Umlauf v. Umlauf

• Decision Date: 16 May 1889
• Citation: 21 N.E. 600,128 Ill. 378
• Parties: UMLAUF v. UMLAUF.
• Court: Illinois Supreme Court

128 Ill. 378

21 N.E. 600

UMLAUF

v.UMLAUF.

Supreme Court of Illinois.

May 16, 1889.

Appeal from appellate court, First district.

Edmund S. Holbrook, William T. Arnent, and C C Strawn, for appellant.

Blanke & Chytraus, for appellee.

MAGRUDER, J.

Appellant filed a bill for divorce against appellee in the superior court of Cook county, and obtained a decree against her on April 22, 1887. The decree granted him a divorce on account of her desertion, but gave her the custody of the two children,-one a boy named Arthur, nine years old; and the other, a boy named Oscar, six years and six months old,-and required him to pay her $40 monthly for the support of the two sons, being $20 per month for each, ‘until the further order of the court.’ The decree found that both appellant and appellee were fit and proper persons to have the care, custody, and tuition of the children, but it also found that ‘on account of the tender ages of, and the present physical condition of, the said children, it is for their better welfare that they remain under the custody, care, and tuition of the defendant, their mother, in whose custody they have been for the past six years.’ Appellant took no appeal from this decree, and had never sought to have it reviewed by writ of error. Though favorable to him upon the question of the divorce, it was against him so far as the custody of the children and the payment of money to the appellee for their support were concerned. He submitted to the decree, and made the monthly payments from the date of the rendition of the decree on April 22, 1887, to the first Monday of November, 1887. On October 13, 1887, he filed his petition in the same court, asking for the custody of the children. This petition, on final hearing, was dismissed. It may sometimes be proper to give the mother the custody of the children even where the divorce is granted on account of her own desertion of her husband. Reavis v. Reavis, 1 Scam. 242;Deenis v. Deenis, 79 Ill. 74. The controlling consideration with a court of equity, where both the husband and the wife are equally fit to have the care of the children, is the welfare of the children, and not the qualification of either parent. In such cases the custody is often given to the mother, where the health or tender years of the children require her attention. 2 Bish. Mar. & Div. § 532; Stew. Mar. & Div. § 402; Waring v. Waring, 100 N. Y. 570, 3 N. E. Rep. 289. Under our statute the court may make such order touching ‘the care, custody, and support of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall be fit, reasonable, and just.’ Rev. St. c. 40, § 18. The common-law right of the father to the custody of the infant child will be made to yield to the discretionary power over the subject vested by the statute in the court, (Hewitt v. Long, 76 Ill. 399,) where the best interests of the child demand it. We are not prepared to say that the decree of April, 1887, based upon evidence not now before us, was not right and proper at the time it was rendered. Indeed, the conduct of the defendant for six months thereafter, and the language contained in his petition and in his brief filed in this court, would seem to indicate that he himself considered the decree as authorized by the facts as they then existed.

The eighteenth section of the divorce act provides, however, that ‘the court may on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody, and support of the children, as shall appear reasonable and proper.’ The question, then, arises, whether or not it would have been reasonable and proper to modify or change the terms of the decree, as to the custody of either or both of these boys, when appellant's petition was dismissed in December, 1887. As to the younger boy, we are of the opinion that it was right to allow him to remain with his mother. He was barely seven years of age in December, 1887. In addition to being a delicate boy, he was lame. He is spoken of as being pale, and as having been so for several years. One of the physicians says: ‘In the past I have treated the younger one the most, treated him for typhoid fever, and for malarial fever,-chiefly typhoid,-during the time specified from March to June of last year.’ He had not yet been shown to be strong enough to attend regularly at school. He was entered in one of the public schools in the second week of September, 1887, and left in the following month, attending five weeks altogether. The evidence shows that he has evinced a strong attachment for his mother, and a decided disinclination to go to his father. To have taken him away from his mother, against his will, and in his...