dissenting:
I respectfully dissent and would affirm the decision of the trial court. The majority today abandons a long-standing and well-considered ruling of our supreme court. See Finley, 81 Ill. 2d at 332, 410 N.E.2d at 19 (in dissolution of marriage cases, orders for future periodic payments do not draw interest unless the trial court so exercises its discretion). The majority concludes its action is required by a 1987 amendment to section 12 — 109, that “[e] very judgment arising by operation of law from a child support order shall bear interest as provided in [sjection 2 — 1303.” 735 ILCS 5/12 — 109 (West 1998). Section 2 — 1303, however, was the section considered in Finley.
There is a difference between money judgments entered in civil cases and orders for future periodic payments entered in dissolution of marriage cases. The dissolution judgment might not even contain a definite amount but may simply order the noncustodian to pay a percentage of his income. In re Marriage of Singleteary, 293 Ill. App. 3d 25, 33, 687 N.E.2d 1080, 1086 (1997). As in the present case, the custodian may return to court many years later, complaining that the noncustodian at some point has failed to pay some child support. The trial court will hear the evidence, determine the amount unpaid, and enter a judgment for that amount. Certainly from that point in time the custodian will be entitled to interest on the judgment. But was the custodian entitled to interest from the moment the custodian failed to comply with the order setting support? Again, Finley says that such an award of interest in a dissolution of marriage case is not mandatory but lies within the discretion of the trial court.
For many years there has been a duplication between section 12— 109, which had its origin in the statute dealing with judgments (Ill. Rev. Stat. 1977, ch. 77, par. 7), and section 2 — 1303, which had its origin in the statute dealing with interest (Ill. Rev. Stat. 1977, ch. 74, par. 3). In 1980, the year Finley was decided, the predecessor of section 12 — 109 provided:
“Every judgment shall bear interest thereon, from the date of the recovery of the judgment until the same is paid, at the rate of 8% per annum.” Ill. Rev. Stat. 1979, ch. 77, par. 7.
At that time, the predecessor of section 2 — 1303 provided:
“Judgments recovered before any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***.” Ill. Rev. Stat. 1979, ch. 74, par. 3.
Two separate statutes accordingly provided for interest on judgments. Even though Finley did not cite the parallel language contained in the predecessor of section 12 — 109, the holding of Finley must be read as applying to that language.
In 1984, section 12 — 109 of the Code was amended to eliminate the duplication and to simply refer to section 2 — 1303 without setting out any substantive provisions. Pub. Act 83 — 1398, § 5, eff. September 12, 1984 (1984 Ill. Laws 2747, 2748). After the 1984 amendment section 12 — 109 read, “[e]very judgment shall bear interest thereon as provided in [sjection 2 — 1303.” Ill. Rev. Stat. 1985, ch. 110, par. 12— 109. The language of section 12 — 209 on which the majority relies was accordingly in existence prior to 1987, and it was clear at that time that the language was intended to avoid duplication, not to change the Finley rule on discretionary interest.
In 1987, in connection with the amendments to section 505 of the Dissolution Act, section 12 — 109 was amended to address judgments “arising by operation of law from child support orders.” Pub. Act 85 — 2, § 6, eff. May 1, 1987 (1987 Ill. Laws at 14). The amended language provides, “[e] very judgment arising by operation of law from a child support order shall bear interest as provided in [sjection 2 — 1303 commencing 30 days from the effective date of each such judgment.” 735 ILCS 5/12 — 109 (West 1998). There are two basic provisions here: (1) child support orders shall bear interest as provided in section 2 — 1303, and (2) there is a grace period of 30 days before interest begins to run. Section 12 — 109 does not say anything about the discretion of the trial court, only that such orders shall bear interest as provided in section 2 — 1303. Under section 2 — 1303, basically unchanged since it was addressed in Finley, interest is discretionary.
The majority attempts to distinguish Steinberg with the argument that “the Steinberg court did not address section 12 — 109 of the Code in reaching its conclusion.” 324 Ill. App. 3d at 210. The Steinberg court did discuss the 1987 amendment to section 505(d), however, including an extensive discussion of the legislative history of that amendment. Amended section 12 — 109 was a part of that same amendment, and it seems clear that the Steinberg court was aware of the 1987 amendment to section 12 — 109. In any event we must consider whether the language of section 12 — 109, i.e., that child support judgments “shall bear interest as provided in [sjection 2 — 1303,” adds anything to the language of sections 2 — 1303 of the Code and 505(d) of the Dissolution Act, which were considered by the Steinberg court. Steinberg rejected the argument that the broad language in section 2 — 1303 of the Code (dealing with interest on judgments) and the broad language in section 505(d) of the Dissolution Act (dealing with child support judgments) changed the rule that interest on child support judgments was discretionary. The language in section 12 — 109, duplicative of the language in section 2 — 1303, is even less persuasive than the language of the other sections, and the failure to cite section 12 — 109 in Steinberg does not provide support for the majority’s decision here.
The majority complains that Kaufman, although a maintenance case, addressed section 505(d) of the Dissolution Act, which expressly addresses child support. 324 Ill. App. 3d at 209-10. The majority then suggests that because Kaufman was a maintenance case, it did not consider section 12 — 109, which is a child support provision. 324 Ill. App. 3d at 209. The fact of the matter is that both child support and maintenance are “periodic payments ordered by the court” and have been discussed interchangeably in the cases. Finley was a child support case, but it cited alimony cases. Finley, 81 Ill. 2d at 331-32, 410 N.E.2d at 19. The Finley rule applies not just to child support or to maintenance but to every allowance of interest in a divorce proceeding. Finley, 81 Ill. 2d at 331-32, 410 N.E.2d at 19. As the majority points out, both the language it relies upon from section 12 — 109 of the Code, and a portion of the language of section 505(d) of the Dissolution Act discussed in Kaufman (then section 505(c)), were contained in the same public act. Pub. Act 85 — 2, §§ 6, 2, eff. May 1, 1987 (1987 Ill. Laws at 14, 6-7). That public act was not added with the intent of changing the way interest is awarded in Illinois dissolution judgments. The public act was added to comply with federal law and prevent the loss of large sums of federal funds and to prevent retroactive reduction of child support, especially by courts in other states. Kaufman, 299 Ill. App. 3d at 512-13, 701 N.E.2d at 189. The legislative intent in amending section 12 — 109 of the Code was to add a 30-day grace period, not to change the rule that the award of interest on past-due child support is discretionary. If the legislature had intended to change such a long-standing and sensible rule, it would have done so explicitly.
The wisdom of a rule that places the award of interest within the discretion of the trial court is illustrated by this case. Bonnie chose to bring this action for unpaid child support in 1999, when the child was 23 years old. The child will not receive any advantage from this child support. Bonnie sought $23,200 in unpaid child support; the trial court awarded $15,100, an indication there was some uncertainty as to amount. Orders for future periodic payments are not as definite as money judgments. Another example of this uncertainty is found in the cases where the noncustodian takes over the custody of the child. Even if the child support order is not revoked, the former custodian will be estopped to enforce it. Johnston v. Johnston, 196 Ill. App. 3d 101, 104-05, 553 N.E.2d 93, 96 (1990); In re Marriage ofDuerr, 250 Ill. App. 3d 232, 235-37, 621 N.E.2d 120, 123-24 (1993). Computing interest on a money judgment may not require much more than a multiplication of the number of days unpaid by the interest rate; computing interest on a child support order is a much more complicated process. Interest on child support orders should be discretionary with the trial court.