dissenting:
Because I conclude that the Michigan court’s order reducing Robert Gifford’s child-support payments should be given full faith and credit by the Illinois courts, I respectfully dissent from the majority’s decision. In my view, the majority’s determination that the Michigan URESA1 order is not entitled to full faith and credit misconstrues pertinent case law interpreting URESA and relies upon facts not shown in the record.
Inasmuch as the majority has not addressed Janice’s argument that the antinullification provision of URESA (9A U.L.A. 747, 794 (1958) (URESA section 30); see also 9A U.L.A. 647, 734 (1968) (URESA section 31)) affords a basis for affirmance, this dissent also will not consider that contention.
Analysis
The majority reasons that the Michigan support order is not entitled to full faith and credit because “the Michigan court could not have accurately ascertained what the financial situation of [Janice Gifford] was, at the time of the [Michigan] hearing, without her being present to testify as to that condition.” (152 Ill. App. 3d 422, 431.) The majority further determines that since Janice “was not present at the Michigan hearing *** the Michigan court did not have in personam jurisdiction over [Janice] for the purpose of reducing a support order previously issued in her favor by an Illinois court.” 152 Ill. App. 3d 422, 431.
In other words, the majority holds that an obligee spouse represented by counsel in the responding-State proceedings can avoid the in personam jurisdiction of the responding State simply by refusing or failing to be physically present in the responding State when the court of that forum holds a hearing with respect to the obligor spouse’s prospective child-support obligation. On this basis alone, the majority concludes that the Michigan court’s URESA order reducing Robert’s prospective support obligation is not entitled to full faith and credit.
In the cases upon which the majority relies to conclude that the Michigan URESA court here lacked jurisdiction over Janice (Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957, appeal denied (1981), 85 Ill. 2d 582; Ibach v. Ibach (1979), 123 Ariz. 507, 600 P.2d 1370), the courts simply noted in passing that the obligee spouse participated in the responding court’s proceedings. Although it has been recognized that full faith and credit will not be accorded to the order of a sister State where the party against whom enforcement is sought had no meaningful notice or opportunity to appear (see, e.g., Sevinson v. Sevinson (Del. Sup. 1978), 396 A.2d 178; Overman v. Overman (Mo. App. 1974), 514 S.W.2d 625; see generally Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690; Milliken v. Meyer (1940), 311 U.S. 457, 85 L. Ed. 278, 61 S. Ct. 339; Reitmayer, Modification of Divorce Support Decrees Under RURESA: A Procedural and Substantive Quagmire, 20 New England L. Rev. 425 (1984-85)), neither Sullivan nor Ibach states or implies the opposite rule, which the majority now creates, that an obligee spouse’s mere failure to participate in the responding court’s proceeding would deprive that court of in personam jurisdiction over the obligee spouse. Nor do those cases express or infer that the obligee spouse’s failure to participate, in and of itself, would be sufficient to preclude giving full faith and credit to the responding States’ orders. As a result, the majority relies upon case law that does not stand for or intend the legal proposition which the majority now enunciates.
In fact, analysis of Ibach and Sullivan demonstrates that they support Robert’s position in the case at bar that the Michigan court’s URESA reduction order is entitled to full faith and credit.
