Stillman v. Stillman
| Decision Date | 31 October 1880 |
| Citation | 7 Ill.App. 524,7 Bradw. 524 |
| Parties | FANNIE H. STILLMANv.CHARLES P. STILLMAN. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding. Opinion filed December 13, 1880.
Upon a bill in chancery theretofore brought in the Circuit Court of Cook county, by Fannie H. Stillman against her husband, Charles P. Stillman, for a divorce on the ground of adultery committed by him since their marriage, and upon a hearing on bill, answer and testimony, a decree was rendered in her favor July 9, 1877, finding the defendant guilty of adultery as charged in the bill, dissolving the marriage, and adjudging and decreeing that defendant should pay complainant, as alimony, the sum of sixty dollars per month, payable at the end of each and every month, and dating from May 1, 1877.
The defendant made said payments down to February 1, 1880; but January 14, 1880, the complainant intermarried with one Frank Eldridge, residing at Baraboo, in the State of Wisconsin; immediately after which the defendant began preparations for the purpose, and having caused complainant to be served February 25th, 1880, with copies of affidavits and notice that he would, on the first day of the next succeeding March, apply to said court for such modification of said decree as would relieve him from the payment of any more of said alimony, entered such motion, which came on to be heard March 30th, 1880, upon affidavits filed by the respective parties, and thereupon complainant's solicitor made application to the court that defendant be required to furnish reasonable counsel fees for complainant's solicitor in opposing said motion, which the court reserved until the final disposition of said matter.
By undisputed testimony, it appeared that since said decree the said defendant had married a prostitute whom he had kept for some three years prior to said decree, and who had three children. It appeared by the clear weight and preponderance of the evidence produced that defendant's ability to pay said alimony was ample, except so far as it had been impaired by an improvident and dissolute course of life; that his father, who died in 1870, left him a large estate. It also appeared by uncontradicted testimony that the person whom the complainant had married was employed as a telegraph operator at a salary of seventy-five dollars a month as his only income, out of which he had to support an aged mother, and was, in fact, unable to support complainant. The court below, upon the sole ground that complainant had married again since said decree of divorce, without specially finding any other fact, in its order changed said decree, so that complainant should receive one dollar per year, in lieu of the said sixty dollars per month as alimony; but required defendant to pay complainant, as solicitor's fee, one hundred dollars in twenty days. The complainant caused the whole testimony and rulings of the court to be preserved by a certificate of evidence, and brought the case to this court on error, assigning for error the modification of said decree as to alimony, and the defendant assigns for cross-error the allowance of counsel fee as aforesaid.
Mr. JOSEPH H. WRIGHT, for appellant; that the reduction of the husband's estate by gifts will not be allowed to diminish the alimony, cited Forest v. Forest, 5 Bosw. 672.
A decree for alimony will not be disturbed if the record does not show amount of husband's estate: Ifert v. Ifert, 29 Ind. 473; Shirley v. Wardrop, 1 Swab. & T. 317; 2 Bishop's Marriage and Divorce, 495.
The husband must show that the allowance is no longer proportionate or just: 2 Bishop's Marriage and Divorce, 430; Wilde v. Wilde, 36 Iowa, 319; Fisher v. Fisher, 32 Iowa, 20; Shirley v. Wardrop, 1 Swab. & T. 317; Thornberry v. Thornberry, 4 Litt. 257.
If the husband has no property, alimony may be based on his earnings, or ability to earn: 2 Bishop's Marriage and Divorce, 395; Bailey v. Bailey, 21 Gratt. 43; Kerby v. Kerby, 1 Paige, 261.
Generally, as to when alimony will be allowed, and its amount: 2 Bishop's Marriage and Divorce, 446; Burr v. Burr, 7 Hill, 207; Thornberry v. Thornberry, 4 Litt. 252; Pickford v. Pickford, 1 Paige's Ch. 274; Fisher v. Fisher, 2 Litt. 337; Miller v. Miller, 6 Johns. Ch. 91; Bergen v. Bergen, 22 Ill. 187; Stewartson v. Stewartson, 15 Ill. 145; Wheeler v. Wheeler, 18 Ill. 39; Joliffe v. Joliffe, 32 Ill. 527; Armstrong v. Armstrong, 35 Ill. 109; Bursler v. Bursler, 5 Pick. 427; Clark v. Lott, 11 Ill. 105; Barber v. Barber, 16 Cal. 378; The People v. Hovey, 5 Barb. 120; Foote v. Foote, 22 Ill. 425; Dinet v. Eigenmann, 80 Ill. 274; Saunders v. Saunders, 1 Swab. & T. 72.
