Foss v. Foss

Mr. Justice Scholfield delivered the opinion of the Court:

On the 26th of October, 1880, appellant filed his bill for divorce against appellee, in the circuit court of Cook county, charging her with desertion. On the 17th of November, next following, she entered her appearance in the cause, and upon the 7th of December, then next, the court extended her time to file an answer until the 12th of that month. No answer was filed by that time, and on the 17th of the same month appellee filed her petition, supported by her affidavit, for solicitor’s fee and for alimony pendente lite. Appellant filed his affidavit in opposition thereto; but the court thereupon decreed that appellant pay appellee $200 for solicitor’s fee, and $19.23 per week, for the support of herself and child, pending the suit, the first installment to be paid on the 18th of December, 1880, and the subsequent installments weekly thereafter. From this decree appellant took the case by appeal to the Appellate Court for the First District, which court affirmed the judgment of the circuit court, and this record brings that judgment before us for review.

Our statute provides, (Rev. Stat. 1874, chap. 40, sec. 15,) that “in all cases of divorce the court may require the husband to pay to the wife, or pay into the court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for a divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit, ” etc.

This allowance is discretionary; but as we have held, was the exercise of the same power, under the principles of the common law. It is a judicial, not an arbitrary, discretion that is to be exercised, and it is the subject of review upon appeal or error. Foote v. Foote, 22 Ill. 425 ; Blake v. Blake, 80 id. 523 .

The first ground of reversal urged is, the circuit court had no right to grant temporary alimony before appellee had filed her answer. This was wholly within the discretion of that court. The petition for temporary alimony contained an explicit denial of the truth of the charges alleged in the bill, and it was sworn to by appellee. The effect of the action of the court was to again extend time in which appellee might answer; but with or without answer, the court is never authorized to decree a divorce until the cause of divorce has been fully proven by reliable witnesses. Rev. Stat. 1874, chap. 40, sec. 8.

The next point attempted to be made against the decree is, the circuit court had no right to grant alimony pendente lite, for the support of the child. This is untenable. “The court may, on the application of either party, make such order concerning the custody and care of the minor children of the parties, during the pendency of the suit, as may be deemed expedient, and for the benefit of the children. ” (Rev. Stat. 1874, chap. 40, sec. 13.) Power to make an order concerning the care of minor children, very clearly includes power to make an order for the payment of a sum reasonably necessary for their support; and the court having made an order for the payment of a sum to appellee, on account of the support of the child, did, in effect, adjudicate that she have the custody and care of the child during the pendency of the suit.

The next and last ground of reversal insisted upon is, that the allowance of the circuit court is excessive. An appellate court, we have said, is only authorized to reverse on this ground where the difference in judgment between the appellate and circuit court is strong and decided. Foote v. Foote, supra. Here, in addition to the judgment of the circuit court, we have the concurring opinion of the Appellate Court, composed of impartial and able judges, and unless quite clear in our conviction, that the allowance is so excessive as to amount to an abuse of discretion, we would not be warranted in disturbing the decree. We are not thus clear. The allowance is but temporary, and, at most, will extend but for a brief period, and will, at all times, be subject to modification to meet any new or unforeseen circumstances. Appellee’s present necessities are shown to be great, and appellant is, tacitly, at least, conceded to be worth $45,000 in property, that fairly managed must be productive of a considerable income. Although full liberal, as it appears to us, we can not say that the allowance is excessive.

The decree of the Appellate Court is affirmed.

Decree affirmed.