dissenting:
The majority refers to the order entered herein as one for reimbursement. I agree with this classification although the majority subsequently intimates that it was a support order.
The majority accepts the proposition “that when a divorce decree provides for the custody of a child but is silent as to the question of child support, a mother may maintain an action against her former husband for moneys expended by her after the decree to support the child.” To buttress its position that the courts possess the inherent authority to enter an order requiring reimbursement payments for child support extending over a 13-year period the majority primarily relies upon two decisions of this court. While the majority correctly summarizes the pertinent facts of Plaster v. Plaster (1868), 47 Ill. 290, it is interesting to note that the Plaster decision resulted in two subsequent appeals to this court. Upon remand from the initial Plaster decision the trial court ordered support retroactive to the date of the divorce decree, a period of approximately 11 years. On appeal from this order this court stated that “the claim for her expenditures in this regard [child support] should be confined to the five years next before the commencement of this suit. The circuit court went beyond this, even back to the time of the divorce. This was error, and for the error the decree must be reversed and the cause remanded.” (Plaster v. Plaster (1870), 53 Ill. 445, 447.) The litigation culminated in this court’s affirmance of a lesser award predicated upon this five-year period. Plaster v. Plaster (1873), 67 Ill. 93.
Kelley v. Kelley (1925), 317 Ill. 104, presents a situation which is factually dissimilar from the present case. There a divorce was obtained after service by publication. Several months thereafter the circuit court secured in personam jurisdiction over the husband. The court held that an order for child support could be entered subsequent to the divorce decree. However, the child to whom this support decree would confer a benefit was an infant at the commencement of the action.
If relief is to be granted to plaintiff in this cause, the majority would be required to restrict the order for reimbursement to a period not to exceed the five-year interval immediately preceding the commencement of the action. Under the circumstances of this case reimbursement payments should be granted for only three years because the child was emancipated for two years.
I must further disagree with the majority’s construction of .section 18 of our Divorce Act. It interprets this provision as conferring authority upon a court, which obtains in personam jurisdiction of the defendant, to enter a retrospective order relating to child support. This is achieved without consideration of any time limitation. Section 18 must be considered in its entirety. It provides:
“When a divorce is decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just and, in all cases, including default cases, the court shall make inquiry with respect to the children of the parties, if any, and shall make such order touching the care, custody, support and education of the minor children of the parties or any of them, as shall be deemed proper and for the benefit of the children. The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable.
If alimony, child support or both, is awarded to persons who are recipients of aid under ‘The Illinois Public Aid Code’, approved April 11, 1967, as amended, the court shall direct the husband or wife, as the case may be, to make the payments to (1) the Illinois Department of Public Aid if the persons are recipients under Articles III, IV, or V of the Code, or (2) the local governmental unit responsible for their support if they are recipients under Articles VI or VII of the Code. The order shall permit the Illinois Department of Public Aid or the local governmental unit, as the case may be, to direct that subsequent payments he made directly to the former spouse, the children, or both, or to some person or agency in their behalf, upon removal of the former spouse or children from the public aid rolls; and upon such direction and removal of the recipients from the public aid rolls, the Illinois Department or local governmental unit, as the case requires, shall give written notice of such action to the court.
Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support it may at any time after the entry of a decree for divorce, upor obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just, but no such order subsequent to the decree may be made in any case in which the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony or where the court by its decree has denied alimony.
In any order entered pursuant to this Section, the court may order the defendant to give reasonable security for such alimony and maintenance or such money or property settlement, or may enforce the payment of such alimony and maintenance or such money or property settlement in any other manner consistent with the rules and practices of the court, where a party willfully refuses to comply with the court’s order to pay alimony and maintenance or to perform such money or property settlement, or has shown himself unworthy of trust. No alimony or separate maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the court’s order. A party shall not be entitled to alimony and maintenance after remarriage; but, regardless of remarriage by such party or death of either party, such party shall be entitled to receive the unpaid installments of any settlement in lieu of alimony ordered to be paid or conveyed in the decree.
The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance, and the care, education, custody and support of the children, as shall appear reasonable and proper. However, after the children have attained majority age, the court has jurisdiction to order payments for their support for educational purposes only.” Ill. Rev. Stat. 1971, ch. 40, par. 19.
Section 18 confers authority upon a court to enter an order for child support based, in part, upon the circumstances of the parties. The majority’s interpretation of section 18 might be construed to permit a petition by the father for reimbursement of a portion of his prior support payments if it could be determined that they were excessive.
Moreover, to accept the premise that section 18 “does not restrict the court as to when it may order payment for child support” necessarily connotes that said order may be entered, in effect, at any time even if the child has been emancipated for a lengthy period of time. Section 18 provides carefully delineated authority with relation to child-support orders and their subsequent modification. While I agree that its language is not “restrictive,” I find that the plain reading of this provision cannot support the unrestricted interpretation placed upon it by the majority. This is borne out by consideration of section 24 of the Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1971, ch. 68, par. 124), which specifically provides for reimbursement of support. It is therefore clear that the legislature was aware of the distinction between reimbursement orders and those orders pertaining to present or future support payments, yet section 18 is silent as to the former.
In effect the majority has permitted reimbursement to the parent of a son, who was an adult at the time this action was commenced. While undoubtedly plaintiff assumed the obligation of support for many years, the relief she may be entitled to must be based either upon pertinent statutes or case law. Section 18 does not provide the basis for the relief she seeks and under the second Plaster decision she would be entitled to an amount based upon the five-year period preceding commencement of the suit.
GOLDENHERSH and RYAN, JJ., join in this dissent.