In re Marriage of Reimer

No. 3-07-0566
______________________________________________________________________________
Filed January 14, 2009
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2009
______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court
) for the 12th Judicial Circuit,
LORIANNE REIMER, a/k/a ) Will County, Illinois,
Lorianne Aztlan, )
)
Petitioner-Appellant, )
) 91-D-160
and )
)
THOMAS REIMER, ) Honorable Robert P. Brumund
) Judge, Presiding.
Respondent-Appellee. )
______________________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________

Petitioner, Lorianne Reimer appeals from the trial court’s order requiring her to pay

respondent, Thomas Reimer, child support arrearages in the amount of $59,299.42. Petitioner

also appeals from the court’s order requiring her to pay respondent’s counsel the sum of $1,755

in fees and costs. We reverse and remand for further proceedings.

FACTS

On January 7, 1991, petitioner filed an action for dissolution of her marriage to

respondent. The parties were eventually granted a supplemental judgment for dissolution of

marriage on May 9, 1991. Pursuant to the terms of that judgment, petitioner was awarded
residential custody of the parties’ three children. Petitioner retained residential custody of the

children until June 18, 1991, when respondent was awarded sole custody pursuant to an

emergency order of protection. A subsequent order requiring petitioner to pay respondent child

support at the rate of $85 per week was entered on October 20, 1992.

On December 20, 1993, respondent filed a petition through the Will County State’s

Attorney’s office seeking payment of child support arrearages. On March 2, 1994, petitioner filed

a petition to abate child support alleging a loss of employment. The trial court’s minutes reflect

that a support arrearage of $3,695 was found on that same day. On March 30, 1994, the trial

court entered an order: (1) denying any finding of contempt, (2) abating petitioner’s obligation to

pay child support to respondent, (3) requiring petitioner to maintain a job search diary, and (4)

continuing the matter for status on April 27, 1994. The specific portion as to the abatement of

support stated:

“All support due and owing by [petitioner] is hereby abated nunc

pro tunc to March 2, 1994, the date of the filing of her petition to

abate.”

The court subsequently held multiple status hearings concerning petitioner’s employment

efforts. Finally, on December 21, 1994, the trial court’s minutes reflect that the matter was

continued generally on the motion of the State. Petitioner filed no further pleadings regarding the

abatement of child support.

The parties’ three children remained in the residential care and custody of respondent from

the effective date of the abatement, March 2, 1994, through their respective dates of

emancipation, except when two of the children were in the care of the State of Illinois due to

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emotional problems. Specifically, the eldest child was in the care of the State from February 1995

to April 1997. The youngest child was in the care of the State from March 1996 to April 1997.

Respondent received no financial support from the State or child support from petitioner

subsequent to the effective date of the abatement.

On May 11, 2006, respondent filed a pro se pleading seeking to collect child support

arrearages owing pursuant to the trial court’s order dated, October 20, 1992. On July 3, 2006,

respondent filed a three-count pleading seeking collection of the previously adjudicated arrearage,

a contempt finding for failure to report employment, and adjudication of arrearages accruing

during the abatement period. Count I was resolved by agreement of the parties by virtue of

petitioner’s tendering of $7,355.26 toward satisfaction of the March 2, 1994, arrearage

adjudication. Counts II and III were repled as amended count III. Respondent’s amended count

III pleading included a letter dated May 12, 2003, from petitioner and her new husband to

respondent. The letter states, in pertinent part:

“The tactic to avoid her having to pay child support was to

send her to school, and it worked; she graduated two years ago and

is now teaching full time in private school, and she never had to pay

a cent in child support or tuition, because of the desperate need for

teachers. So we actually came out ahead on that one.”

Petitioner filed a response to respondent’s amended count III. The response alleged the

affirmative defenses of equitable estoppel and laches.

After the matter was continued on multiple occasions, the court conducted a three-day

hearing on respondent’s amended count III. Respondent testified that he made no attempts to

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contact petitioner between 1994 and the date he filed his initial pro se pleading in 2006, stating

that he did not know where petitioner lived and that he was afraid of petitioner’s new husband.

