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Gill v. Gill

OPINION FILED NOVEMBER 30, 1973.

MARILYN GILL, APPELLEE,

v.

ROBERT GILL, APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Sidney A. Jones, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 29, 1974.

The question presented on this appeal is whether it was proper for the trial court to direct the father of a child to reimburse the mother for moneys expended after their divorce for their child's support during his infancy.

The circuit court of Cook County entered such an order in favor of the plaintiff, Marilyn Gill, against her former husband, Robert Gill, and the appellate court affirmed (8 Ill. App.3d 625). We granted the defendant's petition for leave to appeal.

Marilyn and Robert Gill were married on April 10, 1948. One child, Richard Michael, was born of the marriage. On June 28, 1956, after a suit for divorce was brought by Marilyn Gill and Robert Gill was served by publication, a decree of divorce was entered in favor of the plaintiff on grounds of physical cruelty and desertion. The decree awarded custody of Richard, who was then five years old, to his mother and reserved the question of child support, alimony and attorney's fees.

On May 27, 1971, the plaintiff obtained personal service of the original complaint and summons in the divorce action upon the defendant and served him on June 3 with a copy of her petition to be reimbursed for expenditures for the support of their child from June 28, 1956, through June 1971.

Mrs. Gill testified at the hearing held in July 1971 that she had provided the sole support for their son from prior to June 28, 1956, to June 28, 1969, when he graduated from high school and became employed. She said that it had cost approximately $25 per week to provide his support during the 13-year period. She testified that she did not have any knowledge of her husband's whereabouts from the time of his desertion of her until he communicated with their son in May of 1971 and apparently told the son where he was living.

At the conclusion of the hearing the trial court granted the petition and ordered the defendant to pay Mrs. Gill $13,500 as reimbursement for moneys spent for the child's support and $500 in legal fees. The amount of reimbursement was determined on the basis of allowing the plaintiff $20 per week for the 13-year period, commencing on June 28, 1956, and ending on June 28, 1969.

There is no substance to the defendant's argument on appeal that the order to reimburse was a nunc pro tunc order and therefore invalid. Seemingly he claims that the order relates back to the time the divorce decree was entered and because, he says, he was not personally served at that time the court had no jurisdiction over him and could not enter the order to reimburse.

The function of a nunc pro tunc order is "to supply some omission in the record of an order which was really made but omitted from the record." (People v. Rosenwald, 266 Ill. 548, 554.) It is clear that in the original proceeding there was no order "really made" relative to the obligation to provide child support. That question was expressly reserved in the divorce decree. The order to reimburse was not entered to correct an order made but omitted from the original decree.

The defendant next contends that the trial court's order directing him to pay, retroactively, support for the child is void. He argues that under section 18 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 19) a court has authority only to award support prospectively from the date it acquires jurisdiction to the point in time when the child becomes emancipated. Putting the same contention in different form, he says that the court had no authority to order support for any period of time prior to the claimant's obtaining in personam jurisdiction over the defendant.

The language of section 18 clearly does not favor the interpretation the defendant would give it. The section states: "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, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for the * * * support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just * * *."

The section does not restrict the court as to when it may order payment for child support. "[The] court * * * may at any time after the entry of a divorce decree, upon obtaining jurisdiction * * * make such order for * * * support." Neither is the balance of the section's language restrictive; it confers a completely broad discretion and authority on the court as to the character of the support order it can enter. The court is empowered by it to "make such order for the * * * support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just * * *." We consider that the statute's language clearly conferred on the trial court the authority to enter the order. The interpretation sought by the defendant ...


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