Department of Public Aid ex rel. Jones v. Jones

295 Ill. App. 3d 383 | Ill. App. Ct. | 1998

NO. 4-96-0734

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE DEPARTMENT OF PUBLIC AID ex rel.    )   Appeal from

RANDALL R. JONES,                       )   Circuit Court of

Petitioner-Appellant,         )   Morgan County

v.                            )   No. 95F113

YANA D. JONES,                          )

Respondent-Appellee.          )   Honorable

                                       )   Tim P. Olson,

                                       )   Judge Presiding.

_________________________________________________________________

                                        

JUSTICE KNECHT delivered the opinion of the court:

This action was initiated by the State of Flor­i­da on behalf of Randall Jones to obtain an order for child sup­port against re­spon­dent, Yana Jones, pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) (750 ILCS 20/1 et seq . (West 1996)).  Petitioner, Illi­nois Department of Public Aid ex rel . Randall Jones, appeals from the order of the circuit court of Morgan County finding Yana owed Randall a duty of child sup­port but Randall owed a duty of child support in the same amount to Yana pursuant to an order entered in their disso­lution of mar­riage proceedings and, accord­ingly, set off Randall's duty of support against Yana's duty of support and or­dered no funds be exchanged between the parties.  The issue raised on appeal is whether a trial court in a RURESA action for child support can also consider and enforce an order for a child support ar­rearage en­tered in the dissolution of marriage proceedings.  We conclude it may not.

A judgment of dissolution of marriage between Randall and Yana Jones was entered by the circuit court of Macon County, Illinois, in September 1983.  Yana was given sole cus­tody of the minor child born to the parties and Randall was or­dered to pay $85 per week as "partial and unallocated main­te­nance and child support" for one year commencing August 12, 1983, and $70 per week as child support thereafter until further order of the court.  In June 1994, the child, Miranda, began liv­ing in Florida with Randall with Yana's consent.

On November 8, 1994, the State of Florida Depart­ment of Reve­nue on be­half of Randall filed a peti­tion under Florida's Revised Uni­form Recip­ro­cal En­force­ment of Sup­port Act (1968) (Fla. Stat. Ann. §88.011 et seq . (West 1987)) in the cir­cuit court of Brevard Coun­ty, Florida, to obtain a child support order against Yana.  The peti­tion al­leged Yana resided in Jacksonville, Illi­nois, and Randall had custody of the parties' minor child.

The Florida court issued an order find­ing the peti­tion and testimony set forth facts from which it may be de­ter­mined Yana owed a duty of support to Randall and Yana was be­lieved to reside in Jacksonville, Illinois.  The petition was sent to the Illinois Department of Public Aid (Department) and filed in the circuit court of Mor­gan County pursuant to sec­tions 14 and 18 of RURESA.  750 ILCS 20/14, 18 (West 1996).  The Illi­nois Depart­ment of Pub­lic Aid ex rel . Randall Jones was the named petition­er.  On No­vem­ber 15, 1995, the petition and a sum­mons were served on Yana.  

On January 11, 1996, Yana filed a motion in the cir­cuit court of Macon County to transfer venue of the postjudgment dis­solution proceedings to the circuit court of Morgan County be­cause that was the county where she now lived and where the RURESA petition against her had been transferred.  On March 4, 1996, the court granted Yana's motion.

A hearing was held on the RURESA petition on May 16, 1996.  Yana was the only witness.  Yana testified her daughter Miranda had been living with Randall with her con­sent since June 1994.  She further testified she worked at Hertzberg and J.C. Penney.  At Hertzberg she earned $7.36 per hour and worked 40 hours per week and at J.C. Penney she earned $5.30 per hour and worked 8 hours per week.  

Over objection of the assistant Attorney General repre­senting the Department, the trial court admitted a copy of a let­ter dated February 26, 1996, sent by the Department to Yana, ad­vising her of Randall's arrearages in child support under the judgment for dissolution of marriage.  Also admitted over objec­tion was an order entered by the circuit court of Orange County, Florida, dated October 30, 1995, finding Randall was in arrears in child support payments.  This order was captioned "Final Order on Contempt on Report and Recommendation of the Hearing Officer and Order to Abate Child Support."  In the body of the order Randall was specifically found not in will­ful con­tempt of court for fail­ing to pay child sup­port.  The record also con­tains an­other order en­tered that same date by the Florida court that abat­ed the amount Randall's em­ployer was de­ducting as child sup­port and the employer was to deduct $10 per week to­ward an ar­rearage of $3,524.17 established in Florida.

