McKenna v. McKenna , 1897 Ill. App. LEXIS 526 ( 1897 )

Mr. Justice Waterman

delivered the opinion oe the Court.

An order to pay temporary alimony or solicitor’s fees must be based upon a finding that the party so commanded to pay is the husband of the complainant. If such condition be admitted or not denied, it may, for the purpose of the order, be assumed.

In the view of the writer of this opinion, when the existence of. the .alleged' marriage is denied, no such order can properly be made until a hearing has been had and the court upon it finds and adjudges that the relation of wife and husband exists.

If, before hearing and without regard to the denials of the defendant, an order to pay temporary alimony and solicitor’s fees can be made upon the mere filing of a bill alleging marriage of the complainant to the defendant, cause for divorce or separate maintenance, and ability of the defendant to pay, then an easy method for procuring the temporary support of unmarried women and good fees for the bar has been found.

Upon disputed questions of fact to compel one to pay without a hearing, is to deprive him of property without due process of law, for due process of law involves a hearing upon the allegations and denials of the parties.

If the defendant merely deny the alleged cause for separation, ordinarily, an order for alimony and solicitor’s fees may be made, for the fact of marriage entitles the suing wife to such- order, whether she has cause or not for bring- ' ing suit; while if there be no marriage there can not be obligation to support or to furnish funds to enable the complainant to prosecute lawsuits. Bishop on Marriage and Divorce, Vol. 2, Sec. 924; Vreeland v. Vreeland, 3 N. J. Eq. 43.

In the case of Schonwald v. Schonwald, 1 Phillips’ Eq. 219, which is based upon the statute of Uorth Carolina, there is a dictum to the effect that temporary alimony may be allowed, notwithstanding a denial of the marriage by the defendant, the court saying :

“ Our statute is general * * * and puts the right to be allowed alimony pendente lite upon the sufficiency of the matter set forth in the petition; proceeding upon the idea that it is better when a woman makes oath, under the penalty affixed to perjury, to the fact of marriage, to take it to be true for the purpose of allowing alimony pendente lite, even, although it may turn out to be false, and the man may have but little chance to get back what he ought not to have been compelled to pay, rather than subject a wife tó the danger of starvation, if a brutal husband makes oath denying the fact of marriage, which may turn out to be false.”

The logical conclusion from such premise is, and the more accurate statement would be, that it is better to compel any man to pay temporary alimony and expenses of suit to any woman who may see fit to make oath that he is her husband, however strongly he may deny the accusation, rather than allow her to be in want of money which he has.

In the present case it appears from the bill filed by appellee. two years before bringing the present suit, she, under her hand and seal, declared that she was notand'never had been the wife of appellant, and had no claim upon him, and that she consented that her suit for separate maintenance be dismissed for want of equity; .and that such decree was thereupon entered.

The bill in the present case alleges that such decree was procured by fraud of appellant, and appellee, asks that it be set aside, but she does not allege that since the entry of the same there has been any marriage or act indicating a marriage relation.

In the face of such statement and decree, the court should not, without some proof, have awarded to the complainant temporary alimony and solicitor’s fees.

The order of the Circuit Court is reversed.

In Ho. 202 of the present term, McKenna v. McKenna, the record being the same as that in which the foregoing opinion is given, the order of the Circuit Court is reversed.