Appeal from the Circuit Court of Winnebago county; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Decree reversed in part,
affirmed in part, and cause remanded with directions.
PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On December 17, 1946, the Circuit Court of Winnebago county granted a decree of divorce to appellant and awarded to her the custody of the two boys of the parties then aged four and one and one-half years, respectively. The cause was based upon the complaint and answer, and the decree provided that the parties retain their ownership of the residence property at 1806 North Court street in Rockford, but that plaintiff should have the right to the sole occupancy thereof and obligated her to pay the taxes and insurance thereon and keep it in a reasonable state of repair.
The decree further ordered the husband to "pay to the plaintiff for her support and for support of said children the sum of $60.00 on December 2, 1946, and a like sum on December 16, 1946, and a like sum on the 2nd and 16th days respectively of each and every month hereafter until further order of the court. Said payments shall be apportioned 1/3 for the support of the plaintiff and 1/3 for the support of each of said children until the further order of the court."
The record discloses that on November 9, 1950, appellant filed in the Superior Court of Los Angeles county, California, her verified complaint against the defendant alleging, among other things, that they were both residents of Los Angeles, California; that they were married on August 23, 1933, in Illinois; that two children were born as a result of said marriage, the children then being eight and five years of age respectively; that thereafter the parties were divorced on December 17, 1946, by the provisions of a decree of the Circuit Court of Winnebago county, Illinois. The complaint set forth haec verba this decree and averred that at the time of its rendition both parties were residents of Winnebago county, Illinois; that the defendant was duly personally served with process and that both parties were subject to the jurisdiction of the Winnebago County Circuit Court. It was further averred that said decree was a final decree and in full force and effect, not subject to modification as to accrued installments and that no appeal had been taken therefrom.
The California complaint further alleged that after the rendition of the divorce decree in Illinois both parties thereto came to the State of California; that up to July 3, 1950, plaintiff had the legal physical care, custody, and control of the minor children; that on that day, due to the illness of her father, who then lived in Illinois, it became necessary for her to return to Illinois and she did so, leaving the minor children with the defendant who verbally agreed to care for them during appellant's absence and return them to her upon her return from Illinois to California. Her complaint then alleged that she returned to California on September 29, 1950, and immediately requested appellee to permit her to have the children, which request appellee refused. Her complaint further alleged that the Illinois decree was entitled to full faith and credit and should "be established herein as a foreign judgment"; that there was due her under the Illinois decree the sum of $60 on August 16, 1950, and a like sum on the 2nd and 16th days of each succeeding calendar month, aggregating $300 at the time her complaint was filed.
The prayer of this complaint was that defendant "be enjoined and restrained from interfering with her care, custody or control of the minor children of the parties and from keeping said children from her and refusing to let her have said children and from instructing the school authorities to refuse to let plaintiff have said children; for judgment in the amount of $300.00 together with interest thereon at the rate prescribed by law; that judgment in Case No. 54581 in the Circuit Court of Winnebago County, State of Illinois, be established herein as a foreign judgment; for her reasonable attorney fees and costs herein incurred and for such other and further relief as to the court may seem meet."
The record further discloses that upon the filing of this complaint a summons for the defendant was issued and also the Superior Court issued a citation directing the defendant to appear and show cause November 14, 1950. Thereafter the following order, dated December 5, 1950, was entered by the presiding judge of the Superior Court where this action was pending, viz.: "Plaintiff's order to show cause re attorney fees, costs, alimony pendente lite, support and custody of children and restraining order comes on for hearing; plaintiff present with her counsel, Lawrence Paul Scherb and Grover Bossert by Lawrence Paul Scherb, and the defendant with his counsel, William E. MacFadden. Order to show cause is referred to Commissioner Brock for findings of fact. Plaintiff and defendant are sworn and testify. Defendant's exhibit a (letter) is admitted and filed. The court makes the following order: Custody of the minor children is awarded to the plaintiff, effective December 15, 1950, subject to defendant's right of reasonable visitation, which shall include defendant's right to take both minor children alternate week ends, commencing December 29, 1950, from 6:00 P.M. Friday to 6:00 P.M. Sunday. Both parties are restrained from removing the minor children, or either of them, from the state of California without a prior order of court. Defendant is ordered to pay to plaintiff $40.00 per month for the support of each child, making a total of $80.00 per month payable one-half on the 16th and 2nd days of each month hereafter, commencing December 16, 1950. Defendant is ordered to provide or pay for reasonable necessary surgical and hospital care for the minor children. The inclusion of such children in his present policy of insurance with Pacific Mutual shall constitute a compliance with this portion of the order. Defendant is ordered to pay direct to plaintiff's counsel $150.00 on account of attorney fees, payable $15.00 on the 2nd day of each month hereafter, commencing January 2, 1951, and continuing until paid in full. It is stipulated that further attorney fees and costs, if any, may be fixed at time of trial. Notice waived under section 259a CCP."
Thereafter on July 5, 1951, an order was entered by the California court, pursuant to the stipulation of the parties, eliminating the provision of the order entered December 11, 1950, restraining both parties from removing the minor children from California and in lieu thereof granting appellant the right to take the children to Illinois and also granting appellee the right to have the children one month each summer if he furnished the necessary care and defrayed the cost of transportation. No further hearing was ever had in California, and on November 3, 1955, the attorney for appellant requested the California court to dismiss appellant's complaint, and on November 7, 1955, an order to that effect was entered by that court.