On June 6, 1996, the trial court entered a written order finding Yana was the custodial parent of Miranda pursuant to the judgment of dissolution entered in Macon County; the order of the Macon County circuit court requiring Randall to pay $85 per week as child support remained in full force and effect; and Randall was in contempt of court both in Morgan County and Orange County, Florida, for failure to pay child support.  Based on these findings the court:

"orders [Yana] to pay [Randall] the sum

of $85.00 per week to satisfy the Uniform

Reciprocal Enforcement of Support Order so

long as the minor child of the parties re-

sides with [Randall] with her permission or

until the minor attains majority whichever

occurs first.  It is the intention of the

court that this payment shall act as a set-

off of the order requiring [Randall] to pay

child support in the amount of $85 per week

and that no funds will actually be transferred."

On June 14, 1996, the Department filed a motion to va­cate the court's order contending a RURESA action was limited to the allegations of that petition and a court considering the RURESA peti­tion had no jurisdiction in that pro­ceed­ing to consid­er any other matters between the parties in­clud­ing ac­tions to en­force a judg­ment of dissolution.  There­fore, the trial court could make no findings concerning Randall's arrearages under the judgment of dissolu­tion and evi­dence con­cerning that arrearage was not rele­vant for purposes of the RURESA proceeding.  The trial court denied the motion and this appeal fol­lowed.

The trial court determined since the Macon Coun­ty judg­ment of dissolution had been transferred to Morgan County circuit court, the court had jurisdiction over both it and the RURESA peti­tion.  The court stated it was a court of equity in family law matters and Randall did not have clean hands in asking for sup­port from Yana when he was in arrears under the judgment of dis­solution.  However, the court recognized the duty of sup­port Yana owed under Illinois law was to her child and not to Randall and RURESA was a valid en­force­ment mechanism for that obli­ga­tion.  With both par­ties owing support to each other, the trial court held no money should actu­ally change hands as Randall's support obliga­tion would be set off against Yana's obligation.  

The trial court made a sincere effort to be practical.  In ordering the setoff, the court was apparently considering the significant arrearages owed by Randall to Yana, and the fact Randall was legally obligated to honor the support order entered in the dissolution case even though he had physical custody of the child.  In the effort to be practical, the trial court ex­ceeded its authority.

The sole question for review is whether a trial court in a RURESA proceeding is limited to considering only the RURESA respondent's (Yana's) duty of support and whether the trial court exceeded its authority by addressing and enforcing Randall's child support obligations under the judgment of disso­lution.  Because we have been asked to determine as a matter of law wheth­er the trial court has over­stepped its au­thor­i­ty under RURESA, our re­view is de novo and we give no deference to the trial court's ruling.   S.B. Lexington, Inc. v. Near North Insur­ance Agency, Inc. , 244 Ill. App. 3d 1023, 1030, 614 N.E.2d 234, 238 (1993).  After exam­in­ing RURESA and judi­cial deci­sions in­ter­pret­ing it, we find in a RURESA pro­ceed­ing the court is limit­ed to consider­ing the respondent's duty of support.  The trial court here exceeded its authority by ad­dressing and enforc­ing Randall's child support obligation estab­lished in the dissolution of mar­riage proceed­ings.

RURESA authorizes the procedure for civil pro­ceed­ings to compel the support of dependents within and with­out the State of Illinois.  750 ILCS 20/1 (West 1996).  

"RURESA provides a mechanism by which an

individual to whom a duty of support is

owed (the obligee) can compel the person

owing the duty (the obligor) to abide by

it when absent from the jurisdiction in

which the obligee resides without the obli-

gee's [ sic ] having to leave that jurisdic-

tion to obtain enforcement."   People ex rel.