In Ibach v. Ibach (1979), 123 Ariz. 507, 600 P.2d 1370, for example, the obligee spouse claimed, as does Janice in the instant appeal, that the responding State “lacked jurisdiction over her” for purposes of reducing the obligor spouse’s prospective child support. (123 Ariz. 507, 510, 600 P.2d 1370, 1373.) The obligee spouse relied upon the section of URESA which states, “Participation in any proceeding under this act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding.” (9A U.L.A. 747, 794 (1958) (URESA section 31); see also 9A U.L.A. 647, 736 (1968) (URESA section 32).) The Ibach court held that this section did not deprive the responding court of jurisdiction over the obligee spouse to reduce the obligor spouse’s prospective child-support obligation. It reasoned that the provision “ ‘precludes counterclaims based merely on the theory that the plaintiff, by initiating the procedure ***, has submitted herself to the jurisdiction of the court of the responding state for other purposes[ ]’ [(Thibadeau v. Thibadeau (1974), 133 Ga. App. 154, 156, 210 S.E.2d 340, 343)] [such that] *** the respondent cannot counterclaim for divorce[ ] [(Blois v. Blois (Fla. App. 1962), 138 So. 2d 373)] or raise issues concerning ‘child custody or visitation privileges or other matters commonly determined in domestic relation cases’ [(Pifer v. Pifer (1976), 31 N.C. App. 486, 489, 229 S.E.2d 700,703)].” (Ibach v. Ibach (1979), 123 Ariz. 507, 510, 600 P.2d 1370, 1373.) The court concluded that the section did not “prohibit a court from deciding whether a plaintiff is entitled to support, and, if so, in what amount.” (123 Ariz. 507, 510, 600 P.2d 1370, 1373.) On this basis, the court rejected the obligee spouse’s contention that the responding court lacked personal jurisdiction over her when it reduced her husband’s prospective support obligations.
Thus, Ibach demonstrates that the Michigan URESA court did not “lack personal jurisdiction” over Janice for purposes of reduction in Robert’s prospective support obligation. The majority’s attempt to distinguish Ibach on the theory that the wife appeared at the proceeding in Ibach while Janice did not testify at the Michigan proceeding in the instant cause is without merit. The relevant inquiry is whether Janice was provided notice and an opportunity to be heard, not whether she simply neglected to avail herself of such an opportunity. There is nothing in the record here to indicate, or even imply, that Janice was not given notice that the Michigan court would consider whether Robert’s support obligations should be reduced or that Janice was not provided an opportunity to testify at the Michigan court’s hearing.
Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957, appeal denied (1981), 85 Ill. 2d 582, also clearly demonstrates that the Michigan URESA reduction order at issue here should be given full faith and credit in Illinois. In Sullivan, the wife filed an URESA petition in Illinois to recover past due support which her husband owed under an Illinois judgment. Upon certification and forwarding of the action from Illinois to the county wherein her husband resided in Ohio, the Ohio court found that the husband owed a certain amount in support arrearages under the Illinois order. The Ohio court also concluded that the husband’s prospective support obligations should be reduced, and .entered an order fixing the husband’s support duty at a sum lower than that set by the Illinois judgment.
The wife then filed an action in Illinois requesting that the court find the husband in contempt for failing to comply with the Illinois order. The Illinois trial court accorded full faith and credit to the Ohio URESA order reducing the amount of the husband’s prospective support. The appellate court affirmed the trial court’s ruling and gave recognition to the authority of the Ohio court to reduce the husband’s prospective support obligation. After reciting the well-established principles of according full faith and credit to sister State judgments, the court stated, “Thus, although URESA may authorize a responding court to modify the initiating State’s decree, the second forum must nonetheless give full faith and credit to the first judgment to the extent that it is nonmodifiable.” (Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 932, 424 N.E.2d 957, 960.) Based upon this analysis and the recognized modifiability of prospective child support upon a showing of changed circumstances, the Sullivan court determined that the Ohio decree was entitled to full faith and credit. The court in Sullivan noted that “[a]ny objections [the wife] had concerning the Ohio modification should have been directly appealed in Ohio and not collaterally attacked as she attempts to do here.” (98 Ill. App. 3d 928, 933, 424 N.E.2d 957, 960.) The court in Sullivan also deemed it significant that the Ohio order had not rendered void the Illinois order with respect to any child support past due thereunder at the time the Ohio order was entered.
In the instant case, as in Sullivan, only prospective support payments were modified by the Michigan court. Sullivan is not inapposite to the case at bar, since the record here shows that Janice gave no indication that she did not receive notice of the proceeding or that she was not given an opportunity to appear in the Michigan proceedings.
