Banck v. Banck

Mr. -Presiding Justice Dadt

Dissenting : I do not agree with the majority opinion.

In the present case the parties were married in 1912 ' and lived together until 1940. Two. children were born of the marriage, aged respectively 28 and 26 years at the time of the decree. Apparently the husband had accumulated and had considerable property. The decree found that the wife was not employed and was ‘ ‘ devoid of any financial means wherewith to provide support for herself,” but that the husband was gainfully employed and received from such employment $600 per month. While the record is silent as to whether the wife contributed any moneys, I believe it is a reasonable presumption that she looked after the household duties including the care of the children, thereby better enabling the husband to accumulate such property. In this situation the wife obtained a decree of divorce which adjudicated the husband guilty of desertion. The record is silent as to the value of the property owned or retained by the husband, and does not show the value of the home conveyed to the wife.

Under the terms of the property settlement agreement, made by the parties and approved by the decree, the wife was to receive a deed to the dwelling occupied «by her, freed from an existing mortgage; the husband agreed to pay her the sum of $4,500 as “gross alimony,” $500 upon the rendition of the decree and the balance in monthly instalments of $100 each; and the wife was to convey to the husband all of her right and interest in and to all of the remainder of the real estate owned by the husband; and the decree provided that all property then owned by the parties should be owned by them respectively “free and clear of all claims and demands of the other whatsoever including dower, homestead, widow’s award or alimony. . . ."

It is conceded that the decree was a consent decree so far as the question of the settlement of property rights was concerned.

Apparently all of the decree has been executed in full except as to the provision for the $4,500 payment to the plaintiff, on which the sum of $2,100 had been paid at the time of the filing of the petition.

The first and principal question is whether the proviso added to section 18 of the Divorce Act by the 1933 amendment which provided “that a party shall not be entitled to alimony and maintenance after remarriage,” properly applies to the portion of this decree providing for the payment by the husband of the sum of $4,500 to the wife as gross alimony. The entire case of the appellee depends upon what construction is to be given to the words contained in such proviso, and particularly on what meaning is to be given to the word “alimony” as so used. If by such use of the word “alimony” the legislature did not mean or refer to alimony in gross, but merely meant a periodic allowance made to a woman on a decree of divorce for her support out of the estate of her husband, then in my opinion the husband has no standing in court in this proceeding, and the judgment of the trial court should be reversed.

Alimony has been defined to be “that allowance which is made to a woman on a decree of divorce for her support out of the estate of her husband.” (Stillman v. Stillman, 99 Ill. 196, 201; Adler v. Adler, 373 Ill. 361.) Alimony is an allowance out of her husband’s estate made for the support of a woman legally separated from him. (Webster’s Dictionary.) It generally takes the form of periodic payments which continue until some change in circumstances makes future support unnecessary. Where alimony takes the form of periodic payments only, the remarriage of the party entitled to such payment, even prior to the 1933 amendment to section 18 of the Divorce Act, was generally considered a sufficient reason to relieve the other party from continuing further payments. (Stillman v. Stillman, supra). The amendment simply embodied the practice as it theretofore existed. (Adler v. Adler, supra.) Alimony is not founded on a contract express or implied, but on the natural and legal duty of the husband to support the wife. (Audubon v. Shufeldt, 181 U. S. 575; Tuttle v. Gunderson, 254 Ill. App. 552.)

Applying to the decree in question the foregoing definitions and rules of law concerning alimony, it is my opinion that the allowance of “$4,500 as gross alimony” was not in fact alimony as defined by our courts of review or as meant by the legislature in such proviso in section 18 of the Divorce Act, for the reason that the decree as to so-called alimony did not provide for a mere allowance for the support of the wife, and for the reason that, although the contract was merged in the decree, yet the provisions of the decree as to alimony were in fact founded on the contract, and for the further reason that on the record as presented in this case the trial court, in the absence of the contract, could not properly have made a decree giving the wife either such lump sum in money or tlie dwelling house in fee. (See Bissett v. Bissett, 375 Ill. 551.) If such provision were for mere alimony as so defined and used, that is merely for the support of the wife, then why did the court order him to convey to her the house and to pay her $4,500 regardless of whether she might survive him and regardless of how long she might live ?

All of these considerations indicate that the provision for the $4,500 payment was not a mere alimony provision to provide for the future support of the wife by means of periodic payments, but that such provision was an integral and inseparable part of a property settlement under which the husband among other things irrevocably bound himself to pay his wife the sum of $4,500.

