Walters v. Walters

• Decision Date: 09 October 1950
• Docket Number: Gen. No. 44859
• Citation: 94 N.E.2d 726,341 Ill.App. 561
• Parties: WALTERS v. WALTERS.
• Court: United States Appellate Court of Illinois

Page 726

94 N.E.2d 726

341 Ill.App. 561

WALTERS v. WALTERS.

Gen. No. 44859.

Appellate Court of Illinois, First District, First Division.

Oct. 9, 1950.

Cantwell & Cantwell, Chicago, Robert E. Cantwell, Jr., L. Yager Cantwell, Chicago, of counsel, for appellant.

Poppenhusen, Johnston, Thompson & Raymond, Chicago, Albert K. Orschel, Samuel W. Block and Addis E. Hull, all of Chicago, of counsel, for appellee.

TUOHY, Justice.

Plaintiff, divorced wife of defendant, appeals from an order of the Superior Court of Cook County terminating installment payments of money, payable under a divorce decree, after and because of the divorced wife's remarriage, and from an order dissolving a rule on defendant to show cause why he should not be held in contempt for failure to make certain installment payments. The matter comes here on the pleadings.

Plaintiff on June 14, 1946, after a number of preliminary motions, filed her amended complaint for divorce charging extreme and repeated cruelty. On the same day, an answer was filed denying the acts of cruelty, the cause was heard as an uncontested matter, and decree entered. The property settlement agreement of the parties, made part of the decree, in material portions is as follows:

'1. As a lump sum property settlement and alimony in gross, in full of her right, title and interest of every kind, nature, character and description whatsoever, in and to the property, income or estate which the Husband now owns or may hereafter acquire.

'(a) The Husband shall pay to the Wife the sum of Thirty-four Thousand Five Hundred Forty Dollars ($34,540.00), payable in periodic payments during a period ending more than ten years, as follows:

'Twenty-five Hundred Dollars ($2500.00) in cash on the date of the entry of the contemplated decree for divorce hereinafter mentioned; and

'Two Hundred Sixty-seven Dollars ($267.00) per month for a period of one hundred twenty (120) months, first payment to be made on August 1, 1946.

'(b) In the event of the death of the Husband prior to the completion of the payments set forth in sub-paragraph (a) above, any unpaid balance thereof, shall be a charge against his estate.

'(c) The Husband shall by his Will provide as follows: To bequeath to the Wife the sum of Ten Thousand Dollars ($10,000.00) to be paid to her upon his death in the event she survives him and has not remarried; in the event the Wife has predeceased him or has remarried, such sum shall be paid to the son of the parties, Carl Clark Walters; and in the event the Wife has remarried and their said son has predeceased the Husband, such legacy shall be cancelled.

* * *

* * *

'4. Each of the parties hereto does hereby (to the fullest extent that he or she may lawfully so do without voiding this contract) forever relinquish, release, waive and quitclaim to each other all rights of dower and homestead and all real or personal property rights and claims which he or she now has or may hereafter have, as husband, wife, widower, widow, or otherwise, by reason of the marital relations existing between the parties hereto under any present or future law of any state and of the United States of America or of any other country, against the property of the other party, or his or her estate, whether now owned or hereafter acquired by the other party.'

Provision is made that each party should retain the furniture in his or her possession and that the wife's attorney's fees in the sum of $2,000 be paid by the husband.

The decretal portion provides in part:

'2. That the agreement between the plaintiff, Ola Stauffer Walters, and the defendant, Edward H. Walters, dated the 10th day of June, 1946, and hereinabove set forth in full, be and the same is made a part of this decree for divorce; and that all of the provisions of said agreement be and the same are expressly ratified, confirmed, approved, and adopted as the orders of this Court to the same extent and with the same force and effect as if said provisions were in this paragraph set forth verbatim as the decree of this Court.

'3. That all the right, title, claim and interest of each party in and to the property of the other party, real, personal or mixed, that he or she now owns or may hereafter acquire, by way of dower, homestead, jointure or otherwise, except the rights granted to each of them by the terms of the agreement of June 10, 1946, hereinabove set forth in full, be and the same are forever barred, terminated, ended, and released.'

