*1 invasion, however, murder will convictions for and home this eventual to ci considerably delay defendant’s return addition, vilian life. In the defendant’s present guilty to the formed of his plea robbery charge part plea armed contrast, agreement prosecution; multiple with the convictions entered in Davis from trial. Ac resulted we not believe that vacatur of the defend cordingly, do ant’s and sentence armed robbery ap conviction in this necessary case. propriate stated,
For the reasons judgment appellate court, of the circuit court of affirming judgment Madison is affirmed. County,
Judgment affirmed. JUSTICE HARRISON took no part the consider- ation or decision of this case.
(No. 74406. In re MARRIAGE OF CZARIST HENRY and JOSEPH
HENRY, (The Appellee State of Illinois People ex rel. Aid, Department Public Appellant). 21, 1993.
Opiniоn October filed HARRISON, J., part. no took HEIPLE, J., dissenting. *2 Burris, General, of Springfield, Attorney
Roland W. of Edwardsville Haine, State’s Attorney, and William General, and Robert G. Solicitor Kaplan, B. (Rosalyn Nor- General, of and Toews, Chicago, Assistant Attorney Arnold, R. E. Goetten, Gerry Norris Stephen bert J. Prosecu- Appellate of the State’s Attorneys of the Office tor, Vernon, counsel), of for appellant. of Mt. for appellee.
No appearance opinion delivered JUSTICE NICKELS court: (Department), Aid Illinois Public Department
The matter as in rights her assigned to which petitioner this (West ILCS 15/2.1 (see aid public a recipient court that pay finding 1992)), trial appeals allowance disability dependent ment of a social security respondent’s fulfilled daughter minor to the parties’ which during for those months child support the appellate whiсh finding was paid, the allowance 5—89—0390 (No. in an order affirmed unpublished Rule We 23)). Court under Supreme (unpublished leave to appeal for petition Department’s allowed the court. affirm the appellate R. and now 315) Ill. 2d (134 her In Czarist filed a dissolve Henry petition marriage Henry, which respondent, Joseph further granted. judgment Joseph pay required in for the two chil- week per parties’ $50 dren, Cаmmee, Aaron and in 1968 and 1974 respec- born However, failed to meet his child tively. Joseph in again and as a result 1983 and obligations, orders for amount original were entered of child of an additional amount support plus payment addition, towards the In an order for arrearage. withholding and a turnover order State against Joseph's and Federal income tax entered. refunds were contacted the trial court February Joseph letter, the trial court treated as a petition which modification. letter indicated that Specifically, Joseph’s Aaron, who was to turn 21 age, about had been years for three also self-supporting indicated years. Joseph that he had been found 1987 and disabled October that a social security allowance well depеndent in excess of Joseph’s child had support obligation begun at that time. himself had Although Joseph also been re- *3 ceiving public aid since 1987 and had the De- contacted partment in an to relief from his child attempt obtain he support obligation, continued to charged be with such His obligation. letter further indicated that between 1985 and his wages had garnished been as ordered and his tax refunds toward the applied arrearage. On record, this stipulated the trial court found that “it would be to find that inequitable did not fulfill [Joseph] his October, 1987” support commencing when of the social payment bene- security dependent disability had fits child begun, accordingly Joseph’s support was in arrears 1987. only through September
The and the court re- Department appealed, apрellate versed and remanded for modification of the trial court’s However, order. because had not filed a brief in Joseph court, trial court appointed
the the counsel for appellate the a in seeking rehearing the purpose appellate court. The for was the rehearing granted, appel- petition late court vacated its order and entered a modi- previous stated, fied order trial court’s As affirming findings. Department’s petition appeal leave granted. may
The issue is not whether a trial court presented or alter a entered order retroactively modify previously for child Dissolution of and collateral support. marriage matters such as child are in support entirely statutory v. (Strukoff and nature 76 Ill. 2d origin (1979), Strukoff and, light legislature’s clear pronounce ment maintenance judgment “any respecting modified as to installments only accruing bemay a to due notice trial subsequent moving party,” has no a child authority retroactively modify (750 5/510(a) (West 1992)), ILCS unlike (see (Law. other States Mass. Ann. Laws ch. §37 1984) Proc. Co-op. 1981); (Deering Cal. Civ. Code §2705 for social (credit security disability payments required)). contrast, In the issue the instant whether аppeal of a social allow payment security dependent ance on behalf of the satisfied such obligated parent par ent’s child support obligation. in Fin relies on this court’s decision Department
