No. 3--96--0090
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
In re MARRIAGE OF ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
JOHN W. ROGERS, ) Tazewell County, Illinois,
)
Petitioner-Appellant, )
)
and ) No. 86--D--534
)
VIOLA (ROGERS) RANDOLPH, ) Honorable
) Michael E. Brandt,
Respondent-Appellee. ) Judge, Presiding.
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JUSTICE SLATER delivered the opinion of the court:
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In this case we must determine the scope of our supreme
court's decision in In re Marriage of Henry, 156 Ill. 2d 541, 622
N.E.2d 803 (1993). In Henry the parties' marriage was dissolved,
and the father, as noncustodial parent, was required to pay $50
per week in child support. Several years later the father was
determined to be disabled and a social security dependent
disability allowance greater than the amount of child support
began to be received by the children. In response to the
father's subsequent petition for modification, the trial court
found that payment of the disability benefits fulfilled the
father's support obligation and relieved him of the requirement
of further payment. The supreme court affirmed, holding that
because disability benefits are earned by the noncustodial parent
and are made on his behalf, "payment of social security dependent
disability benefits satisfies a noncustodial parent's child
support obligation." Henry, 156 Ill. 2d at 552, 622 N.E.2d at
809. Henry overruled In re Estate of Nakaerts, 106 Ill. App. 3d
166, 435 N.E.2d 791 (1982), in which this court refused to credit
social security dependent disability benefits against a father's
child support obligation because to do so "would have amounted to
a retroactive modification of vested support rights." Nakaerts,
106 Ill. App. 3d at 170, 435 N.E.2d at 795. The Henry court
explained that allowing such a credit did not improperly modify
the amount of child support. Instead, "only the method of
payment, or payor, was changed" (Henry, 156 Ill. 2d at 545, 622
N.E.2d at 806), and such third-party payments on behalf of an
obligated parent were permissible (Henry, 156 Ill. 2d at 545, 622
N.E.2d at 806).
In this case, the marriage of the petitioner, John Rogers,
and the respondent, Viola (Rogers) Randolph, was dissolved in
1986. A settlement agreement incorporated into the judgment of
dissolution provided that petitioner was to pay $1000 per month
in child support. At the time the judgment was entered,
petitioner was disabled and social security dependent disability
benefits were being paid. On February 25, 1992, petitioner filed
a petition to modify child support, alleging that respondent had
been receiving $300 per month in social security disability
benefits. Petitioner requested that some of the child support be
placed in a bank account for the child instead of being paid to
respondent. The trial court denied the petition.
On February 15, 1994, petitioner filed another petition to
modify in which he requested his monthly support payment to be
reduced by the amount of social security dependent benefits being
received by respondent. On March 11, 1994, the trial court
entered an order granting petitioner "a credit of $352 on the
$1000 sum the [petitioner] was previously required to pay as
support." On appeal, this court reversed the trial court,
finding that Henry was inapposite and that there had been no
substantial change in circumstances warranting a modification of
child support. In re Marriage of Rogers, No. 3-94-0409 (1994)
(unpublished order under Supreme Court Rule 23). On April 5,
1995, petitioner's petition for leave to appeal was allowed by
the Illinois Supreme Court and the following supervisory order
was entered:
"In the exercise of this Court's
supervisory authority, the judgment of the
Appellate Court, Third District, in case No.
3-94-0409 is VACATED. This cause is REMANDED
to the Circuit Court of Tazewell County with
directions to reinstate its order in case No.
86-D-534 in favor of petitioner John M.
Rogers allowing him credit for the past and
future social security dependent disability
benefits received by his ex-wife for the
benefit of their minor child without regard
to any substantial change in circumstances or
the lack thereof, pursuant to In Re Marriage
of Henry (1993), 156 Ill. 2d. 541." 161 Ill.
2d 539, 647 N.E.2d 586 (1995).
On May 25, 1995, petitioner filed a "Petition to Recover
and/or Receive Credit for Overpayment" in which he sought to have
all previous social security dependent disability payments,
dating back to the time of dissolution, credited against his
remaining support obligations. According to testimony at the
subsequent hearing, the amount of overpayment amounted to either
$27,491 or $28,648. The trial court stated that it did not
believe that Henry would allow a person to "proceed ab initio,
back to day one, in terms of credit, at least as applied to the
facts of this case." The court ruled that from the time the
parties' marriage was dissolved in 1986 until October 21, 1993,
when Henry was decided, this court's decision in Nakaerts was
controlling. The court therefore held that petitioner was only
entitled to credit for social security payments made after
October 21, 1993. Petitioner now contends on appeal that he
should have received credit for all previous social security
payments made on his behalf.
The general rule is that no credit is given for voluntary
overpayments of child support, even if they are made under the
mistaken belief that they are legally required. In re Marriage
of Olsen, 229 Ill. App. 3d 107, 593 N.E.2d 859 (1992); In re
Marriage of Tollison, 208 Ill. App. 3d 17, 566 N.E.2d 852 (1991).
The rationale supporting the rule is that such a credit would
amount to a unilateral modification of the dissolution judgment
and could result in the deprivation of future support benefits.