On October 27, 1947, plaintiff filed a petition charging the defendant with being in arrears under the terms of the decree in the sum of $801, being payments due on August 1st, September 1st and October 1st, 1947, in the amount of $267 each. Petitioner asked for attorney's fees for services in connection with preparing and prosecuting the petition. Defendant answered, setting out that on July 2, 1947, plaintiff married one John T. Wheeler, by reason of which fact her right to periodic payments of alimony ceased. Defendant prayed (a) that the court dissolve its rule on defendant to show cause why the defendant should not be held in contempt of court, and (b) that the petitioner's prayer for a reasonable sum as and for her attorney's fees be denied.

On November 6th a petition for modification of the divorce decree was filed by defendant, praying cancellation, as of the date of the filing of the petition, of the periodic allowances of alimony which would accrue in the future by the terms of the decree and relieving defendant from the obligation of making further payments to plaintiff. Plaintiff filed a motion to dismiss this petition. Subsequently the court denied plaintiff leave to file certain additional pleadings which we deem unnecessary to consider here. On December 6, 1948, the court entered the order appealed from, finding in part material here that the payments provided for in the decree were 'periodic alimony' to which plaintiff ceased to be entitled after and by virtue of her remarriage. The decree was ordered modified by relieving the defendant of the requirement to pay alimony installments due after her remarriage; plaintiff's petition for a rule to show cause why defendant should not be held in contempt for failure to pay the monthly installments which became due after plaintiff's remarriage and plaintiff's prayer for attorney's fees were denied.

The primary question raised by this appeal is whether the amount required to be paid 'as a lump sum property settlement and alimony in gross' became a vested property right of plaintiff upon the entry of the decree. Whether or not it did so become necessitates an examination into the provisions of the decree to determine whether the provision was in fact a lump sum property settlement payable partially in installments or whether it was merely a provision for the payment of periodic alimony. If it was a lump sum settlement, then it is not modifiable; but if it was periodic alimony, then it is modifiable, and under section 18 of the Divorce Act plaintiff's right to payment of the installments accruing after remarriage is extinguished.

Section 18, paragraph 19, chapter 40, Illinois Revised Statutes, in force at the time this decree was entered, provided as follows:

'When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife or husband, 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; * * * and provided further that a party shall not be entitled to alimony and maintenance after remarriage. * * *'

The provision 'that a party shall not be entitled to alimony and maintenance after remarriage' was enacted by amendment in 1933. The statute was further amended on July 27, 1949, to provide that, regardless of the remarriage, any party to whom installment payments as settlement in lieu of alimony have been ordered paid, shall be entitled to receive any unpaid installments. However, in view of the conclusions arrived at, this 1949 amendment is not here considered. For that matter, the 1933 amendment to section 18, which provided that a party shall not be entitled to alimony and maintenance after remarriage, brought about no change in the basic law of this State, but was merely declaratory of that law as it had long existed, as will be shown hereinafter.

'Alimony' has been defined as an allowance in a decree of divorce carved out of the estate of the husband for the support of the wife. Adler v. Adler, 373 Ill. 361, 369, 26 N.E.2d 504; Herrick v. Herrick, 319 Ill. 146, 149 N.E. 820; Barclay v. Barclay, 184 Ill. 375, 56 N.E. 636, 51 L.R.A. 351. These and many other Illinois cases hereafter considered indicate that the term 'alimony' bears certain distinguishing characteristics. It is for an indefinite period of time and usually for an indefinite total sum. It is based upon the husband's income and the needs of the wife determined from the standpoint of the manner in which they have been accustomed to live. It is modifiable after decree when the wife's needs increase or decrease, or when the husband's ability to pay increases or decreases. This is so because it takes the form of periodic allowances which do not vest until they become due. It usually terminates upon the death of the husband, although by agreement payments may be made a charge upon the husband's estate after they become due. They are never a charge on a husband's estate in advance of the due date because they are not, prior to that time, vested. Payments of alimony from husband to wife are not based upon any consideration moving from wife to husband, but are based upon the common law duty of the husband to support his wife. 'Alimony' in this sense of the word, is modifiable.

On the other hand, the phrase 'alimony in gross' or 'gross alimony' is always for a definite amount of money; the payment is always for a definite...