Smith v. Johnson
| Decision Date | 23 April 1926 |
| Docket Number | No. 17070.,17070. |
| Parties | SMITH v. JOHNSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Pauline M. Smith against Bruce D. Smith. An order dismissing defendant's supplemental petition and cross-bill, naming plaintiff, now Pauline M. Johnson, and others, as defendants, was affirmed by Appellate Court (236 Ill. App. 339), and defendant appeals.
Affirmed.
Appeal from Second Branch Appellate Court, First District, on Error to Circuit Court, Cook County; Jesse Holdom, Judge.
Sims, Welch, Godman & Stransky, of Chicago (F. J. Stransky, of Chicago, of counsel), for appellant.
Scott, Bancroft, Martin & MacLeish and Wilson, McIlvaine, Hale & Templeton, all of Chicago (Frank H. Scott, John E. MacLeish, William B. McIlvaine, and Cranston C. Spray, all of Chicago, of counsel), for appellees.
The appellee Pauline M. Smith (now Johnson) filed a bill for divorce in the circuit court of Cook county against the appellant on the ground of habitual drunkenness and desertion. The bill prayed for dissolution of the marriage, for custody of the three minor children, and for alimony. The appellant entered his appearance, and filed an answer denying the charges of the bill. On June 3, 1920, the court, on hearing, sustained the charges of the bill, and entered a decree for divorce, granting custody of the children to the complainant, and reserving the question of alimony for the further order of the court. On the next day the court entered a supplemental decree as follows:
‘This day came again the said complainant by her solicitors and the said defendant by his solicitor, and, it appearing to the court that full provision has been made out of court by the defendant to the complainant for the support of herself and her said children, and all question of the payment of alimony by the defendant to complainant has been fully settled by and between the parties hereto, and the court being fully advised in the premises, it is therefore ordered, adjudged, and decreed that all alimony to be paid by the defendant to the complainant for the support of herself and the said children has been fully paid and satisfied, and that the said final decree entered herein on the 3d day of June, 1920, in so far as the same reserved, subject to the further order of this court, the sum or amount of alimony to be paid by the defendant to the complainant for the support of herself and the said children, be and the same hereby is fully satisfied and discharged.’
In April, 1922, the appellant filed what he characterizes as a supplemental petition and cross-bill, naming as defendants thereto his former wife, Pauline, their three children, and his three brothers and himself as trustees under a trust agreement dated June 3, 1920. The appellant's three brothers, individually and as trustees, and his wife (now Pauline M. Johnson), filed a motion to strike the supplemental petition and cross-bill from the files on the ground that the court was without jurisdiction to pass upon the matter set out therein or to grant the relief prayed, and for the further reason that the supplemental petition and cross-bill had been filed without leave of court. On this motion the petition was stricken from the files; the court expressly holding that it had no jurisdiction to consider and pass upon the socalled supplemental petition and cross-bill.
The petition sets out that by protracted negotiations with the appellant's brothers, and through connivance on their part to deprive him of dominion and control over his property, and to gain control thereof for themselves, and by the conspiracy of his brothers with his wife to defraud him out of his property, he was induced to convey his property to his brothers, Solomon A., Walter B., and Harold, and himself, as trustees, under the guise and pretense of making provision for the support and maintenance of his wife and their children, but, in fact, for the purpose of depriving the appellant of the control of his property. The petition avers that the trust agreement was entered into only as the result of persuasions, importunities, threats, and duress, and without any consideration whatever, and in contemplation of the divorce thereafter procured by his wife. The petition alleges that, if the trust agreement had any validity whatever, it was solely as a provision for the support and maintenance of his wife and children, and as such constituted part of the decree for divorce theretofore entered on June 3, 1920, and that it is subject to the control and modification of the court from time to time, as provided in section 18 of the Divorce Act (Smith-Hurd Rev. St. 1925, c. 40, § 19). The petition avers that the trust agreement is illegal, inequitable, unconscionable, and void; that since its execution Pauline M. Smith has married H. Lindsley Johnson, who is able to support and maintain her without assistance from the petitioner, and that by reason of such marriage the petitioner's liability to support her has ceased. It also sets out that the petitioner has married Florence Mann, and that they were residing together as husband and wife, It also averred that, through improper and improvident management of the trust estate created by the trust agreement, the income from the trust estate, which should afford support also for the petitioner, has become impaired and diminished so that there is barely enough to meet the payments to Pauline M. Johnson for her benefit and that of the children.
The trust agreement referred to in the petition provides, among other things, for the payment to Pauline M. Smith of a minimum sum of $15,000 per annum for the support and maintenance of herself and the children. The property transferred consists of real and personal property; the latter being certain stocks. At the time of the execution of the trust agreement an agreement was entered into between Pauline and the appellant by which, in consideration of such trust agreement, Pauline acknowledged complete satisfactionof any and all claims and demands which she might have against the appellant for alimony or otherwise, and released any and all right, title, or interest, including dower and homestead, in and to any and all of his property of which he was then seized. or of which he might thereafter become seized. By the terms of the trust agreement the trustees were to manage the estate, and first pay to the wife the sum of $15,000 per year, and thereafter to pay to the appellant a like sum, with a provision for the division of the remainder of the income, if there be such. Provision was also made for changes in the manner of payment on the arrival of the children at their majority or the marriage of their mother. It also provided that the appellant might, with the consent of the other trustees, Pauline, and such of the children as had become of age, revoke or change the agreement.
The petition prays that the agreement may be set aside as inequitable and without consideration. It also contains a prayer for alternative relief, asking that, if it be not set aside, it be modified in such a way as to make provision for the support and care of the children only, and that the appellant's brothers be removed as trustees and new trustees appointed in their stead.
The appellant appealed to this court from the decree striking his petition from the files. The cause was transferred to the Appellate Court, which affirmed the decree of the circuit court, and granted a certificate of importance, and the cause comes here for review.
While counsel on both sides have filed elaborate briefs, and have touched upon many questions not directly involved in this lawsuit, the propositions of law involved are few and comparatively simple. As the circuit court dismissed the petition for want of jurisdiction, it in no wise attempted to pass upon the merits thereof. The only question in the case for our consideration, therefore, is as to the jurisdiction of the court to hear the petition on its merits.
It will be seen from a reading of the supplemental decree entered by the circuit court that no order for alimony was entered. But the appellant argues that, notwithstanding this condition of the record, the court has jurisdiction, under section 18 of the Divorce Act, to consider the trust agreement and to modify it, though it is not referred to in the decree, and is not made expressly a part thereof. Section 18 of the Divorce Act, so far as it is material here, provides:
‘When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife * * * as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; * * * and the court may, on application,...
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