On July 8, 1955, appellant filed the instant petition in the Circuit Court of Winnebago county, Illinois, which, after reciting the rendition of the decree on December 17, 1946, and its provisions, alleged that defendant paid the amounts as directed by said decree until August 1, 1950; that since that date defendant has paid only the sum of $40 on the 2nd and 16th days of the month and that by reason thereof defendant is in default in the sum of $2340. The prayer of the petition was for an order impressing a lien on the undivided one-half interest of the defendant in the residence property to secure the payment of said $2340 and for a lien to be impressed upon said interest of the defendant in said property to secure future payments of alimony and child support.
In his answer to the petition, defendant admitted that since August 1, 1950, he had paid only $40 on the 2nd and 16th days of each month but denied he was in default in any amount of money. As an affirmative defense he averred that he and respondent are both residents of the State of California and that in the year 1949 petitioner quit her occupancy of the residence property in Rockford and rented the same and moved to California and has received all rents from the Illinois property since that time. He further set forth the proceedings had in the Superior Court of Los Angeles county, California, including the order of that court which was entered on December 15, 1950, which awarded appellant the custody of the children and ordering respondent to pay $40 per month for each child, which order respondent avers that he has complied with.
Respondent also filed with his answer a cross-petition which, after re-alleging the matters set forth in his answer and affirmative defense, averred that petitioner had been gainfully employed for the past five years in California and prayed that the original decree of divorce be modified and the alimony award reduced. No reply was filed to the counter-claim, and the issues made by the pleadings were submitted to the chancellor who found that the order of the California court superseded the original decree of the Illinois court and is res adjudicata on the issues of alimony, custody and child support; that by accepting the benefits derived from the order of the California court for a period of almost five years, petitioner abandoned the provisions of the original Illinois decree. The court denied the prayer of the petition, dismissed it at petitioner's cost, and the record is before this court for review upon the appeal of Lila Hallett.
Counsel for both parties agree that under the authorities of this state the party for whose benefit an alimony order has been entered has a vested right thereto and past due installments of alimony cannot be modified by any subsequent order of the court which originally entered the order. (Stewart v. Stewart, 1 Ill. App.2d 283, 117 N.E.2d 579; Bush v. Bush, 316 Ill. App. 295, 44 N.E.2d 767; Wadler v. Wadler, 325 Ill. App. 83, 59 N.E.2d 505; Banck v. Banck, 322 Ill. App. 369, 54 N.E.2d 577; Shuff v. Fulte, 344 Ill. App. 157; Adler v. Adler, 373 Ill. 361.)
Counsel for both parties state that the only question presented by this record is whether appellant, by her conduct, is estopped from asserting her right to recover a money judgment against appellee for the past due installments awarded her under the provisions of the original Illinois decree. Counsel for appellee insists that this record discloses that appellant abandoned the benefits accorded her by the original decree and is now estopped from obtaining any advantage thereunder. Counsel state that they have been unable to find any cases directly in point but call our attention to Wolfe v. Wolfe, 303 Ill. App. 188, 24 N.E.2d 871, where the court refused to hold defendant in contempt of its decree which ordered defendant to pay $15 per week for child support when it appeared that the petitioner had orally agreed to accept $12.50 per week. In that case the court stated that where it appeared that petitioner had accepted the reduced amount for five years without protest, it would be unjust to hold the husband in contempt. In the instant case, appellant for almost five years accepted a smaller sum than that granted her by the Illinois decree, and it is argued that she was satisfied with the reduced sum because from the date the California court entered its order on December 11, 1950, until November 3, 1955, no further steps were taken by her in the California courts in connection with her complaint except on July 1, 1951, the California court approved a stipulation of the parties and modified the order of December 11, 1950, by permitting appellant to take the children to Illinois. In the instant case, however, there is no suggestion made or evidence offered to the effect that appellant ever agreed to take a lesser sum than that provided by the Illinois decree, and it does not follow that because she accepted the lesser sum she abandoned the provisions made for her by the final decree of the Illinois court.
No answer to appellant's complaint was ever filed by appellee in the Superior Court of Los Angeles County, California, and there was never a final hearing had. In the instant case, the chancellor found in his final order dismissing the petition that by filing her complaint in the California court and accepting the money the court directed to be paid to her, appellant abandoned the Illinois decree and is now estopped from insisting upon appellee complying with its provisions. In the several orders entered by the California court no mention is made of the Illinois decree or its provisions. Upon filing the verified complaint in the California court, an order was entered requiring appellee to appear and show cause, pending the trial of the action (1) why he should not be restrained from interfering with plaintiff's custody of the children; (2) why the custody of the children, during the pendency of the cause, should not be awarded the plaintiff; and (3) why appellee should not be requested to pay plaintiff a reasonable sum for attorney fees and for her support and the maintenance of the minor children during the pendency of this action. When defendant appeared in the California court in response to this citation, a temporary order was entered and that order provided: (1) that the order to show cause be referred to a Commissioner for findings of fact; (2) that the custody of the children be awarded the plaintiff effective December ...