LeGout v. Decker , 146 Ill. 2d 389, 391, 586

N.E.2d 1257, 1258 (1992).

RURESA provides "[a]ll duties of support, including the duty to pay arrearages, are enforceable by a proceeding under this Act including a proceeding for civil contempt."  750 ILCS 20/9 (West 1996).  RURESA does not create a duty of support but pro­vides the means to enforce a duty of support as it exists under the laws of the state where the obligor was present during the period for which support is sought.   Johnson v. Johnson , 264 Ill. App. 3d 662, 664, 636 N.E.2d 1013, 1014 (1994).  

Under RURESA, a duty of support is defined as one:

" imposed or imposable by law or by order or

judgment of any court, whether interlocu-

tory or final or whether incidental to an

action for dissolution of marriage, legal

separation, or otherwise and includes the

duty to pay arrearages of support past due

and unpaid."  (Emphasis added.)  750 ILCS

20/2(b) (West 1996).

A duty of support under RURESA includes one that exists under law but has not been previously imposed by a court order.   People ex rel. Lightbody v. Lightbody , 117 Ill. App. 3d 119, 121, 451 N.E.2d 890, 891 (1983).  Under RURESA, where a duty of support exists but has not been adjudicated, a support order may be en­tered for the first time in a RURESA proceeding.  750 ILCS 20/24 (West 1996); Lightbody , 117 Ill. App. 3d at 121, 451 N.E.2d at 891.

In order to initiate a multistate proceeding under RURESA, the obligee must file a RURESA petition in the appropri­ate court of the obligee's state of residence--the initiating state.  750 ILCS 20/11 (West 1996).  The initiating state court then assesses whether the petition sets forth facts from which it can be deter­mined there is a duty of support owed, and the re­sponding state court may obtain jurisdiction of the obligor or his proper­ty.  750 ILCS 20/14 (West 1996).  Once the initiating state determines further proceedings are warranted, the court forwards the petition to the responding state court or in­for­ma­tion agency, in this case the Department.  750 ILCS 20/14 (West 1996).  

After receipt of the petition, the Department for­wards the petition to the court in Illinois that has ju­ris­diction over the obligor or his property.  750 ILCS 20/14 (West 1996).  The re­sponding court then notifies the prosecuting attor­ney, who takes all action necessary to enable the court to obtain juris­diction over the obligor, set a time and place for hearing, and serve notice upon the obligor.  750 ILCS 20/18 (West 1996).  If the responding state court finds a duty of support exists, it "may order the obligor to furnish support or reimbursement there­for and subject the property of the obligor to the order."  750 ILCS 20/24 (West 1996).  Upon entry of an order for support, the court enters a separate order for withholding, which shall take effect immediately.  750 ILCS 20/26.1(B)(1) (West 1996).  Thus, when Illinois law imposes a duty of support on Yana pay­able to Randall, the circuit court should enter an order of sup­port and an order for withholding.

Under Illinois law, both a mother and a father have an obligation to financially support their children.   In re Marriage of Duerr , 250 Ill. App. 3d 232, 238, 621 N.E.2d 120, 125 (1993).  In order to be entitled to an order of child support, a parent need not have legal custody of a child, but only physical custo­dy.  See Nelson v. Nelson , 17 Ill. App. 3d 651, 653-56, 308 N.E.2d 132, 134-36 (1974).  Accordingly, the trial court correct­ly determined Yana owed a duty of child support payable to Randall because Miranda had been residing with Randall since June 1994.  However, the court erred in offsetting that obliga­tion against Randall's obligation to pay child support under the judg­ment of dissolution of marriage.