ley Finley 81 Ill. together prece with dent from the State of of which in Washington, both Court, Dis turn were the basis of the Third Appellate Nakaerts In re Estate of trict’s decision further relies. Ill. on which the Department the Nakaerts court, like the However, conclude that we Finley too here, holding interpreted Department broadly. Finley, a obliged this court held that undifferentiated single,
make 545 such reduce unilaterally children could not for several (Fin rata as each child reached majority. pro a de no that dispute 81 Ill. 2d at There can be ley, a modifica in the аmount of child works support crease Ill. 2d at which (Finley, order 81 tion of a support (West (750 5/510(a) ILCS authority the court’s beyond however, trial instance, In contrast in this 1992)). amount of child support. court did not reduce the that the 1985 trial court expressly provided below Thus, the in full force and effect. continued support security dependent found that social merely trial court of the noncustodial par on paid benefits behalf child ent satisfied that parent’s support received, were and only such benefits period own changed. method of Our payment, payor, simi for an order of withholding contemplates provision lar on of an obligated behalf third-party payments par Sullivan ent. 750 5/706.1 see also (West 1992); ILCS n.3, L. Stroop 496 U.S. 488 110 Ed. 2d n.3, (Blackmun, J., 110 S. Ct. 2506 n.3 dis Marshall, & senting, JJ.). Brennan joined by amount Further, the rationale thаt required than that a second child is less incrementally one child this court’s de- necessary supported Finley. cision in refer to such as phenomena Economists in the simi- economies of scale. Common sense resulted Bo- can as one. (See lar that two live as adage cheaply wen v. L. Gilliard 587, 599-600, 483 U.S. Ed. 107 S. Ct. ‘common sense (“ living usually that individuals with others proposition their ex- have reduced costs because per capita many are shared’ own has codified penses ”).) legislature Our in the statutory such commonsense and economic theory which reflect guidelines for establishing support, that a net income is neces- 20% of noncustodial parent’s child, single incrementally but sary *5 an additional only 5% is needed for a second child. (750 ILCS 5/505(a)(l) (West 1992).) Finley’s however, is logic, not applicable in a situation such as this where only method of was altered payment and the amount of child remained unchanged. Nakaerts,
Like the court the Department also fur ther relies on from precedent the State of Washington. Washington among of minority jurisdictions have held that credit for the of social payment security dependent allowances is an disability ret impermissible (See Hinckley roactive modification of a support order. v. Hinckley (Wyo. 1991), Arnoldt v. 907; 812 P.2d Arnoldt 147 Misc. (1990), 37, 396; 554 N.Y.S.2d Guthmiller v. Guthmiller (N.D. 1989), 643; 448 N.W.2d Gerlich v. Gerlich (Minn. 689; 379 App. 1986), N.W.2d Zirkle v. Zirkle (1983), 211, 664; 172 W. Va. 304 S.W.2d In re Marriage Cope 412, 291 (1981), Or. 631 P.2d of 781; Fowler v. Fowler 156 (1968), 569, Conn. 244 A.2d v. Chase Chase 375; 74 (1968), 253, Wash. 2d 444 P.2d 145.) However, overwhelming majority jurisdic tions have held that a social security depen dent allowance on paid behalf of a noncustodial satisfied such parent’s support obligation. (See Hanthorn v. Hanthorn (1990), 225, 236 Neb. 460 Board v. Board 650; N.W.2d 380; 690 (Ky. 1985), S.W.2d Justice v. Scruggs (1985), 165, 286 106; S.C. 332 S.E.2d Bowden v. Bowden (Ala. Civ. 426 So. 2d App. 448; In re Meek Marriage (Colo. 669 App. 1983), P.2d 628, 630; Children & Youth Services v. Chorgo (1985), Folds v. Lebert (La. 512, 341 Pa. Super. 1374; 491 A.2d Mooneyham v. Mooneyham App. 1982), 715; 420 So. 2d Davis v. Davis (Miss. 1982), 1072; 420 So. 2d 141 (1982), In re Marriage Denney (1981), 398, 947; Vt. 449 A.2d 115 Cal. 171 Cal. 440 ex Rptr. (statute for pressly provides credit social security payments); Newton v. Newton (Mo. 23; 622 App. 1981), S.W.2d
547 579; Mask 309, 609 P.2d (1980), v. Ariz. Lopez Lopez v. 883; 229, 620 P.2d 95 N.M. (1980), v. Mask Griffin v. 175; Perteet 424 A.2d 120 N.H. (1980), Avery 453; Potts v. 246 Ga. S.E.2d (1980), Sumner v. Andler 680; Andler 240 N.W.2d (Iowa 1976), Potts v. 649; P.2d Cash Cash 217 Kan. Moreover, find the we 234 Ark. S.W.2d Chase, on Chase logic Washington re the Nakaerts court Department which both lied, flawed. of social security- court ruled that receipt Chase circum- change benefits was
dependent disability stances, considered with all other circumstances to be 74 Wash. only. (Chase, and to considered prospectively be *6 at court went on to 149.) 2d at 444 P.2d Chase 259, circumstances, as the non- list other such possible in the interim of an inheritance custodial parent’s receipt benefits, of circumstances in or retirement as examples which security dependent no credit social payment (Chase, would 74 Wash. disability benefits be warranted. surface, at P.2d at the such is 149.) logic 2d On appealing.
