Aurand v. Aurand, 55 Ill. App. 426 (1894)

Dec. 6, 1894 · Illinois Appellate Court

55 Ill. App. 426

Ambrose J. Aurand v. Eva Aurand.

1. Separate Maintenance—Allowance Not to be Extravagant.— Decrees for separate maintenance should not be such as to encourage, by hopes of higher and easier living, the bringing of suits therefor.

Memorandum.—Bill for divorce and cross-bill for separate maintenance. In the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Decree on cross-bill; appeal by complaint in the original bill. Heard in this court at the October term, 1894. Reversed and remanded with directions.

Opinion filed December 6, 1894.

Statement of the Case.

Appellant, the husband of appellee, filed a bill asking for a divorce from her. She having answered the bill, denying the charges thereof, filed a cross-bill asking for a separate maintenance.

It was undisputed that appellant had gone away from and ceased to live with her. When he did so, he left with her all the furniture and belongings of the home and from $1,000 to $1,300 in money.

Appellant is a railway conductor earning $125 per month; he is also the owner of ten acres of land in Florida, for which he paid $1,350, and from which he derives no income.

The parties had not any children.

The court found that the allegations of his bill were not sustained; and that she was living separate and apart from him without her fault; thereupon the court awarded to her the sum of $50 per month as alimony, and that he pay to her solicitors as part of the costs in the case the sum of $150.

From this decree he prosecutes this appeal.

Appellant’s Brief, Stephen K. Albright and William H. Martz, Attorneys.

It is not the policy of the law that any person shall be kept in sumptuous idleness at the expense of another, but that each individual shall contribute to their own support, and no premium will be placed upon proceedings of this character, by making large and extravagant allowances, thus permitting the applicant to live in idleness and luxury. Schwartz v. Schwartz, 29 Ill. App. 516; Small v. Small (Neb.), 45 N. W. Rep. 248; Vert v. Vert (S. D.), 54 N. W. Rep. 655; Young v. Young (Ky.), 15 S. W. Rep. 780; Rogers v. Rogers (Cal.), 31 Pac. Rep. 157; Reed v. Reed (Mich.), 49 N. W. Rep. 587; Gilbert v. Gilbert, 1 N. Y. S. 534; Robinson v. Robinson (Cal.), 21 Pac. Rep. 1095; 79 Cal. 511; Potts v. Potts (Mich.), 36 N. W. Rep. 240; Umlauf v. Umlauf, 22 Ill. App. 580; Harding v. Harding, 40 Ill. App. 202; Morse v. Morse, 25 Ind. 156; Kenemer v. Kenemer, 26 Ind. 330; Logan v. Logan, 2 B. Mon. (Ky.) 142; Gaines v. Gaines, 9 B. Mon. (Ky.) 295; Brown v. Brown, 22 Mich. 242; Stevens v. Stevens, 49 Mich. 504; Porter v. Porter, 41 Miss. 116; Willing v. Willing, 16 N. J. 389; Westfield v. Westfield, 36 N. J. Eq. 195; Collins v. Collins, 80 N. Y. 1; Maxwell v. Maxwell, 28 Hun (N. Y.) 566; Hoffman v. Hoffman, 7 Robt. (N. Y.) 474; Miller v. Miller, 75 N. C. 70; Lishey v. Lishey, 2 Tenn. Ch. 1; Coad v. Coad, 40 Wis. 392; Turner v. Turner, 44 Ala. 473; Pinckard v. Pinckard, 22 Ga. 31.

E. S. Murphy, attorney for appellee.

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

The evidence is not such as to justify our interfering, with the finding of the Circuit Court as to the merits of the case, while we are of the opinion that $50 per month as alimony was too large an allowance.

It appears that this sum will maintain appellee, without exertion on her part, in a style of living better than she enjoyed when living with appellant.

Decrees for separate maintenance should not be such as to encourage, by hopes of higher and easier living, the bringing of suits of this kind.

It does not appear that appellant’s Florida land has any particular value; it brings in.no income, and may never do so. At present it is only a source of expense, and that expense is in part for the benefit of appellee, who retains her dower interest in it.

Appellant is compelled to keep at work to earn the alimony, while appellee is enabled to live in idleness.

Following the conclusion arrived at in Umlauf v. Umlauf, 128 Ill. 378, we are of the opinion that $50 per month, is, out of an income of $125 per month, derived only by constant labor, too large an allowance.

We think that in this case the allowance of alimony should not exceed the sum of $30 per month. The decree of the Circuit Court will, therefore, be set aside and the cause remanded to that court with directions to so modify its decree as to make the award of alimony $30 per month.

In all other respects the decree of the Circuit Court is affirmed.

The costs made in this court will be taxed against the parties ■ respectively, by whom such costs were incurred. Decree modified.