dissenting: I dissent from the decision of the court in this case. The opinion filed, in my judgment, overlooks the broad powers granted equity courts in divorce cases, especially where minor children are involved. The legislature of this State has vested continuing jurisdiction in trial courts over the care, custody and maintenance of minor children of divorced parents, Ill. Rev. Stat. 1941, ch. 40, par. 19 [Jones Ill. Stats. Ann. 109, 186], and it seems clear to me that this jurisdiction, to be complete, must in-elude the power to oversee the application of support money for the benefit of such children.
T am not impressed with the argument that the petition here should be denied because the Divorce Act makes no express provision for an accounting and because the decree of divorce is also silent in this respect. The language of the Divorce Act is broad and much detail is left to the courts for adjudication. For example: while the statute permits, it does not compel an award of support money to minor children, yet the courts of this State have wisely held that even after a decree of divorce making no award of maintenance, the father is liable for the support of his minor children, Panther Creek Mines v. Industrial Commission, 296 Ill. 565, and that sums spent on behalf of such children by their custodian may be recovered on a subsequent petition in the original divorce proceeding. Plaster v. Plaster, 47 Ill. 290. Moreover, although the language of the statute is general, it is the established law of this State that the powerful weapon of contempt proceedings is available for use against any father who wilfully refuses to meet obligations imposed upon him in a decree.
These remedies have been established to insure the care, and nurture of minor children. Similarly, justice would seem to require that such children be protected from the extravagance or dishonesty of their custodian. I do not believe that the majority of this court would deny relief in a case where there was proof that support money paid was being misapplied; but how can such proof be established unless an accounting is made.
These are not contempt proceedings where it is sought to punish respondent for misapplication of funds. In such case, it may well be that charges of dishonesty should be required in the petition and the burden of proof in support thereof placed upon petitioner. Here we are concerned only with the preliminary issue of whether, in fact, the payments of support money are being used for the benefit of petitioner’s children. Because it would be difficult or tedious to keep accounts and render a report should be no defense to this petition; guardians and conservators have been similarly burdened by express statutory provisions. If the power exists to compel an accounting, and I believe it does, the difficulties involved are unimportant. Furthermore, the threat or harassment that might exist if the right to this type of relief is granted is no greater than exists because of the power of courts to enforce payment of support money by contempt proceedings.
While it is true that no decision has been found allowing a relief of this type, it is important to note also that no authority denying it has been cited. Moreover petitioner has cited cases from another jurisdiction where the fiduciary relationship between custodians and minor children under their control has been recognized. Stonehill v. Stonehill, 146 Ind. 445, 45 N.E. 600; Hutchison v. Wood, 59 Ind. App. 537, 109 N.E. 794. I concur with the statements made in these cases and believe further that once it is held that a custodian receives payments of support money as trustee for his wards, the duty to account for it follows as a matter of course.
I therefore believe that the judgment of the circuit court of McLean county should have been reversed and the cause remanded to that court for further proceedings.