Lehmann v. Lehmann
1922 Ill. App. LEXIS 208
Ill. App. Ct.
1922
Check Treatment
Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is first contended by counsel for. respondent that the decree should be reversed because the marriage of petitioner to Quintard on June 24, 1915, in the State of New Jersey, was a remarrying within the intent and meaning of the words “remarry” and “remarriage” as used in the written agreements of March 26, 1915, and in the divorce decree of April 1, 1915, and such marriage forever relieved respondent from his obligation to pay alimony to petitioner for her own support.

The written agreements and the divorce decree provide in effect that if petitioner remarries her right to receive alimony for her own support shall then cease. The agreements were ratified and confirmed, after the entry of the decree, by the agreements of April 2 and April 4, 1915. We think that said words as so used were intended by the parties tó refer to the- ceremony or act of marriage as distinguished from the status or relation thereafter. In 26 Cyc. 825, it is said: “In the law ‘marriage’ may mean either the acts, agreements or ceremony by which two persons enter into wedlock, or' their subsequent relation created thereby.” Schouler in his work on Marriage, etc., 6th Ed., vol. 1, sec. 12, p. 16, says: “The word, ‘marriage’ signifies, in the first instance, that act by which a man and woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife; the act of union having been once accomplished, the word comes afterwards to denote the relation itself.” Again, speaking of the act by which parties unite in matrimony, he says (sec. 15, p. 20): “To this, the term ‘marriage’ is most frequently applied.” But, even if it be considered that the parties hereto, by the use of said wtirds in the agreements and the divorce decree, intended to refer to the marriage status after the ceremony had been performed, we think it must be held under the undisputed evidence in the present case that petitioner’s marriage to Quintard in New Jersey was a valid one in that State, and that their status there was that of a legally married couple, as also in the States of New York and Maine where they successively resided and lived together as husband and wife for a period of about fifteen months after the ceremony. In 12 Corpus Juris, p. 459, sec. 43, it is said: “The validity of a marriage, essential to the production of this status, is governed according to the great weight of authority, not by the law of the domicile of the parties but by the law of the place where the marriage is entered into, and the general rule is that a marriage valid where contracted is valid everywhere, except in cases within prohibited bounds of consanguinity, polygamous marriages, and marriages declared void by statute.” In Reifschneider v. Reifschneider, 241 Ill. 92, it is decided that the legality of a marriage taking place in a foreign State, when questioned in Illinois, is to be adjudged by the laws of the foreign State. In the present case it appears that petitioner was married to Quintard in New Jersey within three months after the granting of her divorce from respondent in Cook county, Illinois, at which times there was in force in Illinois a statute providing, in substance, that in every case in which a divorce has been granted neither party shall marry again within one year from the time the decree is granted, and that if either of the parties does marry again within such year “said marriage shall be held absolutely void.” (Ill. Stat. ch. 40, sec. 1a, Cahill’s Ill. St. ch. 40, ¶ 2.) In referring to such a statutory prohibition it is said in Schouler on Marriage, etc. (6th Ed., 1921, vol. 2, sec. 1930, p. 2062): “There is still considerable conflict and confusion of decision and theory as to the extraterritorial effect of a prohibition on remarriage. It was formerly the general view that such prohibitions had no effect whatever to prohibit marriages made in another jurisdiction, but the courts are gradually taking a less liberal view, and now such marriages, although still upheld where made, are discountenanced in the State of the domicile, especially if the parties went to another State for the purpose of avoiding the prohibition. * * * There are many decisions, however, holding that a State statute prohibiting the remarriage of a divorced person has no extraterritorial effect, so such a marriage celebrated in another State is valid, and that a prohibition on remarriage is only effective in the jurisdiction where the decree is granted and does not invalidate a marriage in another jurisdiction.” Counsel for petitioner contends that her pretended marriage to Quintard within a year after her divorce from respondent, being void in Illinois by virtue of said statute, was “no marriage,” and that, therefore, respondent was not relieved of his obligation to pay alimony to petitioner for her own support. The case of Wilson v. Cook, 256 Ill. 460, is especially relied upon. It appears from the opinion in that case that in November, 1906, Cook obtained a divorce from his wife in Clinton