Appeal from the Superior Court of Cook county; the Hon. HARRY
G. HERSHENSON, Judge, presiding. Judgment affirmed.
JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 9, 1960.
This is an appeal from an order requiring defendant to pay $150 per month for the education of his daughter for a period of four years. The question presented to us is whether in a divorce case a parent may be ordered to provide a college education for an adult child.
The parties to this action were divorced by decree of the Superior Court on July 28, 1943. Plaintiff was awarded custody of the daughter, the sole issue of the marriage, and defendant was ordered to pay child support of $8 per week. The decree was modified August 19, 1954, increasing payments to $50 per week. On December 18, 1958, when the child was seventeen, the court again modified the decree, requiring defendant to pay $150 per month, as before stated.
The evidence shows that defendant has an interest in a business trust which compensates him at the rate of twenty-two and one-half percent of the earnings of the business during the life of his mother. After her death, his interest increases to thirty percent. In the event the business is discontinued or sold during his mother's lifetime, defendant becomes entitled to twenty-two percent of the proceeds, but if it is discontinued or sold after her death, his interest increases to thirty percent. His gross income in 1957 was $39,000, and his estimated gross income for 1958 was $36,000. His income after taxes was about $28,000. Defendant estimated the worth of the business to be in excess of $400,000, and he has property worth about $56,000. He has remarried, and there are two children of the second marriage, nine and thirteen years old. Linda, the child of the broken marriage, has shown an aptitude for higher education and training. She has maintained an S average (the highest grade) throughout high school, and stood third in a class of 130.
Defendant makes two points. The first is a constitutional question, to-wit: that the order of the trial court is a violation of the separation of powers clause (Article III) of the Constitution of Illinois. This court cannot entertain such an assignment of error. Defendant, having taken his appeal to this court instead of the Supreme court, is deemed to have waived the constitutional question. Chasteen v. City of Decatur, 21 Ill. App.2d 496, 158 N.E.2d 446 (1959); Rust v. Holland, 15 Ill. App.2d 369, 146 N.E.2d 82 (1957); Anderson v. Industrial Molasses Corp., 11 Ill. App.2d 210, 136 N.E.2d 536 (1956). We may therefore proceed directly to his second point, that is, whether the findings and orders of the court are contrary to the provisions of the Divorce Act.
It is true that the general jurisdiction of equity does not encompass divorce and that the court looks to the statute for the measure of its authority to grant a divorce. Jurisdiction over children of broken homes, however, is not dependent upon statutes, as defendant contends, but is an inherent power of equity. Over one hundred years ago our Supreme court expressed this principle in Cowls v. Cowls, 3 Gilm. 8 Ill. 435 (1846) at page 438:
"It becomes clear, then, that our legislature by providing that `when a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just,' has conferred no new authority or jurisdiction upon the court. It was by its original jurisdiction clothed with the same powers before."
We followed the rule, thus expressed, in Cardenas v. Cardenas, 12 Ill. App.2d 497, 140 N.E.2d 377 (1956), in which we held that a court of equity had jurisdiction to provide for the care and custody of children born to a marriage which was subsequently annulled. Petition for leave to appeal was denied in that case.
[4-7] The question, therefore, should be stated thus does the statute relating to divorce, custody and support in any way diminish the inherent power of equity over children of broken marriages? The pertinent portions of the Divorce Act, Ill. Rev. Stat., ch. 40, sec. 19 (1959) provide that the court upon granting a divorce:
". . . may make such order touching . . . care, custody and support of the children . . . as, from the circumstances of the parties and the nature of the cases, shall be fit, reasonable and just, . . . [and] may, on application, from time to time, make such alterations in . . . the care, custody and support of the children, as shall appear reasonable and proper."
Defendant's conclusion that we must interpret the word "children" to mean minor children is not supported by the language of the statute nor attendant circumstances. The term "children" is ambiguous. It may mean a young person or offspring of any age. See Black, Law Dictionary (4th ed. 1951); Funk & Wagnall's New "Standard" Dictionary (1958). Its use must be examined and its meaning determined within the context of the particular statute. As was stated in Strom v. Strom, 13 Ill. App.2d 354, 142 N.E.2d 172 (1957) and Freestate v. Freestate, 244 Ill. App. 166 (1927), the word "children" in the statute is not qualified by any word or phrase limiting its application to minor children. (Contra, Rife v. Rife, 272 Ill. App. 404 (1933), distinguished in Strom v. Strom, supra.)
The Divorce Act does not set forth definitions from which its intendment with regard to the word "children" may be ascertained. Freestate v. Freestate, supra, was decided in 1927. Strom v. Strom, supra, was decided in 1957. In both cases it was held that the word "children," as it appeared in the Divorce Act was not limited to minor children. The legislature has been in session twice since the Strom decision and has not seen fit to disturb this interpretation, although, as defendant says, the case quickly became well known. When a court or administrative agency construes a statute and that construction is not disturbed by subsequent legislation on the point decided, it is presumed that the court's construction is in harmony with legislative intent. Bell v. South Cook County Mosquito Abatement Dist., 3 Ill.2d 353, 121 N.E.2d 473 (1954); People ex rel. Spiegel v. Lyons, 1 Ill.2d 409, 115 N.E.2d 895 (1953).
The construction of a statute is in modern times moving away from the stubborn determination to extract a meaning when obviously none was intended. In the instant case, the statute was passed more than one hundred years ago. At that time, only a fraction of the population attended high school, and a fraction of that fraction attended college. The legislature had no intention, and expressed none in this Act, with respect to the age at which a parent was exonerated from liability for child support and care. Its attention was focused on the question of jurisdiction, and its purpose was to make clear that jurisdiction included the function of providing for the care, custody and support of children. In other words, its collective mind was directed not to the detail of age, but to the general question of a divorce court's jurisdiction. In the days when this Act was passed, children went to work long before they reached their majority. But even then, education beyond the high school level for children of average or better scholarship was the common aspiration of American parents. Today, it is regarded as a necessity. In a normal household, parents, except as limited by compulsory education laws, direct their children as to when and how they should work or study. ...