APPEAL from the Circuit Court of Macon County; the Hon. MARTIN
E. MORTHLAND, Judge, presiding.
MR. CHIEF JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
On January 22, 1946, the plaintiff, Fern Pope, filed a complaint for separate maintenance in the circuit court of Macon County, alleging that in August of 1945, her husband had forced her to leave their residence, and that since that time she had been living separate from him without fault on her part. Her husband denied this allegation, and filed a counterclaim for divorce in which he alleged that she had wilfully deserted him in August of 1945. On June 4, 1947, the court entered a decree finding that the plaintiff had been living separate and apart from her husband since August 21, 1945, without her fault, ordering the defendant to pay his wife $225 a month for her support, and dismissing his counterclaim for want of equity.
Shortly thereafter, on August 27, 1947, the defendant filed a complaint for divorce in a Nevada district court, alleging that for the year preceding the complaint his wife had deserted him. She was notified of the action in Illinois, but did not appear. The defendant testified that the date upon which his wife had deserted him was August 21, 1945. Neither the complaint nor the report of proceedings shows that the defendant advised the Nevada court of the prior litigation in Illinois, and it is not suggested that he did so. On October 29, 1947, the Nevada court granted the divorce. It awarded no alimony, and made no reference to the Illinois decree.
On February 18, 1953, the plaintiff filed a petition in the circuit court of Macon County to recover past due support payments totaling $15,232, together with the sum of $2114.62, representing interest at five per cent on each payment from the time it became due. In his answer the defendant challenged both the right to interest and the right to any payments which accrued after the date of his divorce. The circuit court entered a decree based upon defendant's contentions, and the plaintiff has appealed directly to this court.
There is no question here of the jurisdiction of the Nevada court to grant the divorce so far as the defendant's domicile in Nevada is concerned, since the plaintiff, although denying such domicile in her reply below, assigned no error on this point, and offered no evidence to overcome the presumption of domicile which we are required to give the foreign decree. See Williams v. North Carolina, 325 U.S. 226.
In seeking reversal, the plaintiff advances two general contentions. The first is that the Nevada decree is entitled to be given no effect at all, even as to marital status, because the Nevada court itself failed to give full faith and credit to a prior determination in Illinois that she had not deserted her husband, and because his failure to inform the Nevada court of the Illinois proceedings, and in particular of the dismissal of his counterclaim, amounted to fraud. The second is that under the holding in Estin v. Estin, 334 U.S. 541, even if the ex parte Nevada decree must be regarded as a valid determination of marital status, it cannot be treated as destroying the wife's right to support payments without a violation of due process.
Plaintiff's contentions, rejected by the trial court, raise substantial questions involving a construction of the State and Federal constitutions which have not hitherto been settled by the decisions of this court and which give us jurisdiction of this direct appeal. Ill. Rev. Stat. 1953, chap. 110, par. 199; Jones Ann. Stat. 104.075; Van Dyke v. Illinois Commercial Men's Ass'n, 358 Ill. 458.
We do not, however, find it necessary to consider the effect of the prior Illinois adjudication or of the defendant's failure to disclose it to the Nevada court, (see Dunham v. Dunham, 162 Ill. 589; Atkins v. Atkins, 386 Ill. 345,) for we hold that the Nevada decree, although regarded as a valid determination of the parties' capacity to remarry, does not have the effect of terminating the plaintiff's right to support. The plaintiff's contention that the due process clause precludes our giving the Nevada decree that effect raises a difficult and serious constitutional issue. Her argument is that the lack of personal jurisdiction in Nevada to adjudicate what the United States Supreme Court characterized as property rights would render the Nevada decree void in that State for want of due process, and that for Illinois to enforce such a decree, or indeed to terminate her rights through the medium of any ex parte proceedings, would therefore be equally unconstitutional. We need not consider whether such far-reaching implications are to be drawn from the Estin case, (see Sutton v. Leib, 342 U.S. 402,) since we do not construe the Separate Maintenance Act as requiring that result.