Respondent acknowledged having a service address for petitioner in 1994, but was unaware if

that address was still valid after 1994. Respondent was unable to identify Supreme Court Rule

296 (134 Ill. 2d R. 296).

Petitioner also testified that she was unaware of Rule 296 or the law concerning

abatement. She stated that she did not have any idea that she had to pay child support after

March 1994. She testified that her understanding of abatement was that she did not have to pay

child support while she was unemployed. She admitted that she turned down multiple offers of

employment in favor of educational pursuits. She did not apply for any jobs while pursuing her

degree. She earned her degree in December 2001 and obtained employment in March 2002.

Petitioner earned $22,906 in gross income during the year of 2002 and $36,300 during the year of

2003. Petitioner made no efforts to contact respondent prior to her letter dated May 12, 2003.

On June 11, 2007, the court declined to hold petitioner in indirect civil contempt.

However, the court found that petitioner owed respondent a child support arrearage from March

30, 1994, to February 26, 2003, in the amount of $85 per week. Specifically, the court, relying

upon Rule 296(f), found that as of November 22, 2006, petitioner owed respondent a child

support arrearage with interest in the amount of $59,299.42. The court rejected petitioner’s

affirmative defenses of equitable estoppel and laches, stating:

“So there is no confusion again, [the court’s order dated

October 20, 1992,] obligated [plaintiff] to pay to [respondent] the

sum of $85.00 per week. Sometime prior to March 30, 1994,

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 actually March 2, 1994, [plaintiff] requested the court by and

through an attorney that her obligation to pay support be abated,

not suspended. The clear language of the order and the clear

language of the motion did not request a suspension. It requested

an abatement. Whether or not the attorney for [plaintiff] at the time

knew the difference, she knew the difference or anybody else knew

the difference, there was, in effect at the time Rule 296, which

provides in part that a party may seek a temporary abatement of

support. That temporary abatement of support is in existence for a

period of six months. And any period of abatement which a party

seeks to have thereafter they must come in and request the court to

do so. It further provides that the support shall continue to accrue

at the same amount which was abated. That’s my understanding

and belief of the interpretation of *** Rule 296[f].”

Counsel for respondent also filed a petition for attorney fees seeking contribution from

petitioner. The balance of counsel’s fees was $2,708. The parties each provided the trial court

with financial disclosure statements. Petitioner’s amended affidavit reflects budgetary expenses of

$3,841. This amount includes the monthly $750 arrearage payment petitioner was obligated to

pay respondent. Petitioner’s affidavit reflects net monthly income of $3,119. Petitioner testified

that she satisfies 40% of her reported expenses and her husband satisfies the remaining 60%.

Respondent’s affidavit reflects household expenses of $4,246 and net monthly income of $4,910.

On July 13, 2007, the court entered an order finding the fees and costs pled to be usual,

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customary and reasonable. The order also required petitioner to pay respondent’s counsel the

sum of $1,755 in fees and costs.

Petitioner now appeals the trial court’s orders requiring her to pay respondent $59,299.42

in arrearages and respondent’s counsel $1,755 in fees and costs.

ANALYSIS

In this appeal, petitioner first contends that the trial court erred in finding that she owed

respondent a child support arrearage with interest in the amount of $59,299.42. Petitioner

presents three arguments in support of this assertion. Initially, petitioner contends that the court

erred by not applying the doctrines of (1) equitable estoppel and (2) laches to respondent’s claim

that petitioner owed past-due child support when respondent has not attempted to enforce the

support order since 1994. Additionally, petitioner argues that the trial court erred in relying upon

Rule 296(f) because the Will County Judicial Circuit has yet to specifically adopt Rule 296. We

begin by discussing the relevant case law concerning abatement and Rule 296.