However, it was the Chase court’s cir- hypothetical cumstances, rather than the of social payment security benefits, that its dependent disability actually supported and conclusion that no credit for the reasoning payment the social benefits on behalf of obli- security disability gated was warranted. the Chase Effectively, relied on the circumstances it created to in- hypotheticаl crease the amount of an amount to the support by equal credit for of the social dis- security dependent benefit on How- ability obligated parent. behalf ever, to increase the amount of because modification the effect support permissible only prospectively, court’s reliance on its circum- hypothetical Chase
stances resulted in the exаctly impermissible retroactive modification it sought to avoid. the
Similarly,
Chase court also speculated that
noncustodial parent might
have
originally
indepen
been
dently
(
Finally, although such hypothetical circum stances as envisioned by the Chase court are real hardly Rather, istic. it is an inescapable conclusion that a deter mination of for social eligibility security dependent disability benefits occurs when a only parent becomes unable to generate income to meet his child obli gations. Childerson v. Hess Ill.
399; Schulze v. Jensen (1974), 191 Neb.
N.W.2d 594. not Although cited Department, United States Court in Supreme a divided opinion found that so- *7 cial security dependent benefits not were “child support payments” to the subject disregard provision under the Aid to Families with Dependent Children (AFDC) pro- gram of A of title part IV of the Social Security Act. (Sullivan v. 478, 496 Stroop (1990), U.S. 110 L. Ed. 2d 438, 2499; 110 S. Ct. 42 U.S.C. §602(a)(8)(A)(vi) (1988) ($50 “child support payments” not included in com-
549
or recoup-
of receipt
for purpоses
income
puting family
on
was based
However, such conclusion
of AFDC).)
ment
use of the
of the legislature’s
interpretation
the Court’s
the applicable provi-
throughout
term “child support”
expression
clear and unambiguous
as a
sions of title IV
non-
obligations
of support
actual
only
payments
(Sullivan,
included.
were to be
custodial parents
445-46,
L. Ed. 2d at
S.
however,
conclusion, although finding
noted,
sents
such
construction, contravened
of statutory
in canons
ben-
of social security dependent
the nature and purpose
447-
Sullivan,
The canons of statutory
however,
our legislature
limit our
because
larly
inquiry,
аnd Dis
in the Illinois Marriage
has
no indication
given
here of such a nar
Act
Marriage
applicable
solution of
of the term “child
interpretation
row and constrained
and
matters of child
and
support payments,”
His
(see
the States
law are the
family
province
572, 581, 59 L.
439 U.S.
quierdo Hisquierdo
addition,
although
808).
99 S. Ct.
Ed. 2d
are purely
of support
and its collateral issues
dissolution
such
(Strukoff,
60),
proceedings
76 Ill. 2d at
statutory
chancery proceeding
the nature of a
so much of
partake
(Finley,
81 Ill. 2d
are applicable
that the rules
equity
Bremer v. Bremer
4 Ill. 2d
332;
at
another source
from
satisfaction of a support
Mask,
amount
of child
is
prohibited
(750 ILCS 5/
510(a)(West 1992)), a distinction exists between “credit
an
ing
with
obligation
made
from
payment
another
source and
or
increasing,
oth
decreasing
terminating,
(Board, 690
erwise
a
dollar amount”
modifying
specific
381; Hanthorn,
230-31,
S.W.2d at
dent benefits 628, 634, 41 L. Ed. 2d 417 U.S. v. Weinberger death 363, 369, 2496, 2500.) security Ct. S. “[S]oеial contributed earned and money benefits represent ***, which pay of a working parent the efforts through of an insurance substi ments, policy, like the proceeds *** he tute income to the worker’s should be family as Meek, 669 P.2d at (In Marriage come disabled.” re 630; Childerson, 399.) 198 Ill. 3d at “The funda App. is a form of system mental nature of the social security insurance in sense of that word” with the every premi the in the form employee ums for such insurance paid by his wages throughout of deductions from his salary life. 198 Ill. 3d at Social working (Childerson, the replace benefits security dependent disability wage respon child loses the earner upon (Tsosie (9th sible for the child’s Cir. Califano 1328, 1337), 630 F.2d and such benefits substitute and earning for a loss parent’s power his v. Jensen dependents (Schulze Thus, the source 594). 214 N.W.2d Neb. of soсial benefits are security dependent and purpose of child support— identical to the source and purpose or assets wages come from a noncustodial parent’s both child dependent needs provide both L. Ed. 2d at 110 S. 496 U.S. at (Sullivan, J., Brennan (Blackmun, dissenting, joined by Ct. at 2505 & Marshall, JJ.)), and, for our “no purposes, principal distinction exists between social security benefits and child support payments” (Bradley v. Austin (6th Cir. 1988), 841 1288, 1296 F.2d (due process challenge)).
