Maginnis v. Maginnis

• Decision Date: 28 October 1926
• Docket Number: No. 16852.,16852.
• Citation: 323 Ill. 113,153 N.E. 654
• Parties: MAGINNIS v. MAGINNIS.
• Court: Illinois Supreme Court

323 Ill. 113

153 N.E. 654

MAGINNIS

v.MAGINNIS.

No. 16852.

Supreme Court of Illinois.

Oct. 28, 1926.

Error to First Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas J. Lynch, Judge.

Suit by Carrie A. Maginnis against Eugene Maginnis. Decree for complainant. On petition by defendant to be released from payment of alimony. Decree modifying alimony was reversed in part by the Appellate Court (237 Ill. App. 628), and cause was remanded, and petitioner brings certiorari.

Judgment of the Appellate Court reversed, and order of circuit court affirmed.Frank B. Teed, of Chicago, and Daniel Riley McMaster, of Lake Bluff, for plaintiff in error.

Millard R. Powers, of Chicago, for defendant in error.

DE YOUNG, J.

Carrie A. Maginnis filed her suit for divorce in the circuit court of Cook county against Eugene Maginnis, and on September 26, 1916, a decree of divorce on the ground of desertion was rendered. By the provisions of the decree the custody of Ninetta Helen Maginnis, a daughter 11 years of age, was awarded to the mother, and the defendant was ordered to pay the complainant for the support and maintenance of the daughter, and for the use of herself so long as she remained unmarried, $25 per week until the further order of the court. The defendant was further required to pay the premium accruing from time to time thereafter upon a policy of insurance on his life for not less than $5,000 in which the complainant and the daughter should be named as beneficiaries. The complainant was awarded the household furniture, valued at $1,000, and the defendant was directed to pay the solicitor's fees and costs. On January 17, 1917, the insurance policy was deposited in escrow with Charles F. Loesch, the defendant's solicitor, in accordance with a letter from the defendant, in which it was stated:

‘This policy is to be held by you for the benefit of my daughter and said Carrie Arnold Maginnis, and not to be surrendered except upon written order of myself and the two parties above named.’

The letter was afterwards signed by the complainant. Subsequently, on December 10, 1919, the decree was modified by reducing the alimony. On January 25, 1924, the defendant filed his petition in the cause alleging that he had complied with the provisions of the decree in all respects until July 6, 1920, when the complainant married De Coursey F. Niles, that the daughter became 18 years of age on October 22, 1922, and that she resided with and was supported by her father. The prayer of the petition was that the provisions of the decree with reference to the payment of alimony and the insurance premium be declared no longer effective and that the defendant be released therefrom. The complainant filed an answer to the petition, in which she averred that the findings of the decree with respect to aiimony and the insurance premium were the result of an agreement between the parties. A hearing was had on the petition, in support of which the defendant testified that the decree of divorce had not been agreed upon but was entered by the court pursuant to a consideration of the evidence adduced in open court; that the object of the provision requiring the payment of the insurance premium was to secure the payment of alimony, and that the insurance policy was deposited in escrow solely for the purpose of satisfying the complainant that it would not be misplaced or destroyed during the period in which alimony was to be paid. On February 15, 1924, the court found that the allegations of the petition with reference to the remarriage of the complainant, the majority of the daughter and her support and maintenance by her father, were true, and that the decree of divorce required the payment of the premium on the life insurance policy ‘as a security or protection for the payment of alimony to the complainant during the period in which she should remain unmarried.’ The decree was modified so as to release the defendant from the obligation thereafter to pay alimony and the premium on the life insurance policy. The complainant prayed an appeal from this order of modification to the Appellate Court for the First District. That court found the order erroneous to the extent that it exempted the defendant from the payment of the life insurance premium, and accordingly reversed the order in that respect and remanded the cause for further proceedings consistent with its opinion. Upon a petition to this court by the complainant, a writ of certiorari was awarded, and the record is here for a further review.

It appears that the plaintiff in error was a dentist, and in her bill for divorce the defendant in error alleged that her husband was possessed of personal property, consisting of household furniture and effects, of the probable value of $1,000, and that he received from the practice of his profession about $3,500 annually. No other allegation was made in the bill with reference to the property owned or possessed or income derived by the husband, and it must be presumed that the value of his property, and the extent of his income were stated at their maximum. At the time the decree was rendered, the daughter was 11 years of age. It was the duty of the plaintiff in error to support his wife and daughter, and, when the divorce was granted to the wife that obligation was specifically defined by the decree. The tangible property of the plaintiff in error, inconsiderable in value and yielding no income, was awarded to the defendant in error. The obligation to support was not discharged by the payment of a gross sum, but was necessarily embodied in the decree as a continuing obligation, subject to modification or discharge by the court's order as changes in the circumstances of the parties might justify. If the plaintiff in error should die before the remarriage of the defendant in error or the attainment of their daughter's majority, the periodic payments of alimony would cease, and they would be deprived of that means of support. Hence as a measure of protection, rather than as security for the payment of alimony, the provision requiring the plaintiff in error to pay the premium on the life insurance policy was incorporated in the decree.

The question arises, Is the plaintiff in error obliged to keep the policy in force after the remarriage of his former wife and the time his daughter reached her majority? The plaintiff in error insists that his duty to support ended when the former married again and the latter became of age, and that the obligation to pay the insurance premium likewise terminated for the same reasons. The defendant in error, on the contrary,...