The purpose of RURESA is to secure support for depen­dent children from persons legally responsible for their sup­port.   LeGout , 146 Ill. 2d at 396, 586 N.E.2d at 1260.  To achieve that pur­pose, RURESA pro­vides "a separate and inde­pendent forum to promptly and expe­di­tiously enforce the duty of support without allowing com­plex collateral issues to become in­volved."   Paredes v. Paredes , 118 Ill. App. 3d 27, 30, 454 N.E.2d 1014, 1017 (1983).  The reme­dies provided under RURESA "are in addition to and not in substi­tution for any other reme­dies."  750 ILCS 20/3 (West 1996).  In order to accom­plish its goals, RURESA pro­vides for a proceeding separate from any related proceedings and strictly limits the issues to be resolved in such proceed­ings.   Paredes , 118 Ill. App. 3d at 31, 454 N.E.2d at 1017.                   In addition, the defenses available to a respon­dent in a RURESA proceeding are limited:

"If the action is based on a support order

issued by a court or administrative body of

this or any other State, a certified copy

of the order shall be received as evidence

of the duty of support, subject only to any

defenses available to an obligor with re-

spect to paternity *** or to a defendant

in an action or a proceeding to enforce a

foreign money judgment."  750 ILCS 20/23

(West 1996).  

A court's personal jurisdiction over the parties is also limited as RURESA provides "[p]articipation in any proceeding under this Act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding."  750 ILCS 20/32 (West 1996).

In construing the provisions of RURESA, the Illinois Su­preme Court has stated courts shall consider decisions of other states that have adopted RURESA or its predecessor stat­ute (URESA), and shall construe the statute in accordance with such decisions.   LeGout , 146 Ill. 2d at 397, 586 N.E.2d at 1260-61.  Thus, we note courts have held a court's authori­ty under RURESA is limited to adjudicating the respondent's duty of sup­port.   State ex rel. Van Buren County Department of Social Ser­vices v. Demp­sey , 600 So. 2d 1019, 1023 (Ala. Civ. App. 1992) (the court "is not authorized by statute to determine is­sues arising from the di­vorce decree unless they are determina­tive of the defendant's duty of support"); Vecellio v. Vecellio , 313 So. 2d 61, 62 (Fla. Dist. Ct. App. 1975)("[RURESA] was strictly limited to the adju­dication of the duty of support").

As a result of the limitations on a court's jurisdic­tion under RURESA, courts have expressly rejected the argument the responding state court may consider collateral domestic rela­tions issues, such as visitation, custody or recoupment of sup­port from the petitioner, in a RURESA proceeding.   People ex rel. Gribbins v. Skopitz , 135 Ill. App. 3d 76, 481 N.E.2d 815 (1985) (recoupment); Rathmell v. Gardner , 105 Ill. App. 3d 986, 434 N.E.2d 1156 (1982) (visitation); People ex rel. Winger v. Young , 78 Ill. App. 3d 512, 397 N.E.2d 253 (1979) (visitation); State of Florida De­part­ment of Revenue ex rel. Schneider v. Schnei­der , 667 So. 2d 1029 (Fla. Dist. Ct. App. 1996) (counterclaim for child sup­port and arrearages); Van Buren County , 600 So. 2d 1019 (coun­ter­claim for arrearages).

One of the closest factual scenarios to the instant case is found in Van Buren Coun­ty .  There, the moth­er, a resi­dent of Ala­bama, had been award­ed custo­dy of the parties' son and the fa­ther, a resi­dent of Michigan, was ordered to pay child support.  The mother later consented to the child living with the father in Michigan al­though the record does not indicate legal custody was ever changed.  The fa­ther did not peti­tion the court for child sup­port from the moth­er.  Howev­er, after several years, the child began to re­ceive aid from the Van Buren County, Michi­gan, De­part­ment of So­cial Services (DSS).   Van Buren Coun­ty , 600 So. 2d at 1021.  

As a result, DSS filed a petition under Alabama's URESA against the mother seeking reimbursement for the support it paid to her child and to establish the mother's duty to pay fu­ture child support to the father.  The mother filed an answer and a counterclaim for arrearages in child support from the father.  After a hearing, the trial court issued an order establishing the mother's duty to pay child support, found the father to be $9,000 in arrears and allowed the mother to set off this amount against the child support she owed the father.   Van Buren Coun­ty , 600 So. 2d at 1021.

