Kelley v. Kelley , 317 Ill. 104 ( 1925 )

Appellant, Rosine Holmes Kelley, filed her bill in the superior court of Cook county asking that the marriage between her and Clark Mansur Kelley, appellee, be dissolved and that she be awarded the care and custody of their child, Barbara Anne Kelley, eight months old. Appellee could not be found in the State and service was had by publication. May 16, 1922, a decree of divorce a vinculo matrimonii was granted and the care and custody of the child was awarded to appellant. Thereafter appellee returned to Cook county, and December 4, 1922, appellant filed a petition in the same cause alleging that she filed her bill charging appellee with extreme and repeated cruelty and praying for divorce and for alimony and solicitor's fees, and that a default decree was subsequently entered. She further alleged that appellee was then within the jurisdiction of the superior court of Cook county, and asked that he be summoned to show cause why he should not pay to appellant money for her maintenance and for the support of their child and for solicitor's fees. Appellee was duly summoned to appear at the next term of court, and January 3, 1923, he filed an answer, admitting that a final decree of divorce was entered May 16, 1922, and alleging that the court was without jurisdiction, at the time the decree was entered, to enter an order requiring him to pay alimony or solicitor's fees. The answer denies that the court has jurisdiction to enter a further order in the cause and asks that the petition be dismissed. There was a hearing on the petition and an order entered finding that the court had jurisdiction to consider the petition, and that appellee is an able-bodied man, is regularly employed, is earning $25 a week, is residing with his parents, is able to support appellant and their child, and that appellant has no means or property of her own. Appellee was ordered to pay to appellant the sum of $12.50 a week as alimony for her and their child until the further order of the court and to pay to appellant $75 for solicitor's fees. On appeal to the Appellate Court the decree was reversed. A certificate of importance was granted and this further appeal is prosecuted.

The questions presented by this appeal are novel and a decision of them is bound to be far-reaching. Notwithstanding this, we have been compelled to make an independent search of the authorities and have not been aided by properly prepared briefs of counsel. Appellant has filed a brief citing an early case decided by this court where the only question involved was the modification of a decree in personam entered at a former term of court. The brief has not furnished us with any of the authorities from other jurisdictions which deal with the questions before us. Appellee has filed no brief at all. Rule 15 provides that each party shall file a printed brief in the cause. The brief of appellant should contain the points relied upon for a reversal and these points should be supported by authorities. If the question has been decided by this court it is not necessary to cite authorities from other jurisdictions, but if the question has not been decided by this court it is the duty of counsel for appellant to support his contentions by an authority from each jurisdiction that has decided it. Counsel for appellee took this case to the Appellate Court, and it was his duty to follow the case to this court and present the authorities relied upon to sustain his position. If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. If the case is not properly presented and the court is not given the benefit of precedents there is danger of a decision being rendered that will not be in harmony with the weight of authority. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

The Mosaic law recognized the right of a man to divorce his wife, and under the civil law either party might renounce the marriage union at pleasure. The right of a court to grant an absolute divorce is derived entirely from legislative grant. Prior to the English Divorce act of 1857 the right of the ecclesiastical courts to grant a divorce a mensa et thoro was recognized, but these courts did not have the power to grant a divorce a vinculo matrimonii. They sometimes entered decrees of annulment for causes which rendered the marriage void abinitio, but the only absolute divorces granted in England were by special acts of Parliament. While in this country the matter of granting a divorce involves the judicial process, it has always been recognized that the courts have only such power with respect to granting a divorce absolutely severing and canceling the marital bonds as the legislature sees fit to confer upon them. Where the divorce amounts to nothing more than a separate maintenance, which is the kind of divorce that was granted by the ecclesiastical courts of England, the status of marriage continues, and the power to grant alimony with such a divorce carries with it the power to modify or alter the allowance of alimony to meet new conditions. This is not true, however, with respect to a divorce which destroys the marriage relation. In that case the obligation to support the wife ceases with the severance of the marriage relation except in so far as the decree of divorce by authority of the statute provides for alimony. Unless the statute granting the power to award alimony to the wife authorizes the court to alter the decree to meet new conditions, the decree is like a final decree in any other case and cannot be changed. Ruge v. Ruge,97 Wn. 51, 165 P. 1063, L.R.A. 1917-F, 721.