The majority opinion refers to the provision for the $4,500 payment to the wife as “ ‘alimony to maintain herself’ according to the husband’s station in life.” As a matter of fact the decree clearly refers to the gross alimony in question as being an integral part of a property settlement. The language of the decree is plain and unambiguous, and of course the words used therein must therefore speak for themselves, regardless of any undisclosed intention of the litigants or of the chancellor who adopted and approved the words chosen by the litigants. (See Ford v. Witwer, 383 Ill. 511, 515.)

From my examination of the authorities it appears to me to be the settled law of this State that where a decree incorporates a property settlement agreement which, as a part thereof, provides for the payment of alimony in a definite gross or lump sum, such decree is final and not subject to modification under section 18 of the Divorce Act.

One of the earliest cases announcing this principle is Plaster v. Plaster, 47 Ill. 290 (1868) in which the trial court found “that the defendant was at that.time worth one thousand dollars, one-fourth of which was decreed ‘to the wife’ as her absolute property, and as alimony.” Several years later the wife filed a petition asking that she be allowed additional money for the support of her child and for further alimony. The former husband filed a demurrer which was sustained and the petition was dismissed. On the question of further alimony for the support of the former wife the court said: “As to the question of further alimony, we are aware of no principle of law which would authorize it. At the time the divorce was granted, plaintiff in error received one-fourth of the value of the entire property of her husband, as her sole and separate property, as her alimony. The division was liberal, and being in gross, it must be held to be in full of all claims of alimony. Had it been a yearly sum then the alteration of the circumstances of the parties might, in many cases, be such as would require its reduction or increase in amount. But, where a gross sum is decreed and received for, or in lieu of, alimony, it must be held to be in full discharge and satisfaction for all claim for future support of the wife. When they are divorced, they, from that time forward, cease to have claims on each other, and all marital rights and duties are at an end. Having discharged the duty of her support, by paying to his former wife the gross sum decreed in lieu of alimony, she ceased to have any more claim on her former husband for her support, than she has on any other man in the community. The decree fully terminated the relation, and with it, its rights, duties and obligations.”

In Buck v. Buck, 60 Ill. 241, a consent decree awarded the wife, among other things, $12,000 as gross alimony. The husband appealed and the Supreme Court said: “It sufficiently appears from the recitals in the decree, that the whole question of alimony was fixed and settled by the agreement of the parties, . . . Having consented to these provisions of the decree, the plaintiff in error can have no relief against the force of his own voluntary agreement. Whether the alimony is too high, . . . it is not now necessary for us to express an opinion. It was competent for the plaintiff in error to consent to such a decree and having done so, it must remain forever binding on him.”

In Maginnis v. Maginnis, 323 Ill. 113, the court said: “Where the decree of divorce awards a sum in gross for or in lieu of alimony the decree will be regarded as final, and the gross sum, when paid, will operate as a discharge and satisfaction of all claim for future support by the wife, . . . but where the provision for alimony in the decree takes the form of a periodic allowance, section 18 of the Divorce Act . . . provides that 'the court may, . . . make such alterations in the allowance of alimony and maintenance, ... as shall appear reasonable and proper.'”

In Smith v. Smith, 334 Ill. 370, under the terms of a consent decree adjusting the property rights of the parties, it was provided that the husband on the entry of the decree was to pay the wife the sum of $3,000 in cash, to sign over to her a first mortgage for $6,500, and also to pay her the sum of $250 per month so long as she lived and remained unmarried. Four years later the wife filed a petition for modification of the decree, alleging among other things that she had been fraudulently induced to accept a smaller sum of alimony per month than she would have otherwise accepted. After a hearing the trial court entered a decree increasing the monthly payments from $250 to $400 per month. On appeal the Supreme Court said: “The decree for support and maintenance was a consent decree, and as such must be regarded as a contract between the parties to the suit. . . .

