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Kelleher v. Kelleher

JULY 24, 1974.

DONNA KATHLEEN KELLEHER, PLAINTIFF,

v.

PATRICK KELLEHER, DEFENDANT-APPELLEE — (PATRICK JOSEPH KELLEHER, BY HIS GRANDMOTHER AS HIS NEXT FRIEND, APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT C. BUCKLEY, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This action was brought on behalf of Patrick Joseph Kelleher, a minor child, by his grandmother as next friend, to compel the father, Patrick Kelleher, to pay past-due installments of child support. A petition for rule to show cause was filed on February 6, 1973, and the father filed a written objection to the petition. After a hearing before the Honorable Robert C. Buckley, the petition was dismissed.

The issues presented for review in this appeal are:

1) Whether the court granting the divorce has jurisdiction, upon presentation of a petition by the minor child, to enforce the child-support provision of the divorce decree.

2) Whether the trial court fulfilled its obligation in refusing to transfer the cause.

3) Whether past-due installments of child support are a vested obligation, and whether such obligation of the father to support his minor child is terminated by reason of the death of the person to whom custody of the minor child had been granted by the divorce decree.

The petitioner, Patrick Joseph Kelleher, is the minor child of the defendant and Donna Kathleen Kelleher. On October 5, 1956, the petitioner's parents were divorced. The divorce decree placed the petitioner, then age 6 months, in the custody of his mother and ordered the father to pay $20 each week for support of the child. Donna Kathleen Kelleher died in 1959. Since that time, the child has been residing with his maternal grandmother.

On August 28, 1972, the grandmother filed a petition for money judgment, seeking reimbursement of the funds which she had expended on behalf of the minor. The petition was denied on November 13, 1972. No appeal was taken from that order.

On February 6, 1973, the petitioner filed, through his grandmother as next friend, a petition for rule to show cause. The petition alleged that the father made no child-support payments whatsoever, in violation of the terms of the child-support provision of the divorce decree.

The father's objections to the petition were as follows: (1) An order was entered on November 13, 1972, denying the request for the minor child to be named as a party plaintiff herein; (2) Said minor child is not a party to this cause; (3) Dorothy Williams has neither been named in this court as said child's next friend nor has she been given leave to file or appear as said child's next friend; (4) No basis is set forth in said petition for this court to have or take jurisdiction; and (5) If requested by this or any other court, he has legal and equitable defenses to any claim in connection with the instant subject matter against him and can set forth said defenses in an answer, if so requested.

On April 5, 1973, a hearing was held on the petition, and it was denied. A petition for rehearing was timely filed, and it was denied on June 12, 1973. Petitioner now brings this appeal.

• 1 The appellee has not filed any briefs in accordance with Supreme Court Rule 341 (Ill. Rev. Stat. 1971, ch. 110A, § 341). This court may, in its sound discretion, determine the merits of the case or it may reverse because of the failure of the appellee to comply with the Supreme Court Rule. (Shinn v. County Board of School Trustees (1970), 130 Ill. App.2d 908, 266 N.E.2d 123; People v. Spinelli (1967), 83 Ill. App.2d 391, 227 N.E.2d 779; Timmerman v. Wilson (1966), 74 Ill. App.2d 224, 219 N.E.2d 767.) Because of the importance of the issues raised, we have decided to consider the merits of the case.

Petitioner correctly asserts that the court granting the divorce has jurisdiction to enforce the child-support provision of the decree. It is fully recognized that the proper forum in which to apply for the enforcement of the divorce decree is the court which entered it. Stewart v. Stewart (1954), 1 Ill. App.2d 283, 117 N.E.2d 579.

The Divorce Act (Ill. Rev. Stat. 1971, ch. 40, § 19) specifically authorizes enforcement of divorce decrees and ...


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