27 N.E.2d 466 | Ill. | 1940
In July, 1935, Goldie Buehler filed a complaint against her husband, Albert C. Buehler, for divorce, charging cruelty; in the alternative she prayed for separate maintenance. There were four children named Carl, Barbara, Albert C., Jr., and Rose Marie, at that time of the respective ages of fourteen, thirteen, twelve, and eight. A decree was entered in favor of plaintiff on the ground of cruelty. Permanent alimony in her favor was fixed at $175 a month and an additional sum of $75 a month for the two children Barbara and Albert C., whose custody was awarded to her. She was given all the household goods and an equal interest with the defendant in the home occupied jointly by the parties. Defendant was also required to pay the taxes and interest on the mortgage on said premises, to be later reimbursed from plaintiff's share when the property was sold. The decree also provided it should not deprive or release the plaintiff's right of dower in any of defendant's property and that jurisdiction was retained over the parties to enforce the decree. Plaintiff's attorney was awarded the sum of $4500 solicitor's fees. The matter of the property and income of the defendant was referred to a master in chancery who held extensive hearings and recommended the amount of alimony and support money later fixed by the court.
The plaintiff appealed to the Appellate Court for the First District and that court increased the amount of solicitor's fees in the sum of $1500, allowed the sum of $1000 as fees to plaintiff's solicitor for services after the decree in *628 the superior court and including that in the Appellate Court, increased the permanent alimony of the wife to $300 a month and awarded the custody of the youngest child, Rose Marie, to the mother, with support allowance of $75 per month, instead of to the father. From this judgment of the Appellate Court Albert C. Buehler petitioned for and was allowed an appeal to this court and Goldie Buehler assigned cross-error because she was not allowed to amend the prayer of her complaint from divorce to separate maintenance after all the testimony was in.
No authority has been furnished authorizing the Appellate Court to fix solictors' fees where the wife prosecutes the appeal. The statute, (Ill. Rev. Stat. 1939, chap. 40, par. 16,) provides that in case of an appeal by husband or wife the court in which the decree or order is rendered may require the payment of money for his or her defense pending the appeal. The appeal to the Appellate Court was taken by the wife. The statute does not authorize alimony or solicitors' fees for appellant's solicitor but only for defense pending an appeal. In Jenkins v. Jenkins,
The superior court awarded the custody of the oldest child and youngest child to appellant. At the time of the decree Rose Marie was ten years of age and at the present time is almost thirteen. No facts appear in this record to indicate that the husband is an improper person to have the custody of any of his children. The oldest and youngest indicated a preference for him and the other two for the mother. Great stress was placed by appellee upon improper conduct of appellant with respect to association with his private secretary. Not only is there no allegation made in the complaint concerning this matter but there is very little proof to substantiate it. It is apparent that at the time of rendering the decision the trial judge thought either party might properly have custody of the children because, on the question of visitation, he directed that the parents so arrange matters that those awarded to the custody of the mother should spend one-third of their time with the father and the same with respect to the children awarded the father, and suggested that the parents arrange such times between themselves. It is well settled that in awarding the custody of a *630
minor child the best interests of such child must be primarily consulted. (Miner v. Miner,
The remaining question is that of the Appellate Court's action in increasing the amount of permanent alimony awarded the plaintiff. A separate hearing was had before a master in chancery to determine the financial ability of appellant to pay. An independent firm of auditors selected by plaintiff examined appellant's affairs and it is disclosed that in prior years, for illustration 1930 and 1931, he had a gross income from $25,000 to $35,000, but that during 1935 and 1936 this had become reduced to $12,000 to $13,500. His principal source of income was from two corporations controlled by himself, his mother and three brothers. He was paid a salary which was at times increased by dividends. These companies had suffered great losses as well as reduction in the amount of dividends. Part of these dividends were by contract required to be paid to a trust created for the *631
support of the mother, who had contributed her large interest in the corporation to the trust. Appellant's income depended almost entirely upon the prosperity of these corporations and his stock, because of being a minority interest, did not have a ready sale value. The interest on the mortgage covering his home was over $1000 a year, taxes on the home about $500 a year, income tax $600 a year, premiums on insurance payable to his estate $1700. In addition to the mortgage indebtedness appellant has a personal indebtedness aggregating almost $30,000, which would require some payments on principal or he would take the risk of losing, by legal process, all income over legal exemptions. It is claimed that appellant has covered up or hidden real assets and income but there is no substantial proof in the record to substantiate this statement. It seems to be based principally upon the fact that in prior years the corporations in which appellant was interested enjoyed great prosperity and with correspondingly greater income to appellant. The undisputed proof was that the salaries of the different members of the Buehler firm are reduced by the amount they spent in entertaining customers, which is considerable. If the award of the Appellate Court were affirmed as it affects the wife and two children it would mean that appellant would be compelled to support himself and educate and support two children and take care of all expenses and pay debts out of a sum little more than awarded the wife. Her rights in his real estate and personal property are preserved by the decree and as it is said in Harding v. Harding,
Upon cross-appeal, appellee claims the court erred in not permitting the plaintiff to amend her complaint so as to change the prayer of relief from divorce to separate maintenance. All of the testimony was taken before this motion was made. A great amount of time was expended and costs were incurred in trying a lawsuit based upon a prayer of divorce and permanent alimony as relief. It was within the discretion of the superior court to grant or refuse this amendment (Soltysik v. Soltysik,
It is our conclusion that the judgment of the Appellate Court on the matter of the appeal of appellant, Albert C. Buehler, be reversed and the decree of the superior court affirmed, and that the judgment of the Appellate Court and decree of the superior court with respect to cross-error assigned by Goldie Buehler in this court be affirmed.
Judgment reversed as to appellant. Judgment affirmed as to cross-error. *633