110 Ill. 279 | Ill. | 1884
delivered the opinion of the Court:
We think there was error in not sustaining John Dawson’s second and third exceptions to the master’s report. The decree directed the master “to inquire and report as to the value of the defendant’s estate, and the amount of his income therefrom, at the time of the filing the petition.” The petition was filed on the second day of November, 1882, but the report of the master is based on the income derived, or, rather, that he presumed would be derived, from the defendant’s estate after that time.
Counsel for Jane Dawson only claims, as we understand his position, that the evidence shows a net income from John Dawson’s estate for the year 1882,—i. e., prior to the 1st of November, 1882,—of $330.56 per month, and out of this amount the decree for alimony gives her $150 per month,— only a small fraction less than one-half,—in addition to imposing all the costs and expenses of the litigation upon him. Adding to this all the household furniture, valued at from $3000 to $5000, and taking into consideration that none of the property from which the income is derived was obtained from Jane Dawson, it would be difficult to comprehend why, on that basis, the allowance should be regarded as unreasonably low.
The estimated income after November 1, 1882, is not only-in direct opposition to the direction of the decree, but it is not sustained by the evidence, as we understand it, but is purely conjectural. The master’s report, in this respect, is sought to be sustained by two modes of calculation,—one based on what is assumed as the fair result of the evidence as to the values of rent to be paid, which gives a monthly gross income of $496.87; and the other based on a stipulation filed by the parties at the time the original decree was rendered, whereby it was admitted by John Dawson that his gross income was $380 per'month, and adding thereto $200 per month for the increased rental value of eight stores or stalls at the corner of Jackson and. Clinton streets. Neither of these estimates takes into account the necessary and reasonable expenses of the property, and yet it is obviously impossible to make a just estimate of what a party is able to pay from an income without taking them into account. Taxes and assessments must be paid, buildings must be renewed or repaired from time to time, and existing liens, if any, must be renewed, or, at least, the interest kept down. To illustrate: From a gross income of $500 per month, costing $250 per month to produce it, it is evident there can be but a capacity of paying $250 per month.
But since the year commencing November 1, 1882, would not expire until November 1, 1883, it is impossible that the expenses and costs of producing that rent, as well as the fact „ of the actual collection of the whole amount of rent, can be certainly known before that time,—yet all the evidence taken in this cause was taken on December 12, 1882, January 18, 1883, and February 3, 6 and 10, 1883, respectively, the last more than eight months before the expiration of the year. Moreover, the tenants occupying the premises testify to an unwillingness to continue paying the increased rent, and since they are only tenants from month to month, they might at any time refuse to continue to do so, and after giving the ■ requisite notice, terminate their relation. There is evidence, also, that the property on the corner of Clinton and Jackson streets, from which the chief prospective increase in rents is to be derived, is in an unsafe condition, and that it will cost at least $2000, to repair the premises. In addition to this, the same property is incumbered by a trust deed to secure the payment of $10,000, and accruing interest at six per cent per annum, executed in 1881, and before Jane Dawson filed her bill for divorce. The evidence seems to show that this indebtedness was incurred in good faith. In the chief part of the property from which the income is derived, Dawson is in partnership with one Miller, and Miller testifies that Dawson’s net income for the year 1882, counting up to December 1, 1882, was only $299.60 per month, and that for -1881 it was $236.T2 per month. Dawson’s estimate is still less for the year 1882,—$249.
The master seems, in his report, to lay some stress upon an admission of John Dawson that he had $10,000 of Cook county bonds, testified to by Jane Dawson and her daughter. We think this can cut no figure in the present proceeding.. John Dawson denies, on oath, the ownership of any personal property other than his wearing apparel, and Jane Dawson made the allegation of the same admission, coupled with the charge that he had subsequently wasted and squandered the whole $10,000, in her bill for divorce, which was sworn to by her, and Dawson did not then claim to have such bonds. If they were then spent, they can not now augment the amount of his estate, so as to form the basis of an additional allowance.
There is no pretense that John Dawson has acquired any additional property yielding an income since the decree of divorce was rendered, and the charge in the petition that he “did not fully disclose all his property in the divorce suit,” is wholly unsustained by the evidence. Nor is there any proof that he has become more reckless in the management of his property since the rendering of the decree of divorce. The amount of alimony seems to have been agreed to, at the time, with full knowledge on the part of Jane Dawson of every fact material to a comprehension of her rights. She fails to show that she was deceived or misled in any respect. The amount decreed her was something more than half her husband’s net income, and on a fair consideration of the evidence it still bears substantially that relation to his income. He, meanwhile, has the burden of paying all taxes and assessments, rebuilding, repairing, renting, collecting, etc. We think she should be satisfied. The effect of the decree in first giving her the care, custody, etc., of the two children, and then giving her $150 per month for alimony, was, that that amount included all to which she was entitled from her husband’s estate. She sought the care, custody, etc., of her children, and the court gave them to her, and then gave her the $150 per month as a support. By asking and assuming the care and custody she assumed the duty and obligation of support. It would be unprecedented, especially where, as here, the wife brings no estate to the husband, to give'her, on divorce, more than one-half of his net income, and then charge him with an additional amount to be paid her for the nurture and education of her children.
We think there was no sufficient reason for the filing of this petition. So far as there was a mistake in the decree there was no disposition to resist its correction. It might have been done without expense,—at least it was incumbent on the petitioner to have first made the effort to have had it so done. And there was no material change in the condition of the parties after the decree for divorce was rendered. Under all the circumstances, we think Jane Dawson should pay her own attorney’s fees and costs in this proceeding. The decree below increasing the amount of alimony to be paid by John Dawson, and directing that he pay $200 to Frank Johnson, her solicitor, is reversed. The costs incurred herein by John Dawson will be taxed against him, and those incurred by Jane Dawson will be taxed against her.
Decree reversed.