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Shuff v. Fulte





Appeal by defendant from the Circuit Court of Shelby county; the Hon. FRANKLIN R. DOVE, Judge, presiding. Heard in this court at the May term, 1951. Affirmed in part and reversed in part, and remanded with directions. Opinion filed May 31, 1951. Rehearing denied September 4, 1951. Released for publication September 4, 1951.


Rehearing denied September 4, 1951

A bill of complaint was filed by the plaintiff-appellee and cross-appellant, hereinafter referred to as the plaintiff, in the circuit court of Shelby county, in 1930, charging the defendant-appellant and cross-appellee, hereinafter referred to as the defendant, with extreme and repeated cruelty. At that time there were two children as a result of the marriage, a daughter, Leatha Fulte, about three years of age, and a son, Raymond Fulte, seven months of age. A trial by jury resulted in a verdict finding the defendant guilty of extreme and repeated cruelty, as charged in the complaint. The decree entered at that time granted the plaintiff the care, custody, control and education of the two minor children, reserving rights of visitation to the defendant. The defendant was ordered to pay to the clerk of the court for the use of the plaintiff to enable her to support the two children, the sum of $4 each and every week during each and every year until the further order of the court.

On March 6, 1933, the decree was modified, reducing the payments to $3 per week, and further ordering that the payments proceed in this matter until the further decree and order of the court.

In order to enforce the decree as entered, the plaintiff on ten different occasions, beginning on May 2, 1931, filed petitions for rules to show cause, and on four of said occasions the defendant was found guilty of contempt of court for noncompliance with the decree. The last petition for rule to show cause was filed on June 2, 1950, which charged the defendant with having paid only the sum of $312.50 since the 24th day of May, 1941, there being due at that time the sum of $783; and that, together with the accumulated installments to the date of filing the petition, there was due the sum of $1,883.50. Defendant filed his answer to the petition, admitting that the $783 was due as charged in the complaint, that only the sum of $312.50 had been paid since the 24th day of May, 1941, and further admitted that no payments had been made since January 18, 1946. Defendant in his answer also set up as a defense, the fact that the daughter, Leatha Fulte, became employed in May, 1943, and was thereafter self-supporting; that the son, Raymond Fulte, became employed in October, 1946, and was thereafter self-supporting; that on and after said dates of employment of the said children he, the defendant, was no longer obligated by said decree to make any additional weekly payments. Defendant in his answer, also asked for an accounting to determine as to the amount, if any, he was in default.

The plaintiff filed an amendment to her complaint, which alleged that she was not employed and had no income; that she had no means or money with which to pay her attorney; that she had a half interest in a small house in Shelbyville where she resided with her present husband, who purchased the property. She further alleged that the defendant owned extensive interests in farm land in Shelby county, being upwards of 200 acres; that he was engaged in farming and owns livestock, farming implements, growing crops, and so forth; that the defendant was worth upwards of $40,000, and asked an order of court to require the defendant to pay the sum of $150 as and for her attorneys' fees for services rendered.

The defendant filed no answer nor denial to the amendment to the complaint.

After a hearing before the court, the court found the defendant guilty of contempt, and committed him to the county jail of Shelby county for 120 days, or until he purged himself of said contempt by paying to the clerk of the court for the use of the plaintiff, the sum of $1,632.76 and costs of the proceedings; and found that under the order of March 24, 1941, the sum of $783.26 was due to the plaintiff, plus the sum of $3 per week for 390 weeks from March 24, 1941 to September 24, 1948, less the sum of $320.50, which had been paid since March, 1941, leaving a balance due of $1,632.76. The court made no allowance for interest on the sum due since March, 1941, and made no allowance for attorneys' fees for the plaintiff.

The plaintiff moved the court for an order granting her leave to amend her petition by inserting therein that the correct amount due the petitioner on June 8, 1950, was the total sum of $2,228.72. The motion was denied.

The defendant brings this appeal from the above mentioned order, and the plaintiff gave notice of a cross-appeal therefrom.

The defendant by his appeal claims that he was not in contempt of court, that he owed the plaintiff no money under the modified decree due to the emancipation of the two children from parental control because they became employed and collected their own earnings.

It is true, as the defendant points out in his brief and argument, that the power of the court to enforce the payment of alimony and money due under support decrees, by imprisonment of the defendant for contempt of court is limited to a wilful and contumacious refusal to obey the order of the court. Mesirow v. Mesirow, 346 Ill. 219. The facts in the instant case certainly display a wilful and contumacious refusal to obey the order of the court, and the case comes within the rule and definitions of the words "wilful" and "contumacious."

Under the facts and circumstances as shown by the evidence, the trial court could come to only one conclusion, and that was that the defendant was in arrears in his payments; that he was financially able to meet the obligation and that he had wilfully defied the order of court without any legal excuse, and was in contempt of court.

The defendant admitted that he had paid only the sum of $312.50 since May 24, 1941. He seeks to excuse himself from further payments on the ground that his children had emancipated themselves from parental support by becoming employed. Defendant contends that Leatha became employed in the month of May, 1943, was self-supporting from that date until the date of her death on January 23, 1947, and that Raymond became self-supporting by securing ...

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