At the outset, we note that Illinois “courts have long possessed the authority to abate

support under certain circumstances.” People ex rel. Greene v. Young, 367 Ill. App. 3d 211, 216,

854 N.E.2d 300, 305 (2006). In Coons v. Wilder, 93 Ill. App. 3d 127, 416 N.E.2d 785 (1981),

the trial court abated half of respondent’s monthly support obligation from December 1977 until

January 1, 1980, at which time the support would resume at 1.5 times the original payment until

all abated payments were satisfied. Coons, 93 Ill. App. 3d at 130, 416 N.E.2d at 789. On appeal,

the Second District stated “[w]e find no authority in the Act *** for the proviso ordered by the

court that the *** balance of the original support order would only temporarily abate and would

continue to accrue as an eventual obligation to be paid.” Coons, 93 Ill. App. 3d at 134, 416

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N.E.2d at 792. Coons clearly held that payments cannot accrue while the support obligation is

abated. Coons, 93 Ill. App. 3d at 134, 416 N.E.2d at 792.

Eight years after the Coons decision, our supreme court promulgated Rule 296, entitled

“Enforcement of Order for Support.” 134 Ill. 2d R. 296. Rule 296(f) governs a petition for

abatement and states the following:

“Upon written petition of the obligor, and after due notice

to obligee (and the Department of Public Aid, if the obligee is

receiving public aid), and upon hearing by the court, the court may

temporarily reduce or totally abate the payments of support, subject

to the understanding that those payments will continue to accrue as

they come due, to be paid at a later time. The reduction or

abatement may not exceed a period of six months except that, upon

further written petition of the obligor, notice to the obligee, and

hearing, the reduction or abatement may be continued for an

additional period not to exceed six months.” (Emphasis added.)

134 Ill. 2d R. 296(f).

The committee comments to Rule 296(f) state:

“This paragraph applies only to the short-term inability of

the obligor to pay support due to a temporary layoff from

employment or other factors. It recognizes that obligors often

become temporarily unemployed, rendering them unable to meet

their support obligations. This provision is short of a written

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 modification of the Order for Support. It allows the obligor to

petition the court, prior to the filing of a petition for adjudication of

contempt, for an opportunity to repay those amounts in small

increments after employment is regained.

This rule is contrary to the holding of the appellate court in

Coons v. Wilder, (1981) 93 Ill. App. 3d 127, [416 N.E.2d 785,] in

which the court stated, ‘We find no statutory or case authority for

the trial court to temporarily abate that portion of a support order

the supporting parent is without means to presently pay ***.’

[Coons,] 93 Ill. App. 3d at 135 [, 416 N.E.2d at 792].

The obligor has the option of filing for a modification of the

Order for Support under section 510 of the Illinois Marriage and

Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510)

[(now 750 ILCS 5/510 (West 2006))]. If a court may modify an

Order for Support under section 510 of the Act, it follows that it

may also temporarily abate the Order for Support, subject to

accrual, during a period of temporary unemployment of the

obligor.” 134 Ill. 2d R. 296(f), Committee Comments, at 225-26.

The trial court relied upon Rule 296(f) in determining that petitioner owed respondent a

child support arrearage with interest in the amount of $59,299.42. Petitioner contends that the

trial court erred in relying upon Rule 296(f) to determine that she owed respondent past-due child

support. Specifically, petitioner cites subsection (n) of Rule 296 for the proposition that Rule

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296(f) is not applicable to the instant case. Rule 296(n) states the following:

“Effective Date. The Supreme Court will authorize

experimental sites to operate pursuant to this rule, in counties in

which both the chief circuit judge and the clerk of the circuit court

have agreed to undertake the experimental use of the procedures

contained herein, and have jointly sought the Court’s permission to

do so, by filing a petition with the Administrative Director.” 134

Ill. 2d R. 296(n).

The committee comments to Rule 296(n) state:

“In those counties in which the chief judges and the clerks

of the circuit courts agree to participate in an experimental

installation, and petition the Administrative Office for leave to

implement it at this time, the rule would allow the Supreme Court

to authorize a county to operate under the new rule.” 134 Ill. 2d R.

296(n), Committee Comments, at 230.

