¶1dissenting:
¶2I believe the judgment of the trial court should be affirmed and consequently I am not in agreement with the result reached by my colleagues. The award of alimony is based on section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19) which provides in pertinent part “* # * the court may make such order touching the alimony … of the wife s … from the circumstances of the parties and the nature of the case, [as] shall be fit, reasonable and just … The foregoing statutory provision does not make its effect depend upon the grounds for which a decree of divorce is granted and conversely does not exclude its application where any particular ground for divorce is the basis of the decree. So far as the statute is concerned, I find no authority or any holding that where the ground for the divorce is adultery the spouse against whom the decree is entered is as a matter of law barred from seeking and receiving an award of alimony. When the opinion of the court states, “It is an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery,” it seems to me that the court is saying that the adultery of a wife precludes as a matter of law any award of alimony to the erring wife. Such a holding is, I believe, contrary to both the letter and spirit of the statute and goes beyond the two principal cases relied on by either of my colleagues, namely, Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660, and Spitler v. Spitler, 108 Ill. 120. In the Spitler case, decided in 1883, the court nominally recognized that the statute did change the common law in that it no longer barred the receipt of alimony by the party guilty of the misconduct. In deciding, however, that the trial court improperly awarded alimony to the party guilty of the misconduct, namely adultery, the court in the Spitler case emphasized that at that time a wife had no right to her own income since it belonged to her husband as a matter of law and consequently any increase in the value of property accruing during the marriage was of no concern in the determination or awarding of alimony. Furthermore, the court in Spitler observed that the primary responsibility of a husband to support his wife continued only so long as she was a member of his household and that a wife’s fault or folly were sufficient reasons for denying her claims. Since the court in Spitler rationalized its result by referring to circumstances no longer deemed relevant, the persuasive force of the opinion is both diminished and of little assistance in a present-day application of the statute.
¶3Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660, also recognized that even where the misconduct is adultery the wife is not automatically barred from an alimony award even though in that case the court of review concluded the misconduct was so “gross” that an award of alimony was improper. As in Spitler, the court in Ganzer concerns itself only with the wife’s misconduct and if the statute is to be given effect neither the court in Ganzer nor in Sp!tler conceive of any circumstances justifying its application. Supporting the result in part because the erring wife was not repentant and rebuffed efforts at reconciliation likewise seems to have introduced irrelevant considerations of doubtful persuasive value so far as the precedential value of the opinion is concerned.
¶4Before proceeding to discuss the award of alimony in this case in terms of judicial discretion, I believe it is important to bear in mind a rule which is a natural outgrowth of the statutory provision. This rule is that alimony is neither punishment for a miscreant nor a reward for the virtuous. (Sandberg v. Sandberg, 11 Ill.App.3d 495, 297 N.E.2d 654; Fox v. Fox, 129 Ill.App.2d 209, 262 N.E.2d 607.) This does not mean that either party has a right to alimony or that either party has a right to avoid the obligation to pay alimony. Although fault is still retained in this state as a necessary condition to the granting of a divorce, in the general consideration of matrimonial problems and the consequences of deteriorated marital relations the fault concept is losing its vigor and significance in determining property rights and related matters.
¶5In the recent case of Pohren v. Pohren (divorce granted for wife’s desertion), 13 Ill.App.3d 380, 385, 300 N.E.2d 288, the court, in discussing the factors to be considered in the awarding of alimony even where the party seeking the alimony was guilty of misconduct, indicated the factors which should be considered. According to Pohren,
“Aside from the factors that affect an award to a wife who is innocent, such as her needs and the husband’s ability to meet them, the age, health and physical condition of the parties [citations] there are a few factors which are of particular importance in determining whether to award alimony to a guilty wife. For example, the court may consider the nature of the wife’s misconduct, the fact that the husband was somewhat at fault or contributed to the causes resulting in the separation of the parties … the length of time that the parties lived together; children etc.; the interest of society in preventing a woman from becoming a public charge; the fact that the woman married the husband for the purpose of obtaining some of his money, and most important of all the extent to which the wife has contributed in money and labor toward the enhancement and preservation of the husband’s estate (or even managing the household on a budget that did not consume all the husband’s earnings or estate) #
¶6Since the opinion of the court goes no farther than concluding that the court has no discretion to award the appellee alimony because of her adultery, it can hardly be said that the rules of Pohren have been applied which make such misconduct only one of the factors relevant to the exercise and discretion by the trial court.
¶7Even though the trial court found the appellee to be guilty of adultery in the instant case and no cross-appeal has been filed from such determination, it seems to me that the facts described indicate that the fault is not one-sided or independently unilateral. From the record it appears the appellant was an alcoholic, was neglectful of and disinterested in his wife and, according to his own admission, it would be ridiculous to portray himself as a kind, dutiful and affectionate husband. While the theory of provocation is not applicable where the charge is adultery such consideration would seem to be applicable in determining whether the trial court properly exercised its discretion in awarding alimony. Since the relative conduct of the parties seems to be the only disputed issue so far as the applicability of the Pohren rule is concerned, I think it can be inferred from the record that the trial court did consider the conduct of both parties and could have concluded that the husband’s own conduct contributed in substantial measure to the dissolution of the marriage relation. Even though the husband’s conduct was not a defense to the charge of adultery, it was relevant in determining that an award of alimony to the erring wife was appropriate. Accordingly, I find no abuse of discretion which as a matter of law renders the determination of the trial court improper.