*1 (No. 45593. GILL, v. ROBERT GILL, Appellant.
MARILYN Aрpellee, 29, 1974. Rehearing denied Nov. Opinion Jan. filed *2 RYAN, KLUCZYNSKI, GOLDENHERSH, dissenting. JJ„ Belkind & Polikoff Bochte, Camodeca & Tim- for pone, Chicago, appellant. Missner &
Gomberg, for Schaps, Chicago, appellee. MR. WARD of the delivered opinion JUSTICE court: on this is whether question presented appeal
was for the trial court to direct the father of a child proper to reimburse the mother for after their moneys expended divorce for their child’s his infancy. during
The circuit of Cook enterеd such an County Gill, in favor of her Marilyn plaintiff, against husband, Gill, former Robert and the appellate affirmed 3d We the defendant’s (8 App. 625). granted for leave to petition appeal. 10, and Robert Gill were on
Marilyn married April Michael, was born child, Richard One 1948. 1956, for a suit divorce On
marriage. June Gill served by Gill and Robert by Marilyn brought entered favor a decree of divorce was publication, and dеsertion. on cruelty plaintiff grounds physical five Richard, was then who decree awarded custody child old, mother and reserved years question fees. attorney’s support, 27, 1971, On obtained personal May and summons in service of the complaint original served divorce action the defendant and him June her reimbursed copy from expenditures June through June Gill Mrs. testified at the held July 1971 hearing she son hаd the sole for their from provided prior 28, 1956, 28, 1969, graduated June June school and became She that it said high employed. *3 had cost to week approximately provide $25 per She that she testified support during 13-year period. did not have of her husband’s whereabouts any knowledge from the time of his her until he desertion of communi- cated with their in and told son May apparently he where son was living.
At the conclusion of the trial hearing and Mrs. ordered the defendant to granted pay $13,500 Gill for the reimbursement for moneys spent child’s fees. The and amount $500 support legal determined the basis of reimbursement was on allowing for the 13-year $20 week period, per 28, 28, 1956, on on commencing ending June June no There is to the defendant’s substance argument tunc a nunc that pro order reimburse was apрeal order and he claims that the therefore invalid. Seemingly divorce was order relates back to the time the decree served because, he he not entered says, personally at that time the court had no over jurisdiction him and could not enter the order to reimburse.
The function of a nunc tunc pro order is “to supply some omission in the record of an order which was really Rosenwald, made but omitted from the record.” (People 266 Ill. It clear that in the 554.) original proceeding there was no order made” relative “really obligation That provide support. question expressly reserved in the divorce decree. order to reimburse was not entered to an correct order made omitted from the but decree. original
The defendant next contends that the trial court’s order him to for the directing pay, retroactively, child is void. He under section 18 argues Divorce Act Rev. Stat. ch. a court (Ill. par. 19) has to award from authority only support prospectively the date it in time acquires jurisdiction point the child becomes the same conten- emancipated. Putting form, tion in different the court had no says to order time any priоr period claimant’s over the personam obtaining defendant. of section does not favor the 18 clearly language The section the defendant would it.