Here, petitioner alleges that Will County is not one of the counties which has petitioned

the supreme court for authorization to employ the provisions of Rule 296. Respondent does not

dispute this claim. Instead, respondent argues that the mere existence of Rule 296 provides

authority for a court in a county which has not adopted the rule to abate support payments subject

to accrual of the abated amount. Respondent cites In re Marriage of Fink, 275 Ill. App. 3d 960,

656 N.E.2d 1131 (1995) in support of his claim.

The Attorney General in Fink filed an intervening brief because the respondent raised a

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peripheral challenge to the constitutionality of Rule 296. The respondent, a resident of Piatt

County, had argued that if accrual of the reduction of his child support payments to be repaid at a

later date was mandatory pursuant to Rule 296, the rule denied him equal protection of the laws

because he would not be subject to such an accrual if he were living in a county which had not

adopted the rule. The Fourth District, relying on its earlier decision in In re Marriage of Horn,

272 Ill. App. 3d 472, 650 N.E.2d 1103 (1995), found no constitutional violation. Specifically, the

court stated:

“We note that Piatt County has chosen to operate pursuant

to Rule 296. [Citation.] This court has held that the existence of

Rule 296 provides authority for a court in a county which has not

adopted the rule to abate support payments subject to accrual of the

abated amount in appropriate circumstances. [Citation.] [The

respondent] has not been denied equal protection of the laws by

virtue of the fact that he resides in a county which has adopted the

rule.” Fink, 275 Ill. App. 3d at 965-66, 656 N.E.2d at 1135.

The respondent in Horn filed a petition to modify child support in the trial court of Macon

County after his union went on strike. The trial court reduced the payments but also ordered that

the original child support order would be reinstated the first Friday after the strike ended. While

the pertinent question on appeal was whether the respondent’s voluntary participation in the strike

constituted a legitimate basis for reducing support, the Fourth District took the opportunity to

address Coons and the applicability of Rule 296 in a county which has not adopted the rule.

Specifically, the court stated:

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 “We recognize the court in Coons observed there was no

statutory or case authority for the trial court to temporarily abate a

portion of a support order the supporting parent was without

present means to pay. [Citation.] As a general rule, that principle

is correct since the Illinois Marriage and Dissolution of Marriage

Act [citation] is geared toward a present ability to pay support.

However, there are limits to that general rule. If a payor of child

support sacrifices $10,000 of income this year in exchange for

receiving $20,000 of income in future years, we should not allow

him to impose the burden of child support on the custodian based

on his current sacrifice and ignore his future benefit (which may not

be reachable for child support at the time it is received). The

Supreme Court of Illinois has recently promulgated Supreme Court

Rule 296(f) [citation], which permits suspended payments to

accrue. Based on this authority, we conclude the Coons rejection

of [temporary] abatement is no longer applicable to situations

which, by their very nature, are inherently temporary.

We take judicial notice that Macon is not one of the

counties which has petitioned the supreme court for authorization

to employ the full panoply of procedural and substantive provisions

of Rule 296. We believe, nevertheless, the existence of the rule,

which permits a court to temporarily reduce payments for a period

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 of six months, but requires that the abated amount continue to

accrue and be repaid at a later date, provides authority for any

court to do the same in appropriate circumstances irrespective of

whether the county is operating under the broader provisions of the

rule.” Horn, 272 Ill. App. 3d at 478-79, 650 N.E.2d at 1108.

Fink and Horn are the only appellate opinions interpreting subsection (n) of Rule 296.

Both are Fourth District opinions, however, and we are not bound to follow appellate decisions

outside our district. See American Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d

1017, 1034, 886 N.E.2d 1166, 1181 (2008). Therefore, upon our own review of Rule 296, we

believe that the trial court erred in relying upon subsection (f) when examining whether payments

accrued after it abated petitioner’s support obligation. Rule 296 was not in effect in Will County

either at the time the abatement order was entered or at the time the respondent filed his pro se

pleading seeking to collect child support arrearages.

The language of Rule 296(n) is clear and unambiguous – Rule 296 is only applicable “in

counties in which both the chief circuit judge and the clerk of the circuit court have agreed to

undertake the experimental use of the procedures contained herein, and have jointly sought the

Court’s permission to do so, by filing a petition with the Administrative Director.” 134 Ill. 2d R.

296(n). By putting these requirements in a section entitled “Effective Date,” we believe the

supreme court has clearly signaled an intent that the applicability of the new rule is conditional on

compliance with its requirements. None of these requirements has been met in the present case.

