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Super v. Armstrong

OPINION FILED MAY 5, 1980.

ANNA SUPER, F/K/A ANNA ARMSTRONG, PLAINTIFF-APPELLANT,

v.

DONALD ARMSTRONG, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. JOHN D. ZWANZIG, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The parties to this appeal were divorced on September 10, 1971, pursuant to a decree entered under the provisions of the then existing divorce act (Ill. Rev. Stat. 1971, ch. 40, par. 1 et seq.). This decree was entered in case number 71-8-1106D. The case number is given to help simplify the subsequent chain of events, which tends to be obfuscated both by the number of post-decree petitions, modifications and orders and by the relevance of a related case bearing the number 74-F-891.

As a part of the divorce decree, the respondent, Donald D. Armstrong, was ordered to pay the petitioner, Anna B. Super, $40 per week child support for the couple's five minor children. Subsequently, modifications to the support order in case number 71-8-1106D were made as follows: $50 per week by order entered June 12, 1972, and $20 per week by order entered October 25, 1977.

On October 5, 1974, pursuant to a complaint filed by the State's Attorney of La Salle County under the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1975, ch. 68, par. 101 et seq.), the husband was ordered to pay child support in the amount of $40 per week. This order was entered in case number 74-F-891.

At a hearing held on February 16, 1977, a rule to show cause filed in case number 74-F-891 was dismissed, and the amount of child-support arrearage was determined to be zero. During the same hearing, the respondent was ordered to pay child support in the amount of $30 per week.

On November 28, 1978 a petition for rule to show cause was filed in case number 71-8-1106D, alleging that the sum of $5,280 was due in child-support arrearages. Following a series of continuances, a hearing was held on the petition for rule to show cause on February 16, 1979. At that time, the matter was taken under advisement by the trial judge.

By order of the circuit court of La Salle County, entered July 13, 1979, the rule to show cause in case number 71-8-1106D was dismissed, and the wife was held bound by the trial court's finding in case number 74-F-891 that no child support arrearages were due and owing. The wife appeals from this order.

• 1 Although the appellee has not filed a brief in this appeal, we nevertheless will consider the appeal on its merits. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.) In the First Capitol case the Illinois Supreme Court observed, "[T]he judgment of a trial court should not be reversed pro forma for the appellee's failure to file its brief as required by rule. A considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal." 63 Ill.2d 128, 131, 345 N.E.2d 493, 494.

The issue as presented by the petitioner is whether the order entered by the trial judge in case number 74-F-891, pursuant to a support order under the Revised Uniform Reciprocal Enforcement of Support Act, which order found the amount of child support arrearages to be zero as of February 17, 1977, has any effect on the "presently existing" arrearage in the amount of $5,280 in case number 71-8-1106D.

Although the petitioner states the issue in terms of a "presently existing" arrearage in the amount of $5,280, it is clear from the record that no judicial determination of this amount was ever made. The petition for rule to show cause first alleging arrearages in this amount was filed on November 28, 1978. On the same day a rule to show cause was entered. However, a hearing on the rule was not held until February 16, 1979, at which time the matter was taken under advisement. Finally, on July 13, 1979, the rule was dismissed and discharged, with the determination that child-support arrearages had previously been determined to be zero. Thus the issue should more properly be phrased: whether the trial judge erred in discharging the rule to show cause and holding the decision in case number 74-F-891 to be res judicata on the question of child-support arrearages.

• 2 We hold that the discharge of the rule to show cause was error, because appellant was thereby denied a hearing to determine the amount, if any, of child-support arrearages presently owed. It was likewise error for the trial judge to find that the decision entered on February 17, 1977, in case number 74-F-891, was res judicata on the question of child-support arrearages.

In a subsequent hearing, to be held pursuant to the decision of this court, the question before the trial court must be the amount of arrearages, if any, accrued in case number 71-8-1106D since the original child-support order was entered on September 10, 1971.

• 3 The purpose of the Revised Uniform Reciprocal Enforcement of Support Act, as set forth in section 1 of the Act, is "to improve and extend by reciprocal legislation the enforcement of duties of support." (Ill. Rev. Stat. 1975, ch. 68, par. 101.) Both criminal and civil enforcement are provided for, but the Act is clearly intended as a supplementary device to enforce support orders previously entered ...


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