Appeal by plaintiff from the Superior Court of Cook county;
the Hon. EDWIN A. ROBSON, Judge, presiding. Heard in the first
division of this court for the first district at the June term,
1949. Reversed and remanded with directions. Opinion filed
October 9, 1950. Released for publication November 17, 1950.
MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. Plaintiff, divorced wife of defendant, appeals from an order of the superior court of Cook county terminating instalment payments of money, payable under a divorce decree, after and because of the divorced wife's remarriage, and from an order dissolving a rule on defendant to show cause why he should not be held in contempt for failure to make certain instalment payments. The matter comes here on the pleadings.
Plaintiff on June 14, 1946, after a number of preliminary motions, filed her amended complaint for divorce charging extreme and repeated cruelty. On the same day, an answer was filed denying the acts of cruelty, the cause was heard as an uncontested matter, and decree entered. The property settlement agreement of the parties, made part of the decree, in material portions is as follows:
"1. As a lump sum property settlement and alimony in gross, in full of her right, title and interest of every kind, nature, character and description whatsoever, in and to the property, income or estate which the Husband now owns or may hereafter acquire.
"(a) The Husband shall pay to the Wife the sum of Thirty-four Thousand Five Hundred Forty Dollars ($34,540.00), payable in periodic payments during a period ending more than ten years, as follows:
"Twenty-five Hundred Dollars ($2500.00) in cash on the date of the entry of the contemplated decree for divorce hereinafter mentioned; and
"Two Hundred Sixty-seven Dollars ($267.00) per month for a period of one hundred twenty (120) months, first payment to be made on August 1, 1946.
"(b) In the event of the death of the Husband prior to the completion of the payments set forth in subparagraph (a) above, any unpaid balance thereof, shall be a charge against his estate.
"(c) The Husband shall by his Will provide as follows: to bequeath to the Wife the sum of Ten Thousand Dollars ($10,000.00) to be paid to her upon his death in the event she survives him and has not remarried; in the event the Wife has predeceased him or has remarried, such sum shall be paid to the son of the parties, Carl Clark Walters; and in the event the Wife has remarried and their said son has predeceased the Husband, such legacy shall be cancelled.
"4. Each of the parties hereto does hereby (to the fullest extent that he or she may lawfully so do without voiding this contract) forever relinquish, release, waive and quitclaim to each other all rights of dower and homestead and all real or personal property rights and claims which he or she now has or may hereafter have, as husband, wife, widower, widow, or otherwise, by reason of the marital relations existing between the parties hereto under any present or future law of any state and of the United States of America or of any other country, against the property of the other party, or his or her estate, whether now owned or hereafter acquired by the other party."
Provision is made that each party should retain the furniture in his or her possession and that the wife's attorney's fees in the sum of $2,000 be paid by the husband.
The decretal portion provides in part:
"2. That the agreement between the plaintiff, Ola Stauffer Walters, and the defendant, Edward H. Walters, dated the 10th day of June, 1946, and hereinabove set forth in full, be and the same is made a part of this decree for divorce; and that all of the provisions of said agreement be and the same are expressly ratified, confirmed, approved, and adopted as the orders of this Court to the same extent and with the same force and effect as if said provisions were in this paragraph set forth verbatim as the decree of this Court.
"3. That all the right, title, claim and interest of each party in and to the property of the other party, real, personal or mixed, that he or she now owns or may hereafter acquire, by way of dower, homestead, jointure or otherwise, except the rights granted to each of them by the terms of the agreement of June 10, 1946, hereinabove set forth in full, be and the same are forever barred, terminated, ended, and released."
On October 27, 1947, plaintiff filed a petition charging the defendant with being in arrears under the terms of the decree in the sum of $801, being payments due on August 1st, September 1st and October 1st, 1947, in the amount of $267 each. Petitioner asked for attorney's fees for services in connection with preparing and prosecuting the petition. Defendant answered, setting out that on July 2, 1947, plaintiff married one John T. Wheeler, by reason of which fact her right to periodic payments of alimony ceased. Defendant prayed (a) that the court dissolve its rule on defendant to show cause why the defendant should not be held in contempt of court, and (b) that the petitioner's prayer for a reasonable sum as and for her attorney's fees be denied.
On November 6th a petition for modification of the divorce decree was filed by defendant, praying cancellation, as of the date of the filing of the petition, of the periodic allowances of alimony which would accrue in the future by the terms of the decree and relieving defendant from the obligation of making further payments to plaintiff. Plaintiff filed a motion to dismiss this petition. Subsequently the court denied plaintiff leave to file certain additional pleadings which we deem unnecessary to consider here. On December 6, 1948, the court entered the order appealed from, finding in part material here that the payments provided for in the decree were "periodic alimony" to which plaintiff ceased to be entitled after and by virtue of her remarriage. The decree was ordered modified by relieving the defendant of the requirement to pay alimony instalments due after her remarriage; plaintiff's petition for a rule to show cause why defendant should not be held in contempt for failure to pay the monthly instalments which became due after plaintiff's remarriage and plaintiff's prayer for attorney's fees were denied.