Parenthetically, I note that the majority’s ruling is founded on erroneous characterizations of the record in the case at bar. For example, there is nothing in the record to support the majority’s statement that Janice was not adequately represented by the prosecuting attorney for Berrien County, Michigan, or to warrant the majority’s view that “[i]t is evident that that attorney had no personal knowledge of [Janice’s] financial condition at the time of the hearing.”2 (152 Ill. App. 3d 422, 432.) Nor is there anything in the record to suggest that the Michigan court did not properly apply Illinois law when it decided to reduce Robert’s prospective child-support obligations. Indeed, both Illinois and Michigan law recognize that a voluntary, good faith change or loss of employment is ground for reduction in prospective child support. See, e.g., In re Marriage of Kowski (1984), 123 Ill. App. 3d 811, 463 N.E.2d 840; Rutledge v. Rutledge (1980), 96 Mich. App. 621, 293 N.W.2d 651.
The majority also observes that “the record on appeal does not contain anything which would indicate that [Robert’s] relinquishment of his job in Illinois and his subsequent move to Michigan was anything but voluntary. *** [I]f [Robert] did not agree with the support order issued by the Illinois court he could have filed a direct appeal in this jurisdiction at that time. This he chose not to do. Consequently, we do not feel that any principle of equity will be violated by requiring [Robert] to return to Illinois if he wants to attempt a modification of the support order previously entered by the circuit court on the basis that his circumstances have changed.” (152 Ill. App. 3d 422, 432.) However, there is no indication in the record that Robert moved to Michigan and did not find gainful employment there because he wanted to avoid his Illinois support obligations. On the contrary, the parties agree that, as his salary increased, Robert voluntarily increased his support payments beyond the amount required in the Michigan order.
The majority concludes that although she was represented by counsel in the Michigan proceedings, Janice’s failure to appear is sufficient to deprive the Michigan URESA court of personal jurisdiction over her, deny full faith and credit to the Michigan URESA order, and characterize Robert as the errant husband who fled Illinois simply to avoid his support obligations. In my opinion, this conclusion is erroneous in that it is based upon an incorrect application of the law and an incorrect analysis of the facts.
Conclusion
It is significant to note that the majority of jurisdictions which have adopted URESA now recognize that a responding State may not only enforce the originating State’s support order, but may also modify that support order by a prospective increase or reduction in support obligations. (See, e.g., Koon v. Boulder County Department, of Social Services (Fla. 1986), 494 So. 2d 1126 (and cases cited therein); see also Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957; cf. Kulko v. Superior Court of California (1978), 436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701 (approved, in dicta, utilization of URESA to facilitate claim for additional support, as well as to collect owed support payments).) To refuse to give full faith and credit to the Michigan support order at issue here, on no more than the mere ground that Janice failed to testify at the Michigan court’s hearing, will serve only to undermine these precedents and to eviscerate URESA’s goal of “providing] a simple two-state procedure by which the obligor’s duty to support an obligee residing in another state may be enforced expeditiously [for example, through an increase or reduction in the amount of prospective support] and with a minimum of expense to the obligee. [Citation.]” (Emphasis in original.) Koon v. Boulder County Department of Social Services (Fla. 1986), 494 So. 2d 1126, 1129; see also Light v. Light (1958), 12 Ill. 2d 502, 510, 147 N.E.2d 34.
In my opinion, the majority decision establishes a harsh and inequitable rule. The court should not award an unjustifiable windfall to an obligee spouse who first sought out and received the benefits of the responding court’s protection in order to recover past due support in an URESA action but failed to appear at the responding court’s URESA hearing to reduce the obligor spouse’s prospective support obligation. Nor should the court impose a severe hardship and unwarranted penalty upon an obligee spouse who, in good-faith reliance upon the responding court’s URESA reduction order, pays the amount of support determined by a court which conducted a hearing on his financial circumstances and applied Illinois law in determining if a reduction in support was appropriate.
For these reasons, I respectfully dissent.
Uniform Reciprocal Enforcement of Support Act (URESA) (9A U.L.A. 747 et seq. (1958)), revised by the Revised Uniform Reciprocal Enforcement of Support Act (9A U.L.A. 647 et seq. (1968 & Supp. 1985)).
In the case at bar, the trial court ordered that Robert’s support arrearages of almost $20,000 be paid directly to the Illinois Department of Public Aid. Consequently, it appears that Janice was receiving public aid from the State of Illinois while her URESA action was pending before and disposed of by the Michigan court.