Appeal from the Superior Court of Cook county; the Hon. GEORGE
M. FISHER, Judge, presiding. Order affirmed.
JUDGE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 15, 1957.
The primary question presented to us on this appeal is whether a court of equity, having entered a decree of annulment of a marriage, has jurisdiction with respect to matters relating to the care and custody of a minor child. It is a matter of first impression in Illinois.
On August 27, 1954, plaintiff filed a suit for separate maintenance, later amended to divorce, alleging that she had been married in Chicago, January 6, 1949, and charging defendant with cruelty and failure to support. In an answer filed September 20, 1954, defendant denied the charges, and on April 1, 1955, filed a counterclaim charging that plaintiff had entered into an earlier marriage in Mexico in June 1940 which was not dissolved until February 9, 1949, a little over a month after plaintiff and defendant had entered into their marriage. The counterclaim prayed for annulment or divorce and for the custody of a minor child born during their alleged marriage. That portion of the counterclaim praying for divorce was stricken upon order of the court August 8, 1955, and on September 30, 1955, the court entered a decree dismissing plaintiff's complaint for want of equity, decreeing annulment of the marriage as prayed in the counterclaim, and declaring that the child of the parties was and shall continue to be legitimate. On December 8, 1955, defendant petitioned the court for an order declaring his rights and duties concerning the minor child. On January 23, 1956 a motion by plaintiff to strike the petition was denied. Plaintiff electing to stand on her motion, the court entered an order granting defendant the right of visitation and ordering him to pay $12.50 per week for the support of the child. It is from this order that the appeal is taken by plaintiff, who does not desire the support money and is opposed to defendant's having a right of visitation.
Plaintiff contends that no order respecting child care and custody can be entered in an annulment suit and relies on three cases, Thomas v. Thomas, 250 Ill. 354, 360; Bateman v. Bateman, 337 Ill. App. 7, 17; and Luczynski v. Luczynski, 327 Ill. App. 548, in support of her position.
In Thomas v. Thomas, supra, the defendant had filed a cross bill solely for the purpose of obtaining the care and custody of two children. The court overruled a demurrer to the cross bill and the plaintiff electing to stand by her demurrer, the cross bill was taken as confessed. The plaintiff moved the trial court to dismiss her bill of complaint, which the court denied. On appeal, the Supreme Court held that the bill for divorce should have been dismissed when the plaintiff so moved, and nothing would then remain but the cross bill seeking the care and custody of the children. This standing alone could not, the court said, be made the basis for equitable jurisdiction. Mr. Justice Carter dissented, relying upon the early case of Cowls v. Cowls, 3 Gilman 435 (1846). The other two cases cited by plaintiff follow the Thomas case.
These cases do not constitute a precedent for plaintiff's position. They are authority only for the proposition that an order with respect to child care and custody cannot be entered where there is no decree affecting the marital status of the parents. Even to that extent they have not been adhered to literally, Cowls v. Cowls, supra, being quoted with approval to support the contrary position. In Parker v. Parker, 335 Ill. App. 293 (1948) the parents had been divorced in Indiana and custody of the child granted to the mother, but as the father was outside the jurisdiction of the court and was served by publication, no order for support was entered. Thereafter a petition in equity was filed in Illinois (where personal service was had on the father) on behalf of the child by the mother as next friend, solely for the purpose of requiring a contribution to support. The trial court held that a court of equity could not take jurisdiction of a petition for the support of a minor child except as incidental to a suit for divorce. The Appellate Court (citing Cowls v. Cowls, supra) reversed the order and directed the trial court to hear the petition on its merits.
While there is no statute with respect to annulment, the proceeding is recognized by the courts of this state and its status has been defined in People ex rel. Christiansen v. Connell, 2 Ill.2d 332, at pages 341-342, as follows:
"While in Illinois we have no act of the legislature expressly authorizing the courts to grant annulments and while the courts of equity of this state have gradually assumed jurisdiction to grant annulments in the absence of such a statute, the practice extending over a great number of years, we doubt not, in view of the considerations of public policy involved, that the legislature has a large measure of power which it may exercise in the regulation of such proceedings, and for the purpose of this decision it may be conceded without deciding that the origin of authority to annul is legislative in nature. Such a view accords with the history of the annulment action in England, and the existence of special statutes regulating annulment in many of the States."
A suit for annulment thus has a definite place in our judicial structure, a curious one to be sure, in that like the mule it is without pride of ancestry, but unlike that useful animal, progeny is plentiful. Does it not follow that having taken jurisdiction of an annulment proceeding, the court should have power to provide for the care of the children involved?
As early as Cowls v. Cowls, 3 Gilman 435 (1846) our courts have emphasized the importance of equity's role in providing for the care of children when marital ties are severed. In Thomas v. Thomas, supra, the case relied on by plaintiff, the court said the filing of the original bill for divorce brought the children within the jurisdiction of the court, that a cross bill was germane in seeking to have the care and custody of the children determined, even though the complaint did not so pray, and that at any time after the bill was filed questions relating thereto could have been brought before the court. While this had its basis in the statute relating to divorce, the opinion reveals the extent to which courts consider the care and custody of children an essential part of their function in a suit that seeks to sever the marital relationship. To the same effect is Parker v. Parker, 335 Ill. App. 293, 301, wherein Mr. Justice Bristow speaking for the court said, p. 301:
". . . the cases are replete with declarations of the law that courts of equity have plenary jurisdiction over the persons and estates of infants, and that in cases where the rights of minors are concerned, they are the wards of the court, which will protect their interests. (Cowls v. Cowls, 3 Gilman, 435; Clarke v. Chicago Title & Trust Co., 393 Ill. 419; Swiney v. Womack, 343 Ill. 278, 287; Thomas v. Thomas, 250 Ill. 354). The petition herein presents the minor's right to support from her father, which right is independent of the obligations obtaining between her parents, and is, therefore, within the special province of the court of equity with its tradition of protecting the interests and estates of minors."
Such authority as there is in other states supports defendant's position that the court has jurisdiction in an annulment suit to provide for the care and custody of a child. Henderson v. Henderson, 187 Va. 121, 46 S.E.2d 10 (1948); Stone v. Stone, 193 Okla. 458, 145 P.2d 212 (1944); Bass v. Ervin, 177 Miss. 46, 170 So. 673 (1936); Barker v. Barker, 31 Wn.2d 506, 197 P.2d 439 (1948); Peterson v. Peterson, 164 Wn. 573, 3 P.2d 1007.
In Henderson v. Henderson, supra, the Supreme Court of Virginia held that the "right of a father to have his marriage annulled permits him to be relieved of his obligation as a husband, but does not permit him to rid himself of his obligations as a father." After holding that the child was legitimate under the provisions of the Virginia Code, the court held it was proper for a court upon annulling a marriage to make such further decree as it deemed expedient for the care, custody and maintenance of an infant child of the parties. While this was supported by an interpretation of the statutes, it is apparent from a reading of the ...