Cooper v. Cooper , 185 Ill. 163 ( 1900 )

Per Curiam:

In deciding this case, the Appellate Court, after stating the facts as set forth in the preceding statement, delivered the following opinion:

“It will be observed from the affidavits that appellant does not disclose the value of his property or the amount of his annual income, but simply denies that he is worth as much or has income as great as appellee in her sworn bill and her affidavit avers. This omission, his'counsel say, was expedient for business reasons, which may be true; but the amount of his income was an essential fact in determining appellee’s motion, and his omission to inform the court of that fact is certainly not a circumstance favorable to him. It is apparent that the appellant is very wealthy, and that appellee has, while living with her husband, been accustomed to having large amounts expended on her account. It is not denied that the amounts alleged by appellee to have been expended in the months heretofore mentioned, in 1898, were expended by appellant, as averred by appellee. Appellant’s answer to appellee’s affidavit that in the year 1893 he withdrew $101,104.77 from Siegel, Cooper & Co. is a negative pregnant. He says that the allegation that he withdrew over $100,000 is untrue, impliedly admitting that he withdrew $100,000.

“It appears from the affidavits that appellant provided horses and carriages for the use of appellee, which, in view of appellant’s means, certainly cannot be said to have been unsuited to her condition in life. Appellant’s own estimate of the allowance which should be made for appellee’s support is but little less than that allowed by the court. In his affidavit he says that $500 per month, with house rent paid, is ample to cover all reasonable expenditures for the complainant’s living expenses of all kinds. In his letter to appellee of October 31, 1898, written the seventh day after the suit was commenced, he says: T enclose check for $500, your usual monthly allowance, and will continue to pay rent of flat and barn.’ The court allowed $600 per month and the rent of the flat and barn,—only $100 more than what appellant estimated would be sufficient. It would seem that, in so far as the order for temporary alimony is concerned, there is but little about which to litigate.

“Counsel for appellant have filed an elaborate argument, citing numerous cases, which we cannot avoid thinking unnecessary, as every principle applicable to the case is announced in the very thorough, well supported and exhaustive opinion of the court in Harding v. Harding, 144 Ill. 588. The propositions of appellant’s counsel are as follows: First, complainant must show that she has a meritorious case before alimony pendente lite is allowed; second, when a wife has sufficient means to maintain herself and conduct her suit, alimony pendiente lite will not be allowed; third, the court can take into consideration the circumstances of the case in fixing the amount of alimony; fourth, the court should give a less sum when the wife’s misconduct has contributed to the cause of separation; fifth, the amount allowed by the court is excessive.

“In Harding v. Harding the court say: ‘The court should enter into a sufficient examination of the case to determine the good faith of the complainant in exhibiting her bill, which will ordinarily be confined to an inspection of the pleadings," of which the court may, and should, if other proof be not made, require verification. ’ The court further say: ‘The petition is verified by the oath of the complainant. This was sufficient, if the court believed her, to warrant the exercise of the discretion of the court in finding that she was proceeding in good faith.’ The court further holds: ‘It is no objection to the allowance being made that the husband denies what the wife alleg'es. ’ In the present case, not only was appellee’s bill verified by her oath, but she made a separate affidavit in support of her motion for temporary alimony, and the court evidently found that her bill was exhibited in good faith.

“Whether temporary alimony should or not be allowed does not depend on the wife’s ownership of non-income-producing property. In the case cited, the court held that if the income of the wife is insufficient to maintain her and enable her to carry on her suit, and that of the husband is ample, she should be allowed from her husband’s income such sum as will, when added to her own, enable her to live comfortably, pending the litigation, in the station in life to which her,husband has accustomed her.

“That the court, in fixing the amount of alimony, may take into consideration the circumstances of the case is a sound proposition, but the proposition that a less sum should be given when the wife’s misconduct has contributed to the separation has no application to a motion for temporary alimony and suit money. On such motion the court will not look into the merits, (2 Bishop on Marriage and Divorce, etc. sec. 940,) but will only investigate sufficiently to determine whether the complainant’s bill is exhibited in good faith. Whether the complainant has, in fact, a meritorious case, whether the truth in respect to the issues is on her side, cannot be determined until the proof shall have been put in and a hearing had. (Harding v. Harding, supra).

“Whether temporary alimony should be allowed, and, if so, how much, are questions resting in the judicial discretion of the court in view of the conditions and circumstances of each case, and an abuse of the discretion is necessarily subject to review. Upiess, however, there is clearly an abuse of the discretion, the decree will not, ordinarily, be disturbed on appeal. (Harding v. Harding, supra). In the present case, the wife’s annual income, so far as appears from the affidavits pro and con, consists of less than six per cent on $10,000 and six per cent on the par value of $1100 of stock, or not in exceess of $666 in all, while the husband’s income is ample, in view of which we deem the allowance of temporary alimony fair and reasonable.

“Neither can we say that there was clearly an abuse of discretion in allowing the sum of $1500 to complainant for solicitor’s fees or suit money, considering the issues involved, the pecuniary ability of appellant to contest the averments of the bill, and his answers, which clearly indicate that he intends so to do. In the Harding case the sum of $1000 was allowed as solicitor’s fees and $400 additional for other expenses of suit. In the present case nothing has been allowed for expenses of suit other than solicitor’s fees, and appellee may be compelled to expend, for snch other expenses, some of the money awarded to her on account of solicitor’s fees. The money, when paid, will be hers—not that of her solicitor.

“The order will be affirmed.”

We concur in the foregoing views and in the conclusion above announced. Accordingly, the judgment of the Appellate Court is affirmed.

Judgment affirmed..