We conclude that because social security dependent disability benefits are earned noncustodial parent, made on behalf of such parent, and, fact, at paid least with part contributions from the noncustodial’s own earnings, social security dependent disability benefits satisfies a noncustodial parent’s child suрport obligation. The judgment appellate is af- firmed.
Affirmed. JUSTICE HARRISON took no in the part consider- ation or decision of this case. HEIPLE,
JUSTICE dissenting: Joseph Henry, divorced in was under a court order to pay per week $50 He support. was de- linquent. By his totaled arrearages $10,000. nearly *10 In October of Joseph was to determined be dis- abled the Social Security Administration and to began receive Social Security checks. disability His dependent child also began to receive a dependent’s Social Security allowance in the amount of month. per $421 Later, February Joseph wrote to the trial court and that requested his child order be modi- support fied. At time, that his arrearages $13,000. exceeded
The decision announced establishes the today princi- that ple shall receive full credit ab initio for all Joseph Social Security payments made to his child satisfac- tion of both his accumulated and his arrearages current support obligation without to any necessity obtain a modification of the child order. support This is new law for Illinois. It is also unfortunate. It amounts to a sub child support of a modification and retroactive silentio In re Seе to order, impermissible. deemed be previously 166; Chase Ill. Nakaerts Estate of 145. P.2d 74 Wash. Chase that a child The law has been always the court when to application modified upon could be That a modification. warranted circumstances changed is not a serious burdensome not and requirement instant upon parties. to impose imme- for a modification could have casе, applied Joseph He not. his did disability. the occurrence of diately upon 16 months before Rather, he delayed approximately a modification. requesting statewide applica- such as this now have
Adjustments and automatically silently. tion. will take They place cir- changed reference to without any will They apply The trial children. or the either cumstances and Confusiоn, uncertainty not be advised. court will other credits will result. What misunderstandings will Perhaps obligations? discharge apply If had Joseph purchased creative will tell us. lawyers came aup ticket to his child which and given lottery winner, delinquent obligations? that his discharge would child sup- precept in this case is ignored Also child, be- for the though port payments, the child. not parent, to the custodial long аp- that were linguistics and creative legalisms is presum- what justify in this case plied explain unfore- result will have an equitable deemed be ably into that will resound and unfortunate results seen dissent. I given, respectfully future. For the reasons notes correctly son arose in the context of a challenge to the trial court’s discretion to set the initial amount of support. However, the issue was resolved as a question whether social security dependent disability benefits parent’s satisfied noncustodial child 'support is obligation, which identical to the issue here. presented we note that when are vol Initially, made payments and are not made untarily for the benefit of the non custodial such are parent, payments merely gratuitous. (In re Robinson 151 (1986), 214, 224-25.) Ill. contrast, however, to right social benefits is security (Flemming Nestor 603, earned. 609, 363 U.S. 4 L. Ed. 1367, 80 Ct. S. “[A] compelled legally worker aside a of his set portion his de wages to earn benefits used pendent children in the event he becomes do unable (Sullivan, so himself.” U.S. (Emphasis 496 original.) at 110 L. Ed. 2d at S. at (Black- Ct. mun, J., dissenting, joined Marshall, JJ.).) Brennan & social benefits and the amount Eligibility security record of earnings pri on “the depends such benefits 363 U.S. v. Nestor beneficiary.” (Flemming mary 1367, 1371.) 1435, 1443, 80 S. Ct. 4 L. Ed. 2d are benefits Thus, dependent social security 399; 3d at 198 Ill. App. (Childerson, not gratuitous are gener P.2d at but Andler, 217 Kan. at