The primary question raised by this appeal is whether the amount required to be paid "as a lump sum property settlement and alimony in gross" became a vested property right of plaintiff upon the entry of the decree. Whether or not it did so become necessitates an examination into the provisions of the decree to determine whether the provision was in fact a lump sum property settlement payable partially in instalments or whether it was merely a provision for the payment of periodic alimony. If it was a lump sum settlement, then it is not modifiable; but if it was periodic alimony, then it is modifiable, and under section 18 of the Divorce Act plaintiff's right to payment of the instalments accruing after remarriage is extinguished.
Section 18, par. 19, ch. 40, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 109.186] in force at the time this decree was entered, provided as follows:
"When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; . . . and provided further that a party shall not be entitled to alimony and maintenance after remarriage. . . ."
The provision "that a party shall not be entitled to alimony and maintenance after remarriage" was enacted by amendment in 1933. The statute was further amended on July 27, 1949, to provide that, regardless of the remarriage, any party to whom instalment payments as settlement in lieu of alimony have been ordered paid, shall be entitled to receive any unpaid instalments. However, in view of the conclusions arrived at, this 1949 amendment is not here considered. For that matter, the 1933 amendment to section 18, which provided that a party shall not be entitled to alimony and maintenance after remarriage, brought about no change in the basic law of this State, but was merely declaratory of that law as it had long existed, as will be shown hereinafter.
[1-7] "Alimony" has been defined as an allowance in a decree of divorce carved out of the estate of the husband for the support of the wife. Adler v. Adler, 373 Ill. 361, 369; Herrick v. Herrick, 319 Ill. 146; Barclay v. Barclay, 184 Ill. 375. These and many other Illinois cases hereafter considered indicate that the term "alimony" bears certain distinguishing characteristics. It is for an indefinite period of time and usually for an indefinite total sum. It is based upon the husband's income and the needs of the wife determined from the standpoint of the manner in which they have been accustomed to live. It is modifiable after decree when the wife's needs increase or decrease, or when the husband's ability to pay increases or decreases. This is so because it takes the form of periodic allowances which do not vest until they become due. It usually terminates upon the death of the husband, although by agreement payments may be made a charge upon the husband's estate after they become due. They are never a charge on a husband's estate in advance of the due date because they are not, prior to that time, vested. Payments of alimony from husband to wife are not based upon any consideration moving from wife to husband, but are based upon the common-law duty of the husband to support his wife. "Alimony" in this sense of the word, is modifiable.
[8-10] On the other hand, the phrase "alimony in gross" or "gross alimony" is always for a definite amount of money; the payment is always for a definite length of time; it is always a charge upon the husband's estate and has uniformly been held by our courts to be not modifiable.
In the early case of Plaster v. Plaster, 47 Ill. 290, a divorce was decreed at the November Term, 1854, and it appearing that the defendant was at that time worth $1,000, one-quarter of this was decreed to the wife "as her absolute property and as alimony." At the March Term, 1866, the wife filed a petition claiming payment for the support and education of the child of the couple and for further alimony. In holding that the decree as to alimony was not modifiable, the court said at page 294:
"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. . . . 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. . . . 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."
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 Griswold v. Griswold, 111 Ill. App. 269, the court said at page 278:
"When a gross amount is awarded as alimony, it will be deemed a full discharge of all claims for future support of the wife, . . . but where an annual allowance is decreed, the court has the power to alter or modify such allowance, as the subsequent needs of the wife and ability of the husband may reasonably and properly require."
In Plotke v. Plotke, 177 Ill. App. 344, the court said at pages 347, 348:
". . . where the decree awards a sum in gross for, or in lieu of alimony, such a decree will be regarded as final and the gross sum, when paid, will operate as a discharge and satisfaction in full for all claim for future support of the wife. . . . we think the order for the payment of alimony in gross should only have been entered with the consent of the appellant; for by such an order, she is forever barred from making any further application to the court, even if his earnings from his law practice shall increase ten-fold."
In Martin v. Martin, 195 Ill. App. 32, the decree provided "that the defendant pay to the complainant the sum of $1,000 as and for her reasonable solicitor's fees and suit money, together with the costs of this proceeding, and also the sum of $15,000 as alimony for the said complainant." Later there was a petition filed for modification on the ground of a change in the financial condition of the parties. The court said at page 34:
"No complaint is made as to the action of the last-mentioned chancellor in denying the motion to modify that portion of the decree in regard to alimony and solicitor's fees, and it is plain that the chancellor acted properly in that regard. Where the provision for alimony in the decree takes the form of a weekly, monthly or yearly allowance, the power is expressly reserved by the statute to modify such a provision of the decree at any time, according to the varying circumstances and needs of the parties, but in the present case the decree awarded a sum in gross for alimony, and such a decree is final, and the chancellor before whom the motion to modify was made had no power to change the same, the term at which the decree was entered having gone by. Plotke v. Plotke, 177 Ill. App. 344."
In Maginnis v. Maginnis, 323 Ill. 113, the court said at page 117:
"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 ...