interpretation give has states: of whether the court has or “Irrespective its decree an made payment time of a decree for entry divorce, person obtaining jurisdiction notice, malee service of summоns or proper *** as, such order for the of the children fit, evidence and nature of shall be reasonable ***.” just *4 as to it section does not restrict the court *** court for child
may payment support. “[The] decree, a time after the divorce entry *** *** for make such order obtaining jurisdiction Neither is the support.” balance of the section’s language
143 restrictive; and it a broad discrеtion confers completely as on the to the character support authority to “make is order it can enter. The court by empowered *** as, from for the of the children such order fit, be reasonable evidence and nature of shall We clearly ***.” consider that statute’s language just to enter conferred on the trial court authority the defendant would order. The interprеtation sought those unreasonable. It would encourage patently an children to abscond charged obligation so as to avoid service and evade thereby legal personal obligation. court, our case statute, the trial under from
Apart law, the order for reimbursement. had to enter Plaster, Plaster
As v. 47 Ill. early 290, 293, held a divorced wife had right her for reimbursement former husband suppоrt given their minor child. The in Plaster had an wife been given child, award for gross given no his but had been made for This court provision support. mother’s held the trial court erred in dismissing divorce, for filed after the decree years petition, It reimbursement and for future payments. child-support *** “*** in error liable was said: reasonable compensation past support child’s] [the in the as well as that future.” 104, wife, after service
In 317 Ill. Kelley, Kelley a decree secured on her husband by publication, or child No entered for alimony award was divorce. State, husband, who had been out When support. obtained personam returned to Illinois the court alia, inter over him him pay, and ordered the order Ill. at This court held 110) support. (317 of the father “The was proper, saying: obligation is born when the child his children begins This child. minority obligation continues during affected father to his minor child *5 144
the decree divorce, a nor a decree granting by granting care and of his child custody to his wife or other some suitable His person. children are of his blood. [Citation.] It is not their fault that have been parents divorced.” 600; Brower, 598, also Leland v. 28 Ill.2d (See Miles v. Miles, 375; 20 2d Parkinson, Ill. Parkinson v. App. 116 Ill. 112; 417; App. v. 239 Ill. Johnson, v. App. Boyle Johnson 554; 247 Bоyle, Ill. ex rel. App. Hartshorn v. People Hartshorn, 91; 21 2d Loss, Loss 80 App. v. 2d Ill. App. These decisions conform to 380-382.) the view held in the a majority divorce decree jurisdictions a child but is silent as provides of child a mother question maintain an support, action her former husband for against moneys expended her after the decree by the child. See 69 A.L.R. 203, 209.
The defendant’s next contention of error is that should have been plaintiff barred the doctrine of laches a for reimbursement. obtaining judgment Ferrell, This in Pyle Ill.2d “Laches, described doctrine: or the doctrine of stale demand, termed, as it is sometimes is a defense peculiar is bottomed on the reluctance equity to aid one who has his knowingly slept upon rights acquiesced for a of time and its existence great length [citation], whethеr, under all circumstances a depends particu lar with want of due chargeable diligence he institute before did.” The failing proceedings went on to add that the doctrine is invocable aby defendant when there is: Conduct on the only “(1) part the defendant rise to the situation of which giving complaint is made and for which the seeks complainant remedy; (2) delay asserting complainant’s rights, сomplain ant had notice or of defendant’s having knowledge suit; conduct and the to institute a lack of opportunity (3) or defendant notice on knowledge part would complainant assert on which he bases right in the suit, to the defendant injury prejudice (4) suit is or the event relief is accorded to complainant 547, 553. held be barred.” 12 Ill.2d deserted her former husband Mrs. Gill testified that he could her in that she not learn where 1956 and did Richard in ofMay located until communicated with service 1971. She took to obtain personal promptly steps and served notice that she was filing This testimony concerned appeal. *6 claim of was not The defendant’s the disputed. plaintiff a the cross-examina- laches is founded of solely portion cross- the record on the of the tion plaintiff. Though thе it that is not clear examination completely appears had come the defendant’s mother conceded that plaintiff her Richard and visited and from California approximately Also, the the about that time divorce. two years once on the to the defendant telephone, spoke plaintiff the knew there is to that plaintiff though nothing suggest time of the call. Also it wherе the defendant was at the at observed an that the had some time appears had similar to one the defendant driven automobile during The that this time of their defendant the marriage. argues a in material, that he owns home the claim plus apparently it, has a home and taxes on County Cook pays claim on should have barred the plaintiff’s telephone, out that However, laсhes. must it be pointed ground that introduced there no evidence whatever was elsewhere, or a or County owns home in Cook defendant listed has a home whether that taxes or telephone, pays in the hearing not. The defendant’s attorney that told course merely judge argument and has on it taxes defendant owns a home pays this and The did testify home defendant telephone. rebut рlaintiff’s did not offer evidence The her of his whereabouts. testimony ignorance on the cross-examination material developed plaintiff’s laches. a claim for insufficient to patently We consider that none of the described requirements Farrell, Pyle in v. 12 Ill.2d for the application doctrine were here. present claims, too, defendant absence
strict for the trial court proof damages, improper to enter a the defendant. No “money against judgment” is cited under contention circumstances here. Miezio,
This court observed in Miezio v. 6 Ill.2d 472: discretion trial court matters “Although of minor children relating review, one and v. Nye, judicial subject (Nye the determination should not be disturbed 408,) unless manifest has been done. appeal injustice (Buehler Buehler, 373 Ill. It cannot said on this record 626.)" the trial determination was court’s improper. $4,000 his annual earned 1956 and year per had $13,000. increased in earnings 1971 to Without any consideration depreciated power purchasing dollar, it can be said that reimburse allowing plaintiff’s ment at the rate of week $20 for Richard’s per was reasonable.