While husband and wife may not enter into an agreement for divorce, yet the amount of alimony the husband shall pay to the wife, the terms of the payment and the length of time payment is to be made may be arranged between them by consent. When they agree upon alimony the court will embody the agreement in its decree, and it will thereafter conclude the parties. . . . The consent decree did not affect the question of divorce, which is beyond the power of the parties to adjust by agreement or collusion. As a contract it is binding on the parties unless induced by fraud. If so, it must, like any other contract, be attacked by some method recognized by courts of equity for re-, lief from fraud. ... It is presumed, and from the negotiations it is clear, the defendant would not have parted with the items composing the settlement if as compensation he was not assured that the gross payment and the trust agreement were in full settlement of all claims on her part for alimony. The parties did not rely upon the equity powers of the court for the adjustment of their marital rights so far as property was concerned. They did what they had a legal right to do — adjusted those rights by mutual agreement. Like any other agreement upon full consideration, the parties are concluded hy it in the absence of fraud, and that question is not open for consideration in this proceeding.”

The only distinction I can perceive between the case before us and the foregoing cases is that the husband in this case was permitted, by the terms of the agreement and decree, to pay the gross or lump sum settlement in convenient instalments. This presents the question whether the otherwise final nature of the decree was changed by reason of the fact that the gross alimony awarded to the wife was made payable in instalments.

This precise question was passed upon in McKey v. Willett, 248 Ill. App. 602. In that case the divorced wife became a voluntary bankrupt and assigned to the trustee in bankruptcy $6,000 which was to become due to her from her former husband as alimony under the provisions of a decree entered by agreement in a divorce proceeding. The decree provided that the husband, in settlement of all claims the wife might have against him, pay to the wife certain payments including three $2,000 instalments, due one, two and three years respectively from the date of the decree, which were the payments involved in the bankruptcy proceeding. The trial court held that the assignment which the wife had made of these payments to the trustee in bankruptcy was void. On appeal the Appellate Court reversed the trial court, holding that the alimony though not yet due was alimony in gross and was vested and passed to the trustee under the assignment. The court there said at page 605:1 ‘ There is a well-recognized distinction, under - decisions in Illinois and elsewhere regarding awards of alimony, between those ‘in gross’ and those where periodic payments (monthly, quarterly or yearly) are ordered made to the wife within the joint lives of the parties or until the wife remarries. . . . And it is the law that ‘where, a sum in gross is allowed, it may be made payable in instalments.’ (19 C. J. 261, 608; Winemiller v. Winemiller, 114 Ind. 540, 541; Bassett v. Waters, 103 Kan. 853, 855; Smith v. Rogers, 215 Ala. 581, 112 So. 190, 192.) ”

The McKey v. Willett case was followed by the U. S. Circuit Court of Appeals (7th circuit) in another bankruptcy case, In re Fiorio, 128 F. (2d) 562, decided in 1942.

In both of such cases it was necessary for the court to determine that the decree in question was final and not subject to modification in order to conclude that a vested property right passed to the trustee.

Other courts of respectable authority have expressly held that an award of alimony in gross is not transmuted into an ordinary alimony decree because the decree permits the gross sum to be' paid in instalments.

In Jones v. Jones, 216 Ky. 810, 288 S. W. 737, the court said: “It will be observed that by the judgment the wife was allowed a lump sum by way of alimony. The fact that this lump sum was to be paid at the rate of $25 a month until satisfied did not make it any the less a permanent allowance for alimony. The wife being divorced from the bonds of matrimony, the allowance to her represented all interest she had in her husband’s estate. It was not a mere allowance for support, it was an allowance in lieu of the interest she had in her husband’s estate as his wife. If he, after the judgment, had become a millionaire, or if she had failed in health, or lost all the property she had at the time of the judgment, neither event would have affected the • rights of the parties, for their rights were fixed by the final judgment entered pursuant to the mandate of this court. Whether she remained single or married again was immaterial.”

In Smith v. Rogers, 215 Ala. 581, 112 So. 190, it was held that an allowance in gross, without reservation of power to modify, became a vested right entitling the wife, upon the husband’s decease to recover the unpaid amount from his estate. The court said: “There is no escape from the conclusion that a decree for alimony in gross, if without reservation, becomes a vested right from the date of its rendition and survives the death of the husband. Differing from a mere periodic allowance for current and continuous support, it is intended to effect a final termination of the property rights and relations of the parties, and is an approximate appraisal of the present value of the wife’s future support, and, in a measure, a compensation for her loss of inchoate property rights in her husband’s homestead and other estate given to her by statute in case of her survival. . . . The decree, therefore, has the effect of a final judgment for the payment of money, and is as binding upon the estate of the husband as upon himself while living. The fact that the decree allows the award in gross to be paid in installments does not change its nature or effect. The decree in this case might have been for the present payment of the whole amount. The concession of payment in five installments was for the convenience and benefit of the husband, merely, and the chance circumstance of his death before all were paid cannot, in justice or reason, absolve bim from the obligation to pay, through his personal representative, or through the judicial enforcement of the decretal lien fastened on his property, when and as the deferred payments became due. . . . We need not, and do not, consider what the rule would be where the decree is for periodic payments for an- indefinite period, for the care and support of the wife.”