Olsen, 229 Ill. App. 3d 107, 593 N.E.2d 859; Tollison, 208 Ill.
App. 3d 17, 566 N.E.2d 852. Exceptions to the rule have been
recognized where the equities of the circumstances so demand and
where allowing the credit will not work a hardship. Olsen, 229
Ill. App. 3d 107, 593 N.E.2d 859; Tollison, 208 Ill. App. 3d 17,
566 N.E.2d 852.
There is no question that this case falls outside the
general rule, since our supreme court has ordered that petitioner
should be allowed credit "for the past and future social security
dependent disability benefits received by his ex-wife." The only
question is what the court meant by "past" benefits. Allowing
credit, as the trial court did, back to the date of the Henry
decision encompasses "past" benefits, but not all of those past
benefits. In effect, the trial court's ruling gave Henry
prospective, rather than retroactive, application.
As a general rule, decisions by our supreme court apply to
all cases that are pending when the decision is announced, unless
the court directs otherwise. People v. Granados, 172 Ill. 2d
358, 666 N.E.2d 1191 (1996); Lannom v. Kosco, 158 Ill. 2d 535,
634 N.E.2d 1097 (1994). However, the court has the inherent
power to declare that a decision will apply prospectively only.
Lannom, 158 Ill. 2d 535, 634 N.E.2d 1097. This case was not
pending when Henry was decided, but was filed subsequent to
Henry, and therefore questions of retroactivity would not
ordinarily arise. However, because the relief which the
petitioner seeks is credit for payments made before Henry was
decided, we believe that the appropriate analysis is whether the
supreme court intended Henry to be applied retroactively or
prospectively.
"[W]hether a ruling will be applied
prospectively will depend upon whether the
decision to be applied nonretroactively
establishes a new principle of law, either by
overruling clear past precedent on which
litigants may have relied, or by deciding an
issue of first impression whose resolution
was not clearly foreshadowed. If either of
these criteria is met, the question of
prospective or retroactive application will
be answered by considering whether, given the
purpose and prior history of the rule, its
operation will be retarded or promoted by
prospective or retroactive application and
whether prospective application is mandated
by a balance of equities." Bogseth v.
Emanuel, 166 Ill. 2d 507, 515, 655 N.E.2d
888, 892 (1995).
Although Henry overruled Nakaerts, there was, at that time,
precedent from the fifth district holding that social security
dependent disability benefits satisfied a parent's child support
obligation. See Childerson v. Hess, 198 Ill. App. 3d 395, 555
N.E.2d 1070 (1990). Therefore, Henry did not overrule clear past
precedent, since the rulings of this court were in conflict. See
Granados, 172 Ill. 2d 358, 666 N.E.2d 1191 (there is only one
Illinois Appellate court). However, we believe that Henry
decided an issue of first impression whose resolution was not
clearly foreshadowed. As we indicated, the rulings of this court
were conflicting. Furthermore, other jurisdictions which had
decided the issue were split between those which allowed a credit
and those which did not. See Henry, 156 Ill. 2d 541, 622 N.E.2d
803 and cases cited therein. Indeed, Henry itself was not a
unanimous decision. See Henry, 156 Ill. 2d 541, 622 N.E.2d 803
(Heiple, J., dissenting). We therefore next consider whether
operation of the rule announced in Henry "will be retarded or
promoted by prospective or retroactive application and whether
prospective application is mandated by a balance of
equities." Bogseth, 166 Ill. 2d at 515, 655 N.E.2d at 892.
It is evident that operation of the rule announced in Henry,
allowing social security benefits to satisfy a parent's child
support obligation, will not be advanced by limiting it to
prospective application. However, if the purpose of the rule is,
as it appears to be, to provide fairness to both custodial and
noncustodial parents, while ensuring that the child's needs are
met, then the individual circumstances of each case must be
considered. In this case the record indicates that respondent's
expenses exceed her monthly income and she has few assets. On
the other hand, petitioner's monthly income is approximately
twice that of respondent, and he receives a $100,000 payment
every five years from an annuity. It appears that granting
petitioner a credit for all past social security payments,
thereby relieving him of further child support obligations, would
create a windfall for petitioner and entail a great hardship for
respondent and the parties' child. While issues involving
dissolution and child support are statutory, "such proceedings
partake so much of the nature of a chancery proceeding that the
rules of equity are applicable." Henry, 156 Ill. 2d at 549, 622
N.E.2d at 808. "[E]quitable remedies are a special blend of what
is necessary, what is fair, and what is workable." Lemon v.
Kurtzman, 411 U.S. 192, 200, 36 L. Ed. 2d 151, 161, 93 S. Ct.
1463, ___ (1973). In this case we find that the trial court's
ruling struck an appropriate balance between the rights of the
petitioner and the needs of his ex-wife and child. We therefore
affirm the trial court's ruling granting petitioner credit only
for social security payments made after October 21, 1993, the
date Henry was decided.
For the reasons stated above, the judgment of the circuit
court is affirmed.
Affirmed.
BRESLIN, P.J., and HOLDRIDGE, P.J., concur.