Stillman v. Stillman

• Citation: 39 Am.Rep. 21,1881 WL 10537,99 Ill. 196
• Parties: CHARLES P. STILLMANv.FANNIE H. STILLMAN.
• Decision Date: 14 May 1881
• Court: Supreme Court of Illinois

99 Ill. 196

1881 WL 10537 (Ill.)

39 Am.Rep. 21

CHARLES P. STILLMAN

v.FANNIE H. STILLMAN.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

Mr. A. T. GALT, for the appellant:

If a divorced wife marries again, she voluntarily furnishes ground for absolving her former husband from paying her alimony, or at least for its reduction. Citing Albee v. Wyman, 10 Gray, 222; Bowman v. Worthington, 24 Ark. 522; Fisher v. Fisher, 2 Swab. & T. 410; Sidney v. Sidney, 4 Id. 178; Bankston v. Bankston, 27 Miss. (5 Cush.) 692; 2 Bish. on Mar. & Div. (5th ed.) 479.

The court erred in not making the reduction in the alimony take effect from the marriage of appellee, and also in allowing her a solicitor's fee.

Mr. JOSEPH WRIGHT, for the appellee, after noticing the authorities cited by appellant, referred to the following cases as opposing the reduction of alimony for the wife's subsequent marriage: Forrest v. Forrest, 3 Bosw. 661; Shephard v. Shephard, 3 N. Y. Sup. Ct. Rep. 715; 1 Hun, 240.

As to allowing the divorced wife a solicitor's fee, see Helden v. Helden, 9 Wis. 557; same v. same, 11 Id. 558; Jenkins v. Jenkins, 91 Ill. 167. Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the 9th day of July, 1877, Fannie H. Stillman obtained a divorce from her husband, Charles P. Stillman, on bill filed in the circuit court of Cook county, where the parties resided. The decree rendered made it obligatory on defendant to pay complainant $60 per month as alimony. That sum was regularly paid to complainant up to the 1st day of February, 1880. On the 14th day of January, 1880, complainant married Frank Eldridge, with whom she has ever since lived as his wife. At the March term, 1880, of the circuit court in which the divorce proceedings were had, defendant appeared and entered a motion to amend the decree so as to exempt him from further payment of alimony, or to decrease the amount fixed by the decree. An affidavit of defendant sets forth, as the grounds of the motion: first, a material decrease in the amount of his income since the rendering of the decree, and financial embarrassment occasioned by incumbrances upon his property; and, second, the subsequent marriage of complainant. Complainant resisted the motion, and filed her own affidavit, in which she stated, first, facts tending to show the financial ability of defendant to continue to pay the alimony awarded her by the original decree, and, second, that the income of her present husband, after discharging other obligations resting upon him, is insufficient to afford her an adequate support. On the hearing of the motion the court made an order modifying the original decree in such manner as to absolve defendant from further payment of the alimony ordered by the original decree, and in lieu thereof it was decreed defendant, from that date, should pay complainant one dollar annually, to be paid at the end of each year. A counsel fee was allowed complainant to resist the motion to reduce her alimony.

An appeal was taken by complainant from that decree to the Appellate Court for the First District. The errors assigned call in question the correctness of the judgment of the circuit court in amending the original decree in respect to the alimony allowed, and in reducing it to a nominal sum. Crosserrors were assigned: first, as to the allowance of a solicitor's fee to the party resisting the motion, and, second, in not making such decree retroactive, so as to suspend the payment of alimony after the 1st day of February, 1880, on account of the previous marriage of complainant. The Appellate Court reversed so much of the order of the circuit court as absolved defendant thereafter from paying alimony as required by the original decree, and giving complainant in lieu thereof one dollar a year, but in other respects affirmed the order or decree of the circuit court. An appeal was granted to defendant on a single question, viz: whether the subsequent marriage of complainant, ipso facto, entitled defendant to have the alimony provided in the original decree reduced to a nominal sum, complainant's husband being unable to provide her with a suitable support, and defendant being able to pay the amount fixed in the original decree--the court being of opinion such question is involved in this case, and is of such importance on account of principal and collateral interest, that it should be passed upon by the Supreme Court.

The Appellate Court, by its judgment, assumed to find certain facts: first, that defendant is the owner of a large estate derived from his father, who is deceased, and has means out of which he might comply with the original decree as to alimony; and, second, that since the rendering of the original decree, complainant, on January 14, 1880, married a man by the name of Eldridge, who works upon a salary of $75 per month, out of which he has to support an aged mother, and that he is unable to support complainant. It will be observed this is not a case where the finding of facts by the Appellate Court, although embodied in and made a part of its judgment, is conclusive on the Supreme Court. The Practice act has not so provided. In all chancery cases this court may look into the record and ascertain what facts are established by the evidence. The rule as to the practice in such cases has been settled by repeated decisions of this court.

On looking into the record it is seen the testimony concerning disputed facts is contained in ex parte affidavits--a most unsatisfactory mode of eliciting the truth as to any question of fact. It is shown, defendant's income is now much less than when the alimony was fixed by the original decree, and that his property is so heavily incumbered as to cause great financial embarrassment. It is admitted the income of complainant's husband is $75 per month, but it is not proven that sum is not sufficient to enable him to afford her a suitable support, considering the social position she occupies. It certainly can not be declared, as a fact generally known, that it is not. It may, therefore, be assumed, for the purposes of the decision of the question involved, as the same is certified to this court, that defendant is able to pay the alimony provided in the original decree, and that complainant's husband is able to afford her a reasonable support, every way suitable and corresponding with the position the parties occupy in social life.

The question presented has not before arisen in this State, and the court is left free to determine it as one of first impression, by the aid of such discussion as may have been given to it by other courts whose judgments are entitled to respect. The jurisdiction of the court to grant the relief sought is expressly conferred by statute, which provides, the court in which any divorce is decreed may make such order touching 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 may on application, from time to time, make such alterations in the allowance of alimony and maintenance as shall appear reasonable and proper. Although our statute vests courts granting divorces with...