Remarriage is no ground for relief from payment of alimony: 2 Bishop's Marriage and Divorce, 478; Miller v. Clark, 23 Ind. 370; Shepherd v. Shepherd, 3 N. Y. Sup. Ct. 715.
Mr. A. T. GALT, for appellee; that a subsequent marriage releases the former husband from payment of alimony, cited Albee v. Wyman, 10 Gray, 222; Bowman v. Worthington, 24 Ark. 522; Fisher v. Fisher, 2 Swab. & T. 410; Sidney v. Sidney, 4 Swab. & T. 178; Bankston v. Bankston, 27 Miss. 5.
Where the reason for a rule requiring a defendant to pay solicitor's fees to enable a wife to prosecute a divorce, fails, the rule no longer exists: Newman v. Newman, 69 Ill. 167.
The wife, complainant below, the plaintiff in error here, obtained, July 9, 1877, a regular decree by a court of competent jurisdiction, dissolving the marriage between her and her husband, the defendant, for adultery committed by him during their marriage relation. That decree fixed also the amount of alimony which such defendant was to provide for her after such separation, at sixty dollars per month for each and every month, to be payable at the end of each month, and dating from May 1, 1877. This the defendant paid down to and including the month of January, 1880. But on the fourteenth of the last named month, the plaintiff married another man. Although the defendant had himself, before that time and since the decree, married, as the uncontradicted evidence shows, a prostitute with three children, whom he had kept and supported for some three years next before the decree, yet upon plaintiff becoming married, he set about preparing to get relieved from paying her any more alimony under said decree; and on March 30th, 1880, his application to the court in which the decree was rendered, was made upon affidavits, and by her, in like manner, opposed. The court below, without specifically finding any new fact bearing upon the question, except merely that she had married again since the decree, so amended the same as to relieve the defendant from such alimony, by providing that he should pay plaintiff as alimony one dollar per year in lieu of that of sixty dollars per month, as aforesaid. The defendant's ability to pay the alimony as originally provided, except as it may have been impaired by dissolute and improvident habits, is beyond doubt. He has a large estate, which with proper management and conduct on his part, would yield him an ample income. The court below did not specially find any want of ability. His delictum is as above stated, and without a single mitigating circumstance. She is blameless, unless the fact that she married nearly three years after the decree a man who earns his living by his own labor, and out of his earnings has to support an aged mother, shall be regarded as a fault on her part; for it affirmatively appeared by uncontradicted testimony, that such second husband's only income is his wages as telegraph operator, at the rate of seventy-five dollars per month, out of which he has to support an aged mother, and that he is therefore unable to support plaintiff. It seems to us, therefore, that the question to be decided resolves itself simply into this: is the mere fact that plaintiff, two years and a half after the decree of divorce, married again, but to a man unable to support her, sufficient to justify a court of equity, acting upon the principles of natural justice, to thus interfere in favor of a party so culpable, and against one otherwise so entirely blameless?
Before proceeding to discuss this question, it will be well to ascertain the principles which control in the exercise of the power given by statute to subsequently make alterations in a decree respecting alimony. The statute provides that 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 in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, and may enforce the payment of the same in any other manner consistent with the rules and practice of the court. And the court may on application, from time to time, make such alterations in the allowance of alimony and maintenance as shall appear reasonable and proper.
Under this last provision, we do not understand that the court, after the decree is passed and the term is closed, has any power to review such original decree as to alimony, and alter it, merely on the ground that it was not a proper one at the time it was made; but the power so given should be construed as authorizing such alteration only when it is necessary to meet new facts, transpiring after the decree. Perkins v. Perkins, 12 Mich. 456.
The conclusion would seem to logically follow, that in making such alterations to meet new facts, transpiring subsequently to the decree the court, should be governed by substantially the same rules and guides as in fixing the amount and manner of payment in the first instance. Now, alimony, as applied to the marital relation, has been defined by our Supreme Court to be that maintenance or support which the husband on separation is bound to provide...
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