county, Illinois, and in February, 1907, was married in St. Louis, Missouri, to Mary A. Moore, who resided in Madison county, Illinois; that thereafter, until her death in January, 1912, they resided together as husband and wife on certain premises owned by her in Madison county; that'the administrator of her estate, Wilson, filed a petition in the probate court to sell the real estate on which they had lived to pay debts, making Cook a defendant and alleging that he claimed to be the husband of the deceased at the time of her death and was in possession of said real estate, claiming homestead and dower therein; and that said probate court upon the hearing found that Cook was not the husband of the deceased, and was not entitled to homestead and dower, and entered a decree of sale. On appeal the Supreme Court affirmed the action of the trial court. In said opinion (p. 463) the court, after quoting from said Illinois statute and mentioning that Cook’s marriage to Mary A. Moore was within one year from the time the divorce was granted, said: “Every State has the power to enact laws which will personally bind its citizens while sojourning in a foreign jurisdiction providing such laws profess to so bind them, and to declare that marriages contracted between its citizens in foreign States in disregard of the statutes of the State of their domicile will not be recognized in the courts of the latter State though valid where celebrated.” The court quoted at length from an opinion of the Supreme Court of Wisconsin (Lanham v. Lanham, 136 Wis. 360), which State has a statute similar to that of Illinois, wherein it is said in part (p. 365): “We hold that when persons domiciled in this State, and who are subject to the provisions of the law leave the State for the purpose of evading those provisions, and go through the ceremony of marriage in another State, and return to their domicile, such pretended marriage is within the provisions of the law and will not be recognized by the courts of this State.” We think that the facts of the Wilson case are to be distinguished from those of the present case. In the former it appears that Cook and Mary A. Moore, both residents of Illinois, left Illinois, were married in St. Louis, Missouri, and shortly thereafter returned to Illinois, where they resided together as husband and wife until her death. In the present case petitioner ceased being a resident of Illinois after the divorce decree was entered (if not prior thereto) and became a resident of the State of New York, and at the time of the Quintard marriage both she and Quintard were residents of New York, and continued to be residents of the State, or of the State x of Maine, as long as they lived together as wife and husband. Even though it be considered that such marriage was not a valid one in Illinois, it was valid in New Jersey, where performed, and also valid in their subsequent successive domiciles, and we think that under all the facts disclosed it should be held, contrary to the finding of the chancellor in the decree appealed from, that she remarried within the meaning of the words contained in said divorce decree of April 1, 1915, and in the written agreement entered into between the parties about that time,- and that she thereby elected to forfeit, and did forfeit, her right to receive alimony for her own support thereafter from respondent. As said in Stillman v. Stillman, 99 Ill. 196, 202: “It is her privilege to abandon the provision the decree of the court made for her support under the sanctions of the law, for another provision for maintenance which she would obtain by a second marriage, and when she has done so the law will require her to abide her election.” Counsel for respondent argue that petitioner’s contention (viz., that the Quintard marriage being void ab initio in Illinois by virtue of said statute* neither said marriage nor the subsequent cohabitation of the parties thereto amounts to a marriage) leads to the absurd conclusions that petitioner’s right to alimony, under the divorce decree and the written agreements, has never been interrupted but existed during the entire period of her cohabitation with Quintard, and that, if she had not seen fit to separate herself from him, she could continue to live with him as his wife and collect alimony from respondent in Illinois on the theory that she had never remarried. There is force in the argument. Furthermore, it appears that after the Quintard marriage and during the entire period of the cohabitation of the parties thereto, respondent did not pay, and petitioner did not demand, any alimony for petitioner’s own support as provided in the divorce decree and the written agreements. Both petitioner and respondent seemingly believed that the former had lost her right to receive such alimony from the latter and they acted accordingly, and thereby themselves practically construed their own agreements as to alimony. Such construction is entitled to great if not controlling weight and should, we think, be followed. (13 Corpus Juris, p. 546, sec. 517; Shall Bros. v. Peoria & P. U. Ry. Co., 276 Ill. 267.)