There is no merit in the final the argument defendant, is that notice given adеquate to 15, 1971, On defense. almost a month prepare June the before in the the filed a hearing petition that included this for relief: hat the defendant prayer “[t] be ordered to the a sum pay plaintiff, equal maintenance child, the minor Robert support Michael, 28, 1956, to date.” A copy June was served defendant on 3. We would June (cid:127)note, too, no motion was made continued; havе nor was claim made that hearing he was not ahead on the day prepared go hearing.
For the reasons the judgment appellate given, is affirmed.
Judgment affirmed. 147 KLUCZYNSKI, MR. dissenting: JUSTICE herein entered refers to the order The majority I this classification one for reimbursement. agree that it was intimates the majority subsequently although a order. a “that when majority accepts proposition is but of a child for the
divorce decree provides a mother of child silent as to the support, question her husband former an action maintain against her after the decree moneys expended the courts To its possess child.” buttress position an to enter inherent requiring for child extending reimbursement payments relies upon over a 13-year majority primarily period correctly court. While the two of this majority decisions Plaster v. Plaster facts of summarizes pertinent to note that Ill. 47 interesting (1868), Plaster two decision resulted in appeals subsequent Plaster from the initial decision this court. remand Upon the trial court ordered retroactive to date decree, a 11 years. divorce period approximately “the On order this stated that from this appeal claim for hеr in this expenditures support] regard [child be confined to the five next before should years commencement this suit. The circuit court went this, even This back to the time of the divorce. beyond error, and for the error the must be reversed decree v. Plaster 53 and the cause remanded.” (1870), (Plaster Ill. this court’s culminated in litigation 447.) affirmance lesser award predicated Plaster v. Plaster Ill. five-yeаr period. (1873), Kelley Kelley presents (1925), situation which is dissimilar from factually present case. There service by a divorce was obtained Several months thereafter the circuit court publication. secured personam over the husband. The *8 held court that an order for child could be entered However, the divorce subsequent decree. the child to whom this decree would cоnfer a benefit was an infant at the commencement of the action.
If relief is to be cause, in this granted the would to restrict the majority order for required reimbursement to a to exceed the period five-year interval the commencement immediately preceding action. Under circumstances of this case reimburse- ment should be payments three granted only years beсause the child was for two emancipated years.