In Beard v. Beard, 57 Neb. 754, 78 N. W. 255, wherein a lump sum in money had been allowed the divorced wife, payable in instalments, the court said: “The alimony awarded the wife in this divorce suit was a sum in gross, meant and intended by the court to be in lieu of her dower, homestead, and all her other rights and claims against the property of her husband. It was, in effect, a decree awarding the wife a money judgment for her share of the common property of the husband and wife upon the dissolution of the marriage. . . . Such a judgment becomes a positive, final, and conclusive one, and cannot be changed or modified after the term at which it was rendered except for the causes and in the same man-, ner that other judgments may be modified.”

The appellee relies and the majority opinion is based principally on the cases of Adler v. Adler, 373 Ill. 361; De La Cour v. De La Cour, 363 Ill. 545; Herrick v. Herrick, 319 Ill. 146; Welty v. Welty, 195 Ill. 335; Thompson v. Menteer, 216 Ill. App. 470; and Miller v. Miller, 317 Ill. App. 447.

In Adler v. Adler, 373 Ill. 361, the court did not pass upon the question of whether a final settlement in gross, as in the present case, is such a settlement as is beyond the power of the court to modify or change, for, on page 363 of the opinion the court said: “The question presented is whether the provision in the supplemental instruments of December 1, 1922, and the decree of December 2, for the quarterly payment of $1150, was an allowance of alimony and subject to modification under section 18 of the Divorce Act, or was it a final settlement in gross, of all the interest of the parties arising out of the marital relation,' and, therefore, beyond the power of the court to modify or change.’.’ In deciding this question the court said at page 371: “Respondent urges it was a settlement in gross and therefore not subject to modification. The answer is that the number of quarterly payments petitioner would be required to make was uncertain for it was dependent upon the date of death of respondent, and not upon their total reaching a predetermined sum.’’ While the court did not there expressly say what its position would have been if the amount had been for a definite lump sum, payable on a definite date or dates as in the case before us, yet if there is any inference to be drawn from such lan.guage, I believe the inference is that a settlement in gross is not subject to modification.

In De La Cour v. De La Cour, 363 Ill. 545, the decree provided for the payment of the sum of $3,000 in monthly instalments of $50 each. No other portions of the decree are set out in the opinion and it is impossible to determine therefrom whether this sum was to be paid as a part of a final property settlement or not. Several months after the entry of the decree, the divorced husband filed in the same proceeding a petition asking that the trial court find that he had made all monthly payments up to a certain date, and asking that the divorced wife be restrained from interfering with his personal liberties. The trial court “entered an order that the divorce decree, to the extent it provided for payments of alimony in instalments, be satisfied of record, to and including the payment due on” a specified date, and enjoining the wife from interfering with the personal liberties of the husband. The Supreme Court affirmed such order of the trial court, holding that the trial court had continued jurisdiction under section 18. I do not consider this decision in point for the reason that the provision of the original decree for the payment of a lump sum, payable in monthly instalments, was not disturbed and was not attempted to be disturbed.

In Herrick v. Herrick, 319 Ill. 146, a property settlement agreement was incorporated in the decree, which, among other things, provided that the husband should pay the wife $300 per month during her lifetime for her support and maintenance. Bight years thereafter the husband filed a petition setting forth a change in circumstances and asking that the court modify the provision for alimony. The trial court granted this relief and the Supreme Court affirmed such action, holding that the trial court had continued jurisdiction under section 18. It will be noted from a reading of the case that the question of the power of the court to modify a decree for a definite gross lump sum was not in issue and was not discussed. It will also be noted that the amount awarded was not for a definite lump sum, for, as said in the Adler case, “the number of . . . payments . . . was uncertain for it was dependent upon the date of the death of” the wife “and not upon their total reaching a predetermined sum. ’ ’