The appellate court held in a URESA proceeding the issue to be determined by the trial court was whether the respon­dent mother owed a duty of child support and the court was not authorized by URESA to determine issues aris­ing out of the di­vorce decree that were not determi­na­tive of the mother's duty of sup­port.   Van Buren County , 600 So. 2d at 1022-23.  The court explained a URESA action is not a sub­sti­tute "for any reme­dy already avail­able to enforce the di­vorce decree" and found the "issue of the father's arrear­age had no bearing on the issue brought in the URESA peti­tion; it is a sepa­rate matter requiring proof of unre­lated facts."   Van Buren Coun­ty , 600 So. 2d at 1023.   The court in Van Buren County went on to dis­cuss the fact the real party in in­terest was DDS and not the father and URESA did not authorize the state prose­cuting the petition to defend the peti­tioning parent on counter­claims aris­ing from the divorce decree.  There­fore, the father in that case was not rep­resented by coun­sel and did not ap­pear at the hearing, nor did the record indi­cate he had even re­ceived notice of the coun­ter­claim.   Van Buren County , 600 So. 2d at 1023.  While in this case no coun­terclaim was actu­ally filed requiring notice nor was the RURESA petition ini­tiated by a gov­ern­ment agen­cy after sup­plying public aid to Miranda, it is clear the issue of Randall's arrear­age under the judgment of dissolu­tion had no bearing on Yana's duty of support and, there­fore, was outside the authority of the trial court to consider in a RURESA action.  For this reason, we must reverse the trial court's order that the previously ordered child support payable by Randall should be set off against the support under RURESA owed by Yana to Randall.

We must also remand to the trial court to prop­erly de­ter­mine the amount of child support owed by Yana.  Possi­bly be­cause the trial court sim­ply set off Randall's sup­port obli­ga­tion against Yana's obli­ga­tion, it set her support obliga­tion in the same amount Randall had been ordered to pay in the dissolu­tion pro­ceeding, $85 per week.  The court made no find­ings as to the amount of her obli­gation.  Such find­ings, in­clud­ing gross income, applicable deduc­tions, and a calcu­lation of the amount that should be paid under the guide­lines of sec­tion 505(a)(1) of the Illinois Marriage and Dissolu­tion of Mar­riage Act (Act) (750 ILCS 5/505(a)(1) (West 1996)) are re­quired in order to re­view the pro­pri­ety of the award.   In re Marriage of Carpel , 232 Ill. App. 3d 806, 820, 597 N.E.2d 847, 857 (1992); In re Mar­riage of Douglas , 195 Ill. App. 3d 1053, 1059-60, 552 N.E.2d 1346, 1350 (1990).  Section 505(a)(1) pro­vides guidelines for determining the minimum amount of support, and section 505(a)(2) requires a court to make express findings if deviating from the guidelines.  750 ILCS 5/505(a)(1),(a)(2) (West 1996).  With­out such find­ings, we do not know whether $85 per week is a proper amount for Yana to pay in child sup­port to Randall.

To the extent the trial court took into account the fact Randall owed an arrearage under the judgment of dissolution when setting the amount of Yana's support obligation, the doc­trine of "unclean hands" is inapplicable because child support is to be awarded without regard to misconduct on the part of the parent.  750 ILCS 5/505(a) (West 1996).  A trial court is obli­gated to protect the child's best interests in matters of sup­port.   Blisset v. Blisset , 123 Ill. 2d 161, 167, 526 N.E.2d 125,   128 (1988).  As for Randall being in contempt of court due to child support arrearages, the trial court was sim­ply mis­tak­en as to its as­sess­ment that Randall was found in con­tempt of court in Flor­ida.  A review of the Florida court documents found in the re­cord indicates a specific finding he was not in contempt .  He could not be found in contempt in Morgan County in the dissolu­tion proceed­ing transferred from Macon County because it was not pro­perly before the court in the RURESA proceeding.

For the foregoing reasons, the judgment of the trial court is affirmed as to the imposition of a child support obliga­tion on Yana, reversed as to the setoff of Yana's obligation against any sup­port or arrearage owed by Randall and re­mand­ed for findings required by section 505(a) of the Act (750 ILCS 5/505(a) (West 1996)) in set­ting the amount of the child support Yana owes.

Affirmed in part, reversed in part and remanded.    

GARMAN, P.J., and STEIGMANN, J., concur.