Rodgers v. Rodgers

JUSTICE WELCH,

dissenting:

The issue in this case is not whether a petition is a prerequisite to an order enforcing or modifying child support payments. It is obvious that it is (Ill. Rev. Stat. 1981, ch. 40, par. 511(a)), and equally obvious that the plaintiff in this case did so. The question presented is instead whether, once such a petition is filed, an award for child support accrued before the date of the petition may be granted under the general procedures outlined in the Illinois Marriage and Dissolution of Marriage Act and under the specific orders entered by the trial court in this case.

It is, of course, routine for a party to whom child support is owed to petition to receive past due child support, and the courts have occasionally granted the petitioner judgment for arrearages accrued long before the filing of the petition. (See Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12 (arrearages dated back to 11 years before the petition was filed).) The only significance of the date of filing the petition is that a court may order retroactive modifications of support payments only to that date. (In re Marriage of Matzen (1979), 69 Ill. App. 3d 69, 387 N.E.2d 14; Dixon v. Dixon (1977), 45 Ill. App. 3d 934, 360 N.E.2d 486.) The fact that the plaintiff was required to file a petition to institute an action for enforcement or modification or child support, then, does not lead to the conclusion that the jurisdiction invoked by that petition was limited to a grant of support payments accrued after that date. To imply so confuses the issue of the scope of the court’s statutory jurisdiction with the issue of the nature of the appropriate remedy under such a petition.

It is proper in Illinois for a court to order support payments to be partially or completely suspended during a period in which the party required to pay support is unable to do so. (Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161 (abstract).) Such an order is impermissible if the date selected by the court for the resumption of payments is arbitrary and unrelated to the party’s ability to pay. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.) In Martinec, the court’s order provided that the $140 monthly support obligation of the father, who returned to school, would be reduced to $60, while the additional obligation of $80 per month would continue to accrue during that time. When the father completed or terminated his education and became available for full-time employment, the court would determine the extent of the obligation which had accrued to that point.

Martinec did not address the precise question presented here, namely, whether the father’s return to work or the mother’s filing of a petition triggered the resumption of support payments at earlier levels. Nonetheless, the approval of the mechanism used by the trial court in Martinec for the temporary reduction of support shows that such a reduction here, being geared to the defendant’s return to work and not to an arbitrary future date, was a permissible order. That order provided, in part:

“that payments are hereby temporarily suspended until the defendant returns to work. Defendant to notify the Plaintiff’s attorney through his attorney and the court [sic] of his return to work. Upon such notice, a hearing to be held to set future payments based on the circumstances of the parties at that time.”

While, in this order, the court certainly contemplated that a hearing would be held after the defendant returned to work, nothing in that order makes either a hearing or the filing of a petition a condition precedent to the resumption of earlier determined support payments. In fact, the order specifically stated that payments were to be “temporarily suspended until the defendant returns to work.” At that point, the defendant’s support obligations resumed. The trial court so interpreted the wording of this order, and it should be remembered that in matters pertaining to the enforcement and modification of child support, the decision of the trial court should not be disturbed absent an abuse of discretion. (In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 426 N.E.2d 246.) In addition to departing from this standard of review, the majority also renders the phrase in the original order “suspended until the defendant returns to work” a nullity.

Consequently, it must be seen that nothing under the Illinois Marriage and Dissolution of Marriage Act prohibits a trial court from entering a judgment for support arrearages accrued before the filing of a petition for enforcement, nor does the Act proscribe the temporary reduction or suspension of support payments until the party obliged to pay is again able to do so. I agree with the trial court that the proper reading of the suspension order is to require the automatic resumption of the defendant’s support obligations upon his return to work, instead of continuing to suspend them until a petition is filed or a hearing is held, and I therefore disagree with the majority’s conclusion to the contrary. Also, even if I accepted that reasoning, it would not justify vacating the entire order pertaining to child support, and I believe that the majority has given no reason to vacate that portion of the order granting child support in the amount of $40 per week from October 11,1981, the date of filing of the petition.

For these reasons, I must respectfully dissent from the decision of the majority.