I must further with the construc- disagree majority’s tion of 18 of our Divorce Act. It .section interprets as court, provision authority upon conferring defendant, obtains personam of the enter order to child This retrospective relating support. is achieved without consideration of time limitation. any Section 18 must be considered in its It entirеty. provides: decreed,
“When a may divorce is the court make touching such order and maintenance husband, care, wife or children, any as, or of them circumstances parties fit, and the nature of the shall be cases, just and, reasonable in all including default cases, inquiry court respect shall make to the any, children the parties, if and shall make such care, order touching сustody, support and education them, minor children the parties or as shall be proper deemed and for benefit may wife, children. or husband as be, pay case party to the other such sum of money, convey or party personal such real or property, payable or conveyed to be either in gross or by installments alimony, as settlement in lieu of as the equitable. cоurt deems alimony, both, If is awarded to
persons are recipients who of aid under ‘The Illinois Code’, approved Public Aid amended, April wife, shall direct the husband or as the case *9 be, may payments make (1) to the to the Illinois Department recipients persons of Public Aid if the are III, IV, Code, under Articles or V of the or the (2) local governmental responsible they unit their if support for reсipients are under Articles VI or VII of the The Code. permit order Department shall the Illinois of Public Aid unit, governmental be, or the may local the case as to subsequent direct payments directly made children, both, former spouse, person or or to some agency behalf, or upon in their removal of the former spouse rolls; public or children upon from the aid and such and reсipients direction removal of the from the rolls, public aid Department Illinois or govern- local unit, mental as requires, the case give shall written notice of action such to the court. of has has not Irrespective court or in whether alimony payment its decree made an order for the of or may any entry after a decree time of divorce, jurisdiction person of оf upor obtaining for notice, by proper or the defendant service of summons alimony maintenance order for and make such as, of the children the care and spouse and fit, nature shall the evidence and of subsequent to just, no such order and but reasonable decree any in which the may case be made the decree alimony express an waiver of there beеn recites has alimony or in lieu of money property or settlement or a alimony. decree has denied the court its where Section, pursuant to this any order entered In reasonable give may order or such alimony maintenance security for such settlement, enforce or money property or such or alimony and maintenance such payment any manner other money property settlement or court, practices the rules and with consistent with comply willfully party refuses where or to alimony pay and maintenance court’s settlement, or has money property or such perform alimony or unworthy No trust. himself shown period in during the accrue separate maintenance shall comply imprisoned for failure party entitled not be party order. shall court’s A but, remarriage; regard- alimony maintenance either party or death remarriage such less party, party such shall be unpaid entitled to receive the installments alimony settlement in lieu of paid conveyed ordered to be in the decree. may, on application, time, from time to
terminate or make such alterations in the allowance of maintenanсe, care, education, and the custody and support children, appear shall proper. However, reasonable and after the children have majority age, attained the court has to order payments for purposes educational only.” par. Rev. Stat. ch. Section 18 confers a court to enter upon an order based, part, circumstances pаrties. interpreta- majority’s *10 tion of section 18 be construed might permit the father for reimbursement of a of portion if it could that prior be determined support payments were they excessive.
Moreover, that section 18 accept premise “does not restrict as to it order may child connotes that necessarily payment support” entered, effect, if time even may said has been for a emancipated period lengthy time. Section carefully 18 delineated provides relation orders subse- child-support modification. While I that its agree language quent “restrictive,” I find this plain reading cannot the unrestricted provision interpretation This is out by borne placed upon majority. consideration of section the Uniform Reciprocal 1971, Enforcement Act Rev. Stat. ch. Support (Ill. par. for reimburse- 124), specifically provides ment of It is therefore clear support. legislature aware the distinction reimbursement between orders and those orders or future pertaining present section 18 is silent as to the payments, yet former.
In effect has reimbursement majority permitted son, of a who an adult at the time parent action Whilе was commenced. undoubtedly assumed the many years, obligation relief she be entitled must be based either upon statutes or case law. Section 18 does not pertinent the basis for the relief she seeks and under the provide Plaster she be entitled to an second decision would amount based com- five-year period preceding mencement of the suit. RYAN, in this dissent.
GOLDENHERSH and JJ., join (No. 45558. al., et
ELLA HENNIGS v. CENTREVILLE Appellants, al., et TOWNSHIP Appellees.
Opinion Nov. on denial filed 1973. Modified rehearing January