In Welty v. Welty, 195 Ill. 335, the decree provided “That complainant, Catherine Welty, shall have the sole care, custody and education of their children, Robert, Matthew and Leslie Welty; that the defendant, Robert A. Welty, shall pay to the said Catherine Welty $25.00 on the first day of each month for a period of eight months, commencing June 1, A. D. 1899, and continue until the sum of $200.00 is paid, said sum to be in lieu of and in full for alimony and in full of all other claims of any kind or nature.” The husband attempted to escape a contempt order by contending that this was an ordinary decree for the payment of money rather than a provision for the payment of alimony. The court found this contention to be without force stating that the “whole decree, when all of its parts are read together, is a decree for the payment of so much money for alimony, and shows upon its face that such sum of money was to be paid for the support of the appellee and for the care, custody and education of the children.” By reason of the fact that the payments in the Welty case were to be used for the support of the children as well as that of the wife, the court would have had a continuing power to change this provision of the decree irrespective of the provisions of section 18.

In Thompson v. Menteer, 216 Ill. App. 470, there was involved only the question of the payment of $30 per month during the life of the father of the wife, and until a minor son of the parties should arrive at the age of 21 years. This was for an indefinite period or a period that could not be determined at the time of the entry of the decree, and the gross amount of such payments could not be, and were not, by the decree determined as being for any definite lump sum. The court said: “We think it clear that since the decree provided for monthly payments it cannot be said that the alimony was for a gross sum.”

In Miller v. Miller, 317 Ill. App. 447, although it appeared that the parties had entered into an agreement regarding the question of “alimony and adjustment of property rights,” -which was incorporated in the decree, the opinion of the court does not show what property rights were actually involved in the settlement, or whether the wife released any property right, such as inchoate dower. The decree ordered the husband to make monthly payments of $175 per month for a specified time, and thereafter $150 per month for a specified time, $15 per week of such payments to be for the support of a minor child. The agreement provided that the payments between March 1940, and September 1943, were not to be affected or modified by the remarriage of the wife. The wife remarried on May 30, 1941, and on June 23 following, the husband filed a petition praying that the decree of divorce be modified so as to relieve him from further payments of alimony after his wife’s remarriage. The Appellate Court held that section 18 of the Divorce Act applied and that the alimony awarded was not for a gross sum, saying that the decree provided that the payments were “for alimony and support,” and saying, “we think it clear that this was not alimony awarded for a gross sum.”

In the Miller case, there was no reference in the decree to “gross alimony” and the amount to be paid was not expressly set at a lump sum by the terms of the decree.

If the law in this State is that where a definite gross allowance of alimony is made payable in instalments, it is thereafter subject to modification because of the remarriage of the wife, then it would seem to follow that a wronged wife whose husband is unable to make immediate cash payment, cannot safely agree to have an extension of the time of payment of gross alimony incorporated in a decree, and such wife cannot get the same relief as a wife whose husband is able to pay cash, and that this is true whether such wronged wife thereafter remarries or remains single. Such a rule does not appear to me to be based on sound principles of law or equity. If such is the law, then it would also seem to follow that, regardless of the question of remarriage, any decree for gross alimony payable in future instalments, is subject to modification so that the wife may get more or the husband pay less because of changed conditions of either party. Undoubtedly a great many decrees have been entered in this State for gross alimony payable in instalments where payment in full has not yet been completed. If the majority ruling is the law it would also seem to follow that if the beneficiary under such a decree dies before payment is fully made then the unpaid balance will not be an asset of the estate of such beneficiary and the husband will be relieved from further payment under said section 18. I do not believe that the legislature intended any such results by the use of any of the language used in section 18. When the literal enforcement of a statute will result in great injustice and lead to consequences which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction that it may be reasonable to presume was contemplated by the legislature. (Hoyne v. Danisch, 264 Ill. 467, 484.)

It is my conclusion that the proviso to section 18 of the Divorce Act was not intended to and does not apply to a definite lump sum allowance of alimony made as part of a property settlement agreement incorporated in the decree; that this is true whether the money is payable on the entry of the decree -or in future instalments for the convenience of the parties ; and that the legislature meant only that a divorced wife after her remarriage should not be entitled to receive mere periodic payments of alimony which would otherwise accrue after such remarriage. In this case, in my judgment, no part of the $4,500 liability accrued after the entry of such decree, but the obligation to pay such sum of $4,500 became a debt accruing to the wife immediately on the entry of the decree, although payable in future instalments, and in my opinion this sum was not, nor was any part of it, alimony as that term is used in section 18.