In the case at bar appellant took her decree of divorce without personal service on appellee, and under those circumstances the chancellor was without power to award alimony. This was a voluntary act on her part, and by causing to be entered a final decree severing the marriage relation she placed it beyond the power of the courts to award alimony. In so far as it is authorized by statute, alimony may be allowed to the wife as a part of a decree for divorce or for separate maintenance, but alimony cannot be allowed on a bill filed for that purpose, alone. (Trotter v. Trotter, 77 Ill. 510.) The summons having been served by publication, the court was powerless to grant any relief in personam, and, no jurisdiction of the subject matter having been reserved in the decree, the court's resumption thereof, if the right can exist under any circumstances after the close of the term at which the decree was rendered, must be found in our statute on divorce. Section 18 of the act provides: "When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, * * * as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. * * * And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, * * * as shall appear reasonable and proper." Before an allowance can be altered there must have been an allowance made at the time the decree was entered. There was an attempt to make an allowance in this case, but it is conceded that that part of the decree is void. The plaintiff was not obliged to take her decree under the circumstances, and having done so she waived her right to alimony and solicitor's fees. There being no order allowing alimony to appellant when the decree for divorce was entered, there is no power now, on this supplemental proceeding, to make an original allowance.McFarlane v. McFarlane, 43 Ore. 477, 73 P. 203; Howell v.Howell, 104 Cal. 45, 37 P. 770; Spain v. Spain,177 Iowa, 249, 158 N.W. 529, L.R.A. 1917-D, 319; Moross v. Moross,129 Mich. 27, 87 N.W. 1035; Bassett v. Bassett, 99 Wis. 344,74 N.W. 780; Tobin v. Tobin, (Ind.) 64 N.E. 624; Plaster v.Plaster, 47 Ill. 290.

While a bill which has for its sole purpose the obtaining of the care and custody of a child cannot be maintained, (Thomas v. Thomas, 250 Ill. 354,) the Divorce act authorizes the court which has jurisdiction of a suit for divorce to make orders concerning the care and custody of the child or children of the parties during the pendency of the suit or upon final hearing when a divorce is decreed, and this order respecting the care, custody and support of the child or children may be altered from time to time as changed conditions warrant. (Stafford v. Stafford, 299 Ill. 438.) Since the children of divorced parents are often exposed to the mutual animosities and jealousies of their parents and the happiness of the children and their usefulness as citizens are thereby endangered, it is the established policy of the law of this State to regard such children as wards of the court. The nurture and proper training of the children of divorced parents being matters of vital interest to the State as well as to the children themselves, the legislature has provided that the court granting a divorce shall have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders with respect to their care, custody and support as reason and justice shall require. While the marriage relation may be dissolved and the marital rights and duties thereby brought to an end, the relation of parent and child cannot be destroyed. The obligation of the father to support his children begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. (Plaster v. Plaster, supra.) His children are of his blood. It is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into the world until they are old enough to take care of themselves. We entertain no doubt that the court that granted a decree in this case awarding the custody of the child to the mother had authority, upon the presentation of a petition for the purpose, to issue a citation requiring the father to appear and show cause, if any he had, why he should not be required to assist in supporting his minor child. This conclusion finds support in many well considered cases from other jurisdictions.McFarlane v. McFarlane, supra; Tobin v. Tobin, supra; Spain v.Spain, supra; Marks v. Marks, 22 S.D. 453, 118 N.W. 694;Chambers v. Chambers, 75 Neb. 850, 106 N.W. 993;Renner v. Renner, 127 Wis. 371, 106 N.W. 846; Miles v. Miles,65 Kan. 676, 70 P. 631.

The judgment of the Appellate Court and the order of the superior court are reversed and the cause is remanded to the superior court for further proceedings in harmony with the views herein expressed.

Reversed and remanded.