The Fourth District’s holdings in Fink and Horn simply ignore the express language of

Rule 296(n). Instead, the Fourth District has created its own judicial exception to the limiting

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language found in subsection (n). While we believe it would be equitable for us to also ignore this

language, we are required to strictly comply with the rules promulgated by our supreme court.

The court has stated:

“‘The rules of court we have promulgated are not aspirational.

They are not suggestions. They have the force of law, and the

presumption must be that they will be obeyed and enforced as

written.’” (Emphasis added.) Village of Lake Villa v. Stokovich,

211 Ill. 2d 106, 116, 810 N.E.2d 13, 20 (2004), quoting Bright v.

Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277 (1995).

Subsection (n) provides, in pertinent part, that “[t]he Supreme Court will authorize

experimental sites to operate pursuant to this rule.” 134 Ill. 2d R. 296(n). Because the court has

never revisited Rule 296 in the 19 years since its adoption, we must assume that it still only

intends for Rule 296 to be applicable in counties “in which both the chief circuit judge and the

clerk of the circuit court have agreed to undertake the experimental use of the procedures

contained herein, and have jointly sought the Court’s permission to do so, by filing a petition with

the Administrative Director.” 134 Ill. 2d R. 296(n). With that in mind, we respectfully suggest

that the time has come for our supreme court to examine the overall applicability of Rule 296.

The procedure allowing trial courts to temporarily reduce or totally abate support

payments subject to the understanding that those payments will continue to accrue and must be

paid at a later time serves the interest of both the custodial parent and the noncustodial parent.

On one hand, it provides the trial court flexibility to accommodate the noncustodial parent in

times of temporary layoff from employment or other instances where he/she is unable to meet

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their support obligations. On the other hand, it ensures that the custodial parent eventually

receives all the support provided for in the relevant child support order.

Absent Rule 296, noncustodial parents are presented with the inequitable opportunity to

escape completely from fulfilling their support obligations. See Coons, 93 Ill. App. 3d at 134,

416 N.E.2d at 792. We believe such a scenario violates the public policy of this state as codified

in the Illinois Parentage Act of 1984 (Act) (750 ILCS 45/1 et seq. (West 2006)). Section 1-1.1 of

the Act expressly provides that “Illinois recognizes the right of every child to the physical, mental,

emotional and monetary support of his or her parents under this Act.” 750 ILCS 45/1-1.1 (West

2006). Moreover, our supreme court has specifically recognized that Illinois has a strong interest

in preserving and promoting the welfare of children. People ex rel. Sheppard v. Money, 124 Ill.

2d 265, 277, 529 N.E.2d 542, 547 (1988). The court has noted that “[a] parent’s duty to support

his or her minor child is among the oldest principles of law.” Sheppard, 124 Ill. 2d at 269-70, 529

N.E.2d at 544. Unless expressly provided in a court order, “the obligation to support a child only

terminates upon the emancipation of the child.” Finely v. Finely, 81 Ill. 2d 317, 325, 410 N.E.2d

12, 16 (1980). Noncustodial parents should not be allowed the opportunity to escape from

paying support merely because they choose to remain unemployed. If anything, their obligation

should encourage them to obtain employment sooner rather than later.

In conclusion, we are required by the language of Rule 296(n) to find that the trial court

erred in relying upon Rule 296(f) to determine that petitioner owed respondent a child support

arrearage, with interest, in the amount of $59,299.42. We refrain from taking any position on

whether the doctrines of equitable estoppel or laches bar respondent’s claim that petitioner owed

past-due child support. Instead, we remand with instructions for the trial court to conduct a

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hearing in order to determine what effect, if any, the March 30, 1994, abatement order had upon

the support order entered October 20, 1992. This finding must be made absent any consideration

of Rule 296 due to the fact that Rule 296 was not in effect in Will County at the time the

abatement order was entered or at the time the respondent filed his pro se pleading seeking to

collect child support arrearages.