It is further contended by respondent’s counsel that the alleged oral contract between the parties of August 20, 1917, even if made, could not restore to petititioner the right to receive alimony under the provisions of the divorce decree and the written agreements, which right she had lost by reason of her marriage to Quintard, because (a) the alleged contract is invalid for want of a legal consideration and upon grounds of public policy, and (b) its alleged breach cannot be made the basis of a contempt proceeding. We think there is merit in the contentions.

It appears that shortly prior to the filing of petitioner’s annulment bill in August, 1917, she requested respondent to meet her at the office of her attorney in Chicago, which he did, and a conversation was there had between them, not in the presence of said attorney, regarding her proposed legal separation from Quintard. She testified that she told respondent she was going to secure either an annulment of the Quintard marriage dr a divorce, and that respondent said that he preferred an annulment. He testified that he offered no suggestions as to which course she should pursue, and that he had nothing to do with her subsequent action in filing the annulment bill. Petitioner further testified on direct examination that at this conversation respondent stated that if she obtained such annulment he would give her back her “alimony” of $400 per month as specified in the divorce decree of April 1, 1915. She, however, repeatedly stated on cross-examination that what he really said was that he would give her the same amount as he had previously given her before she married Quintard, viz., $800 per month. Respondent testified, in substance, that at this conversation she stated that, living apart from Quintard, she would require more than $400 per month for the support of the two children; that he told her he would give her $800 per month for the support of the children, and that nothing was said as to his giving her “alimony” as specified in said divorce decree. After the entry of the annulment decree respondent made monthly payments to petitioner of $800 for the benefit of the two children, which in January, 1919, he voluntarily increased to $1,000 monthly. On January 10,1921, petitioner filed a petition for a modification of the provisions of said divorce decree, asking that the allowance for the daughter, Casse Virginia, be increased from- $200 to $1,200 per month, and the chancellor after a hearing modified the decree so that on April 1, 1921, and monthly thereafter, respondent was required to pay for the support and maintenance of said daughter $650. It seems strange that, if such a verbal contract was made between the parties as petitioner testifies was made about August 20, 1917, no mention thereof was made in said petition and no order of the court was requested or made regarding future payments for petitioner’s own support, as distinguished from that of said daughter. We are unable to say; under all the facts and circumstances in evidence, that the chancellor, in the decree appealed from, was warranted in finding that the parties hereto made such a verbal contract as claimed by petitioner prior to the filing of said annulment bill. We find no evidence that petitioner was induced by respondent to seek to annul the Quintará marriage or that respondent’s alleged promise was the cause of her action. On the contrary there is evidence tending to show that petitioner, prior to the interview of the parties in the office of her attorney, had already decided to take steps to annul said marriage. Even if it be considered that respondent made the verbal promise as alleged, the consideration therefor, viz., that petitioner would take steps to procure a separation from Quintará, is not a legal one, and is opposed to public policy. “If an agreement binds the parties or either of them to do, or if the consideration is to do, something opposed to the public policy of the state or nation, it is illegal and absolutely void, however solemnly made.” (13 Corpus Juris, p. 424, sec. 360. ) “If the object of a contract is to divorce man and wife the agreement is against public policy and void.” (Id. p. 463, sec. 406.) “If the contract is invalid for want of consideration, a ratification that does not supply the consideration cannot make it binding.” (Id. p. 314, sec. 145.) And, even if it be considered that there was a valid verbal contract between the parties, as claimed, and that respondent breached it, such breach, made long after the entry of the divorce decree, cannot, we think, be made the basis of a contempt proceeding founded upon that decree, which provided that respondent might cease making the stipulated alimony payments for petitioner’s own support in case she remarried, and which he did cease making upon her remarriage. If, after the alleged verbal contract was made, petitioner had appeared in court to amend or modify the decree in accordance therewith, and had secured such amendment or modification providing for the renewal of the alimony payments, and if, upon respondent’s failure to make those payments, she had brought him again into court in a contempt proceeding, the situation might be different. Petitioner, however, never sought to amend said decree after the time it is claimed said contract was made;

And we are of the opinion that the court erred in ordering that respondent pay to petitioner $1,250 as and for her solicitor’s fees. We find no statutory authority in the Divorce Act of this State [Cahill’s Ill. St. ch. 40] for the allowance of fees for services of the wife’s solicitor rendered after a final and unappealed divorce decree. In 19 Corpus Juris, p. 228, sec. 544, it is said: “In the absence of statutory authorization, it seems that suit money will not be granted in a suit by a divorced woman to enforce a decree of alimony against her former husband.” (See also McQuien v. McQuien, 61 How. Pr. [N. Y.] 280, 282.) Furthermore, it doesmot appear to us that it would be just and equitable, under all the facts and circumstances disclosed,'to tax respondent for such fees. The facts are much different from those in Czarra v. Czarra, 128 Ill. App. 430, cited by petitioner’s counsel.

Our conclusion is that the decree of the superior court should be reversed and the cause remanded with directions to dismiss the petition for want of équity, and it is so ordered.

Reversed and remanded with directions.

Barnes and Morrill, JJ., concur.