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Cross v. Cross





APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding.


Lorene Cross, divorced wife of Charles M. Cross, instituted supplemental proceedings against his estate after his death to recover permanent alimony and part or all of her ex-husband's real and personal property, or a dower interest therein, on the ground that the questions of permanent alimony and property rights were expressly reserved for future determination in the original decree of divorce granted to her pursuant to her counterclaim.

The circuit court of Winnebago County entered a decree denying Lorene Cross, referred to as appellant herein, any interest in her deceased ex-husband's estate, either in the nature of alimony, dower, homestead, or any interest based on equitable considerations, and found the issues in favor of the decedent's second wife, Eleanor Cross, referred to as appellee in this cause, who was the sole legatee and devisee under his will. From that decree a direct appeal has been taken to this court, inasmuch as a freehold is involved.

The issue presented is essentially whether a divorced wife, after the remarriage and death of the ex-husband, may be entitled to all or part of the property owned by the deceased husband, either as an award of alimony in gross under section 18 of the Divorce Act (Ill. Rev. Stat. 1953, chap. 40, par. 19,) or on the basis of special equities in the property arising out of the circumstances, as provided in section 17 of that act, where all questions relating to alimony and property rights were expressly reserved for further determination by the terms of the divorce decree.

The established facts and sequence of pleadings and appeals appearing from the record indicate that appellant, Lorene Cross, married Charles Cross in 1920, and he moved into the home appellant had maintained for herself and her infant children from a previous marriage which had been terminated by the death of her husband. To this marriage with Cross appellant brought $800 in cash, and all linens, china and silverware which were used by the Cross family.

In 1921 appellant bore Cross a son, who was reared and educated to manhood and was killed in the service in World War II. In 1922 the family rented the house at 716 N. Horsman Street, Rockford, Illinois, from one Wheeler, who was Charles Cross's employer and family benefactor through the years. The property was purchased from Wheeler in 1928, and, unknown to appellant, title was taken by Cross alone. It was not until the separation in 1947 that the wife discovered the status of the title. The children grew up with the understanding from family conversations that the house belonged to both appellant and her husband. Appellant's daughter, who was about ten years old at the time the house was purchased, recalled that there was some conversation to the effect that "we are buying the house, it is going to be our home rather than Mr. Wheeler's." She explained that she recalled these circumstances relating to the purchase, since it was the occasion of her mother's going to work, which event was meaningful to the children because they were used to having their mother at home, and they were told that additional funds were needed for the purchase of their house.

Appellant's son also testified that during a family conversation concerning his class in high school business law, where they were studying joint tenancies and tenancies in common, Charles Cross had said that their property was held in joint tenancy.

In 1928, at the time the house was purchased, appellant went to work as a manager of a millinery store, earning between $20 and $30 a week, until the store went out of business in 1929. She then worked as a saleslady at Montgomery Ward's, earning $20 a week for some months, until she quit because of an appendectomy. Appellant again secured employment outside the home in 1934, when she worked at a confectionary store on the Wheeler Lumber Yard property, at a salary of $15 a week, and shortly thereafter the business was turned over to her by Wheeler, and she cleared about $100 a month net until the end of 1937.

All these earnings, together with the sums realized from insurance policies which she had carried on each of the three children, and the cash gifts from her husband and her father, who gave her $100 each Christmas for eleven years until his death in 1931, and gifts of $50 to $100 each time he visited her during the year, as well as the contributions appellant received from her son, Tom, while he was working and living at home, were used by appellant for paying current family and household expenses, or were made available to her husband for making payments on the mortgage or taxes, or for expenditures for maintenance of the house. Both the son and daughter testified to these circumstances and to the fact that appellant was not a woman who received gifts of luxuries, but usually money, which she devoted to the family needs rather than for her own benefit. There was further evidence from a disinterested witness that Cross stated before witnesses during the Christmas holiday of 1935 that if it had not been for "Mama," meaning Mrs. Lorene Cross, he would have lost the house.

Appellant and Cross were separated in 1947, a few years after their son was killed in action at Bougainville. The court granted appellant a divorce pursuant to her counterclaim on January 7, 1948, but as hereinbefore noted, that decree reserved for future determination the questions of alimony and property settlement, and allowed a temporary alimony at $30 a week based upon Charles Cross's earning of $6000 a year at that time. Shortly thereafter, on July 20, 1948, Cross married the appellee, Eleanor Cross, to whom he willed all his property as his sole legatee and devisee. He died on December 18, 1949, and his second wife has received the sum of $3600 from insurance policies.

After the death of Charles Cross, appellant filed a supplemental countercomplaint alleging the remarriage and death of her ex-husband, the terms of his will, her own employment, income and contributions toward the mortgage, taxes and expenses of the household during the years she was married to her husband, and her expenditures on the property made after the separation and divorce. The supplemental pleading asked that Eleanor Cross, individually and as executrix, be made a party to the action; that appellant be awarded the house in which she has been continuously living, title to which was in her deceased ex-husband; a portion of his personal property; alimony, and attorney fees. The court sustained only that portion of the supplemental complaint relating to her interest in the personal property and real estate, and rejected an amendment relating to a claim for dower, and an amendment seeking alimony in gross under section 18 of the Divorce Act. The court refused to admit all evidence on the issue of appellant's equitable ownership of the property, and then sustained a motion to dismiss the entire supplemental proceeding.

On a direct appeal from this decree, this court reversed and remanded the cause, directing the trial court to hear evidence on the issue of adjusting her alleged equities in the property, which she had pleaded in the original divorce action and in the supplemental complaint. (Cross v. Cross, 2 Ill.2d 104.) The circuit court, after a hearing pursuant to the remanding order, denied appellant any right, title or interest in her deceased ex-husband's estate, either in the nature of dower, homestead, alimony in general or in gross, or an interest based on equitable considerations.

On this appeal appellant contends that she is entitled to recover alimony or alimony in gross, notwithstanding the death of her ex-husband, on the ground that the questions of permanent alimony and property settlement were reserved in the divorce decree; and that the court has the power to convey the real property of the husband to the wife either in lieu of alimony or on account of her equitable interest therein, as well as the power to allow her attorney fees for services rendered in matters raised by a supplemental bill. Appellee, however, maintains that the right to alimony terminated on the death of Charles Cross; that section 18 of the Divorce Act has no application ...

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