Moreover, the record must be developed in order to understand why the matter was

continued generally on December 21, 1994, and what the effect of that order was. As previously

noted, the trial court’s minutes on that day merely reflect that the matter was continued generally

on the motion of the State. The March 30, 1994, abatement order, however, specifically required

that petitioner maintain a job search diary and continued the matter for status, apparently to

monitor petitioner’s employment efforts. The record, however, fails to provide us with any

answer as to why no further status hearings were held after December 21, 1994, even though

petitioner did not obtain employment until March 2002. Moreover, we are extremely troubled by

the fact that petitioner simply decided to cease searching for employment because she wanted to

attend school. It appears she was required, by court order, to continue to search for employment

and her failure to do so might be contempt of the court’s order.

Petitioner also contends in this appeal that the trial court erred in ordering her to pay

respondent’s counsel the sum of $1,755. in fees and costs. Petitioner asserts the parties are not in

similar financial circumstances. Specifically, petitioner argues that the parties’ financial affidavits

reveal a substantial discrepancy of income and expenses. A trial court’s decision to award or

deny fees will be reversed only if the trial court abused its discretion. In re Marriage of

Schneider, 214 Ill. 2d 152, 174, 824 N.E.2d 177, 190 (2005).

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 Section 508 of the Illinois Marriage and Dissolution of Marriage Act allows for an award

of attorney fees where one party lacks the financial resources and the other party has the ability to

pay. 750 ILCS 5/508 (West 2006). The party seeking an award of attorney fees “must establish

his own inability to pay and the other spouse’s ability to do so.” (Emphasis added.) In re

Marriage of Puls, 268 Ill. App. 3d 882, 889, 645 N.E.2d 525, 530 (1994). “Financial inability

exists where requiring payment of fees would strip that party of his means of support or

undermine the party’s financial stability.” Puls, 268 Ill. App. 3d at 889, 645 N.E.2d at 530. In

addition, the trial court may consider a party’s misconduct when determining whether to award

attorney fees. In re Marriage of Hale, 278 Ill. App. 3d 53, 58, 662 N.E.2d 180, 184 (1996).

Here, petitioner reported monthly expenses of $3,841. This amount includes the monthly

$750 arrearage payment petitioner was obligated to pay respondent. Petitioner’s net monthly

income is $3,119. Petitioner testified that she satisfies 40% of her reported expenses and her

husband satisfies the remaining 60%. Respondent reported monthly expenses of $4,246.

Respondent’s net monthly income is $4,910. Reviewing the parties’ financial affidavits, we

believe respondent has failed to show an inability to pay his own attorney fees. Respondent’s

monthly income exceeds his monthly expenses by $664. While petitioner’s monthly income also

exceeds her monthly expenses, incorporating the fact that she only pays 40% of her expenses does

not alone justify an award of attorney fees. Respondent was required to prove both his inability to

pay and petitioner’s ability to do so. See Puls, 268 Ill. App. 3d at 889, 645 N.E.2d at 530.

Respondent has not met this burden. Thus, we find that the trial court’s award of attorney fees

constitutes an abuse of discretion.

In coming to this conclusion, we reject respondent’s reliance upon the fact that the origin

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of this action arose from petitioner’s failure to pay child support. Specifically, respondent argues

that petitioner’s failure to pay child support constitutes misconduct and cites Hale for the

proposition that the trial court did not abuse its discretion because misconduct of the parties can

be considered when determining whether to award attorney fees. While petitioner’s failure to

support her children reflects poorly upon her personal character, we do not believe that this

questionable judgment is equivalent to the misconduct discussed in Hale. Hale involved a

spouse’s fraudulent acquisition of marital property. See Hale, 278 Ill. App. 3d at 57, 662 N.E.2d

at 183. Here, respondent does not allege that petitioner engaged in any fraudulent conduct.

Thus, we find Hale distinguishable on its facts.

For the foregoing reasons, we reverse that portion of the trial court’s order requiring

petitioner to pay respondent child support arrearages in the amount of $59,299.42. We also

reverse that portion of the trial court’s order requiring petitioner to pay respondent’s counsel the

sum of $1,755 in fees and costs. The matter is remanded for further proceedings consistent with

this opinion.

O’BRIEN, P.J. and WRIGHT, J., concur.

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