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People Ex Rel. Oetjen v. Oetjen

OPINION FILED SEPTEMBER 30, 1980.

THE PEOPLE EX REL. PATRICIA ANN OETJEN, PLAINTIFF-APPELLEE,

v.

KENNETH A. OETJEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARJAN P. STANIEC, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This appeal arises from an order of the circuit court of Cook County declining to terminate child-support obligations ordered under the Revised Uniform Reciprocal Enforcement of Support Act (URESA) (Ill. Rev. Stat. 1975, ch. 68, pars. 101 through 142 (current version at Ill. Rev. Stat. 1979, ch. 40, pars. 1201 through 1242)).

Petitioner, Patricia A. Oetjen, and respondent, Kenneth A. Oetjen, were married in 1972 in Denver, Colorado. The parties had two children: Michael, born in 1973, and Michele, born in 1976. On May 24, 1976, while the parties were still married, petitioner filed a petition under the Colorado URESA seeking $200 per month child support from respondent. The petition recited that respondent was residing in Illinois and that petitioner was receiving public assistance. In accordance with the provisions of URESA, the petition and certification were forwarded to Illinois, the responding State, and docketed in the circuit court of Cook County as case No. 76CO 2869 (hereinafter referred to as the "URESA court.") The case number is given to clarify subsequent events.

On September 15, 1976, prior to a hearing on the URESA petition, petitioner obtained a judgment for dissolution of the marriage in Colorado. Petitioner was granted custody of the children. Jurisdiction over visitation and property rights was reserved until the Colorado court acquired personal jurisdiction over respondent.

Meanwhile, on June 2, 1976, respondent had filed a complaint for divorce in Cook County (hereinafter referred to as the divorce court) in which he sought custody of the children. Petitioner was personally served but failed to appear, and on September 17, 1976, the court entered a judgment of divorce in case No. 76D 12802. By its terms, child custody was reserved for future consideration and respondent was directed to pay petitioner $35 per week as support for the children.

On December 29, 1976, following a hearing on the pending URESA petition, the URESA court found that respondent was responsible for the support of two minor children and that he was paying $35 per week under a divorce judgment. In conformity with the divorce judgment, the URESA court ordered him to pay $35 per week in child support, effective January 15, 1977.

Thereafter, petitioner sought to vacate the Illinois divorce judgment, maintaining that it was null and void because the marriage had already been dissolved by the Colorado judgment. In a separate pleading petitioner sought to enroll the Colorado judgment in Illinois. The latter motion contained an allegation that on February 6, 1977, Michael was sent to visit respondent and that respondent had refused to relinquish custody of Michael. Petitioner requested that respondent be ordered to return custody of Michael. In opposition, respondent filed a motion for custody of Michael claiming that in February 1977, petitioner brought Michael to Chicago and demanded that respondent take custody of him and that, since then, respondent has had exclusive care of Michael. On March 11, 1977, the court vacated the Illinois divorce judgment. The court also enrolled the Colorado judgment, awarded custody of Michael to petitioner, and granted visitation to respondent. In addition, the order directed respondent to pay $35 per week as child support and recited "that this payment for child support shall be in lieu of the present order for child support entered in Case No. 76CO 2859 [sic]." This order was entered in case No. 77CH 1354.

Several months later, respondent filed a petition in the divorce action seeking an abatement of the child-support order. The basis of the request was that petitioner refused to allow him summer visitation with the children and would not advise him of where she and the children were living. Petitioner was given notice of the hearing but did not appear. On September 12, 1977, the divorce court entered an order vacating and abating respondent's child-support obligation until further order of court.

Thereafter, on May 31, 1978, the State of Illinois, on behalf of petitioner, filed a petition for a rule to show cause in the URESA court alleging that respondent failed to comply with the URESA child-support order and that, as of May 17, 1978, there was an arrearage of $2,450. In a motion to dismiss, respondent alleged that the 1977 abatement order barred petitioner's claim. Petitioner's response stated that the abatement order related only to the Illinois divorce action and was irrelevant to the URESA proceeding. On November 8, 1978, the court denied respondent's motion to dismiss; ordered respondent to resume paying $35 per week child support; and directed Colorado, the initiating State, to furnish petitioner's address and arrange visitation. Respondent was given a credit of $420 paid to petitioner and liquidation of the arrearage was held in abeyance. The petitioning jurisdiction informed respondent of petitioner's address. On May 30, 1979, respondent paid $280 in open court, and thereafter the court found that he was making regular child-support payments.

Later, on September 19, 1979, respondent filed a motion in the URESA action to terminate all child-support obligations on the ground that he had not been permitted visitation and that the September 12, 1977, order relieved him of his duty to pay child support. Petitioner's answer denied that the 1977 order affected the prior URESA order and maintained that, under Illinois law, failure to comply with visitation provisions does not suspend the obligation to provide child support. On February 21, 1980, the court denied respondent's motion to terminate child-support obligations and denied the State's motion for a rule to show cause against respondent. Respondent appeals from the denial of his motion to terminate child-support payments.

On appeal respondent first contends that the order of March 11, 1977, providing that respondent pay $35 per week "in lieu of" the prior URESA order bars the URESA court from collecting child support from respondent.

The purpose of URESA is to secure support for dependent children from persons legally responsible for their support. (People ex rel. Winger v. Young (1979), 78 Ill. App.3d 512, 397 N.E.2d 253; Allain v. Allain (1960), 24 Ill. App.2d 400, 164 N.E.2d 611.) Section 24 of the Act provides that if the responding court finds a duty of support, it may order the obligor to furnish support. (Ill. Rev. Stat. 1979, ch. 40, par. 1224.) Duties of support are those imposed under the laws of any State in which the obligor was present for the period during which support is sought. Ill. Rev. Stat. 1979, ch. 40, par. 1207.

• 1 The URESA proceeding is a separate, independent action to enforce support obligations, and remedies provided under the Act are "in addition to and not in substitution for any other remedies." (Ill. Rev. Stat. 1979, ch. 40, par. 1203; County of San Diego v. Elavsky (1979), 58 Ohio St.2d 81, 388 N.E.2d 1229.) Section 31 of URESA reads, in relevant part:

"A support order made by a court of this State pursuant to this Act does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law * * * regardless of priority of issuance, unless otherwise specifically ...


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