Thompson v. Mentzer

Mr. Justice O’Connor delivered the opinion of the court. By this appeal complainant seeks to reverse an order modifying a decree for the payment of alimony. The record discloses that on April 12, 1916, complainant, Rosa C. Thompson, formerly Rosa C. Mentzer, obtained a decree of divorce from defendant, William A. Mentzer, on the ground of wilful desertion. By the decree complainant was given custody of their son, who was then 17 years old. The amount of the alimony to be paid by defendant and the time of payment were by consent of the parties decreed as follows: $5,000 cash, and $30 per month beginning on the 1st day of May, 1916, and the first of each month thereafter during the life of Joseph Arnold, father of complainant, and until the minor son should arrive at the age of 21 years. The alimony was all paid in accordance with the terms of the decree to and including the 1st day of April, 1918. On April 27, 1918, complainant remarried and lived thereafter with her second husband. The following month, May, 20, 1918, defendant filed his petition asking that the decree for the payment of alimony be modified and that he be released from further payment. At that time complainant’s father was still living and the son of the parties was not then 21 years old. Subsequent to the decree the minor son, by consent of the parties, left complainant and lived with defendant. An answer was filed and "after hearing an order was "entered modifying the decree releasing defendant from further payments of alimony. It is insisted that since the provision of the decree for the payment of alimony was entered by consent of the parties, the court was without power to modify it over complainant’s objection. In support of this the cases of Buck v. Buck, 60 Ill. 241; Storey v. Storey, 125 Ill. 608, and Miller v. Miller, 234 Ill. 16, are cited. In the Buck case, supra, the defendant sought to reverse a decree for the payment of alimony, the amount of which had been mutually agreed upon. There was no attempt to show that the conditión of the parties had changed since the entry- of the decree, but the appeal was from the decree itself. Manifestly the defendant there was not entitled to have the decree reversed, the provisions of which he had consented to. The question decided in the Storey case, was whether, after the death of a former husband, a divorced wife was entitled to receive alimony from his estate. The court held that under a proper construction of the decree she was entitled to the alimony. The Miller case was a partition proceeding which involved collaterally a consent decree fixing the allowance for separate maintenance. We think it clear that none of the authorities cited are applicable to the facts in the instant case. It is further urged that the modification of the decree was wrong for the reason that the alimony awarded was for a gross sum and that the court was without jurisdiction to modify it at a subsequent term. We think it clear that since the decree provided for monthly payments it cannot be said that the alimony was for a gross sum. Section 18 of the Divorce Act (J. & A. jf 4233) expressly authorizes the court upon application from time to time to make such alterations in the allowance of alimony as shall appear proper and reasonable. It has been repeatedly held that a subsequent marriage by the divorced wife authorizes the court upon petition to release her divorced husband from further payments of alimony. Stillman v. Stillman, 99 Ill. 196; Morgan v. Lowman, 80 Ill. App. 557. By remarrying, complainant voluntarily waived her right to alimony after the date of her remarriage. Morgan v. Lowman, supra; Stillman v. Stillman, supra. The court was, therefore, justified in modifying the decree and this, too, without requiring the payment of the instalment due for May, although the petition asking for the release from further payment was not filed until 20 days thereafter. Barclay v. Barclay, 184 Ill. 375. The order of the superior court of Cook county is affirmed. Affirmed.