remanded.Appeal from Third Branch, Appellate Court, First District, on Error to Superior Court, Cook County; Walter P. Steffen, Judge.
Charles E. Erbstein, of Chicago, for appellant.
Appellant, Rosine Holmes Kelley, filed her bill in the superior court of Cook county asking that the marriage between her and Clark Mansur Kelley, appellee, be dissolved and that she be awarded the care and custody of their child, Barbara Anne Kelley, 8 months old. Appellee could not be found in the state and service was had by publication. May 16, 1922, a decree of divorce a vinculo matrimonii was granted and the care and custody of the child was awarded to appellant. Thereafter appellee returned to Cook county, and December 4, 1922, appellant filed a petition in the same cause alleging that she filed her bill charging appellee with extreme and repeated cruelty and praying for divorce and for alimony and solicitor's fees, and that a default decree was subsequently entered. She further alleged that appellee was then within the jurisdiction of the superior court of Cook county, and asked that he be summoned to show cause why he should not pay to appellant money for her maintenance and for the support of their child and for solicitor's fees. Appellee was duly summoned to appear at the next term of court, and January 3, 1923, he filed an answer, admitting that a final decree of divorce was entered May 16, 1922, and alleging that the court was without jurisdiction, at the time the decree was entered, to enter an order requiring him to pay alimony or solicitor's fees. The answer denies that the court has jurisdiction to enter a further order in the cause and asks that the petition be dismissed. There was a hearing on the petition and an order entered finding that the court had jurisdiction to consider the petition, and that appellee is an able-bodied man, is regularly employed, is earning $25 a week, is residing with his parents, is able to support appellant and their child, and that appellant has no means or property of her own. Appellee was ordered to pay to appellant the sum of $12.50 a week as alimony for her and their child until the further order of the court and to pay to appellant $75 for solicitor's fees. On appeal to the Appellate Court the decree was reversed. A certificate of importance was granted and this further appeal is prosecuted.
[1] The questions presented by this appeal are novel and a decision of them is bound to be far-reaching. Notwithstanding this, we have been compelled to make an independent search of the authorities and have not been aided by properly prepared briefs of counsel. Appellant has filed a brief citing an early case decided by this court where the only question involved was the modification of a decree in personam entered at a former term of court. The brief has not furnished us with any of the authorities from other jurisdictions which deal with the questions before us. Appellee has filed no brief at all. Rule 15 provides that each party shall file a printed brief in the cause. The brief of appellant should contain the points relied upon for a reversal and these points should be supported by authorities. If the question has been decided by this court it is not necessary to cite authorities from other jurisdictions, but if the question has not been decided by this court it is the duty of counsel for appellant to support his contentions by an authority from each jurisdiction that has decided it. Counsel for appellee took this case to the Appellate Court, and it was his duty to follow the case to this court and present the authorities relied upon to sustain his position. If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. If the case is not properly presented and the court is not given the benefit of precedents, there is danger of a decision being rendered that will not be in harmony with the weight of authority. It is the duty of attorneys practing in this court to present to the court the authorities supporting their views, and to assist the court in reaching a correct conclusion.
The Mosaic law recognized the right of a man to divorce his wife, and under the civil law either party might renounce the marriageunion at pleasure. The right of a court to grant an absolute divorce is derived entirely from legislative grant. Prior to the English Divorce Act of 1857 the right of the ecclesiastical courts to grant a divorce a mensa et thoro was recognized, but these courts did not have the power to grant a divorce a vinculo matrimonii. They sometimes entered decrees of annulment for causes which rendered the marriage void ab initio, but the only absolute divorces granted in England were by special acts of Parliament.
[2] While in this country the matter of granting a divorce involves the judicial process, it has always been recognized that the courts have only such power with respect to granting a divorce absolutely severing and canceling the marital bonds as the Legislature sees fit to confer upon them. Where the divorce amounts to nothing more than a separate maintenance, which is the kind of divorce that was granted by the ecclesiastical courts of England, the status of marriage continues, and the power to grant alimony with such a divorce carries with it the power to modify or alter the allowance of alimony to meet new conditions. This is not true, however, with respect to a divorce which destroys the marriage relation. In that case the obligation to support the wife ceases with the severance of the marriage relation except in so far as the decree of divorce by authority of the statute provides for alimony. Unless the statute granting the power to award alimony to the wife authorizes the court to alter the decree to meet new conditions, the decree is like a final decree in any other case and cannot be changed. Ruge v. Ruge, 97 Wash, 51, 165 P. 1063, L. R. A. 1917F, 721.
[3][4] In the case at bar appellant took her decree of divorce without personal service on appellee, and under those circumstances the chancellor was...
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