The statute with which we are concerned provides that "Married men or women who, without their fault, now live or hereafter may live separate and apart from their wives or husbands may have their remedy in equity * * * against their said wives or husbands * * * for a reasonable support and maintenance while they so live or have so lived separate and apart." Ill. Rev. Stat. 1953, chap. 68, par. 22; Jones Ann. Stat. 109.189.
This legislation recognizes the ancient common-law obligation of the husband to support his wife even when she was living away from him. It reflects dissatisfaction with the inadequate remedies afforded by the common law for the enforcement of this obligation. (Ross v. Ross, 69 Ill. 569.) The manifest inadequacy of the common-law remedy led courts of equity in some States to grant decrees for separate maintenance even in the absence of express statutory authorization. (See Lang v. Lang, 70 W. Va. 205, 73 S.E. 716; Edgerton v. Edgerton, 12 Mont. 122, 29 P. 966.) In other States, including our own, the closing of the gap between right and remedy had to wait upon legislative action. Trotter v. Trotter, 77 Ill. 510; Ross v. Ross, 69 Ill. 569.
The special concern of the State in securing support for the wife has also been manifested in other statutes and rules of decision intended to enforce the husband's obligation. Quasi-criminal proceedings are provided to compel support, (Ill. Rev. Stat. 1953, chap. 68, pars. 24-33,) and the legislature has undertaken to prevent the husband's evasion of his duties by the device of removing to another State. (Ill. Rev. Stat. 1953, chap. 68, pars. 50 et seq.; Jones Ann. Stat. 98.55 et seq.) Our divorce statute has been amended to make possible the securing of alimony in a separate action following divorce proceedings in which personal jurisdiction over the husband could not initially be obtained. (Ill. Rev. Stat. 1953, chap. 40, par. 19; Jones Ann. Stat. 109.186; Laws of 1947, p. 818, sec. 1; cf. Kelley v. Kelley, 317 Ill. 104.) And we have refused to enforce contracts between husband and wife by which the former is released from his duty of support. Lagow v. Snapp, 400 Ill. 414; Berge v. Berge, 366 Ill. 228; Vock v. Vock, 365 Ill. 432; VanKoten v. VanKoten, 323 Ill. 323; Lyons v. Schanbacher, 316 Ill. 569.
Defendant cites no decision of this court which holds that a separate maintenance decree is automatically terminated by a decree of divorce entered by a court which lacks personal jurisdiction over both spouses. Knowlton v. Knowlton, 155 Ill. 158, (cf. Atkins v. Atkins, 386 Ill. 345, 358,) goes no further than to deny the former wife's right to commence an action for separate maintenance following a foreign divorce obtained by the husband. It appears, moreover, that the decision was not based on Illinois law but on a supposed requirement of the full faith and credit clause which may no longer exist. See Thompson v. Thompson, 226 U.S. 551; Estin v. Estin, 334 U.S. 541, 546, note 4.
We may, of course, put to one side those cases in which the divorce was obtained at the instance of the wife (Harper v. Rooker, 52 Ill. 370; Earles v. Earles, 343 Ill. App. 447; but cf. Darnell v. Darnell, 212 Ill. App. 601;) and those where, as defendant, she appeared or was personally served. (Buck v. Buck, 337 Ill. App. 520; Shaw v. Shaw, 332 Ill. App. 442.) Where there is an opportunity for the wife to contest the merits and to claim by way of alimony the equivalent of what she has been receiving in support money, there may be reason to limit her rights against the husband to what the divorce court has granted.
Certainly the statute, considered as an isolated text, does not compel the result for which defendant contends. While the word "they" in the final clause might perhaps be taken to incorporate a requirement of continuing matrimonial status, we would hesitate, on the basis of language no more explicit than this, to read into the act a requirement so hostile to its general purpose. Such a construction would favor the husband who is comparatively well-off and penalize the wife who is most in need of support, thus robbing the statute of its value in those cases where it would be of greatest use. Nor is the question resolved simply by characterizing the right to support as an "incident of marital status." Marriage is an aggregate of rights and duties. A decree of divorce enables the parties to contract a new marriage; that it does not necessarily relieve them of all the ...