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People Ex Rel. St. Louis v. St. Louis

OPINION FILED NOVEMBER 14, 1980.

THE PEOPLE EX REL. CHERI LEA ST. LOUIS, PETITIONER-PLAINTIFF-APPELLEE,

v.

GERALD F. ST. LOUIS, RESPONDENT-DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CORNELIUS J. COLLINS, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Respondent appeals from the entry of an order requiring him to pay $250 per month child support on the petition of the State of Wisconsin under the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (URESA) (Ill. Rev. Stat. 1977, ch. 40, pars. 1201 et seq.) *fn1. He asserts that the trial court erred in not dismissing the petition and, alternatively, that the order should have credited him with child support payments made under prior court orders.

In 1975, respondent and his wife Cheri were divorced in the circuit court of Du Page County, Illinois (the Du Page court). The decree, embodying an agreement of the parties, granted custody of their three minor children (ages 2, 4 and 5) to Cheri "subject to reasonable rights of visitation to respondent," who was ordered to pay $70 per week child support to the Waupaca County Social Services in Waupaca County, Wisconsin, where Cheri then resided with the children.

It appears that respondent made the payments, as ordered, until July 21, 1977, when the Du Page court found Cheri in contempt "for failure to obey its lawful orders" and directed the impoundment of future support payments until Cheri purged herself of the contempt. In 1978, on a petition under URESA by the State of Wisconsin in Waupaca County, a court there certified that the petition established defendant owed a duty to support his three children and that "according to the testimony of the spouse seeking support [Cheri] the needs of the children are the sum of $250 per month." The petition and the Waupaca county court certification were then forwarded under the provisions of URESA to the circuit court of Cook County for the entry of the support order.

The Wisconsin petition alleged in pertinent part that Cheri and the children were entitled to support under the provisions of URESA and "[t]hat respondent, on or about November 23, 1977, and subsequent thereto refused and neglected to provide fair and reasonable support for Cheri Lea St. Louis and the other dependents according to his means and earning capacity." In an answer thereto, respondent admitted his duty to support but denied any refusal or neglect to pay and asserted by way of affirmative defense that he has made all child-support payments in the amount and in the manner directed by the Du Page court which, in its order of July 21, 1977, required that all future payments of child support were to be impounded until Cheri purged her contempt of that court.

The record discloses that no witnesses testified at the hearing on the petition, but a stipulated bystander's report of proceedings reveals that the petitioner relied solely on the petition of the State of Wisconsin in asking for the entry of a support order. From the report, it appears that respondent admitted his duty to support the children and presented documents in support of his position that he had continuously made child support payments in the amount of $70 per week since the 1975 decree but that they had been impounded since July 21, 1977, by order of the Du Page court. Included among the documents was a bank passbook, showing that all child support payments up to the date of the hearing had been deposited subject to the further order of the Du Page court.

The trial court ordered respondent to pay $250 per month child support, and this appeal followed.

OPINION

It is the primary contention of respondent that the petition should have been dismissed. In this regard, we initially note our disagreement with one of the positions taken by respondent; namely, that dismissal was the only manner in which the trial court could conform its order to the prior Du Page court orders, as it was required to do by section 30 of URESA (Ill. Rev. Stat. 1977, ch. 40, par. 1230) which, in pertinent part, states:

"If the other action or proceeding [any pending or prior action or proceeding for dissolution of marriage, declaration of invalidity of marriage, legal separation, habeas corpus, adoption, or custody in this or any other state] is concluded before the hearing in the instant proceeding and the judgment therein provides for the support demanded in the petition being heard the court must conform its support order to the amount allowed in the other action or proceeding." (Emphasis added.)

• 1 The emphasized language clearly bound the trial court here to conform its support order to the amount allowed in the Du Page action. Section 30, however, does not (nor does any other URESA provision) demand conformance with orders other than those dealing with support and, thus, there was no requirement to conform to the Du Page court contempt and impoundment orders. Moreover, as respondent was paying a greater amount in support under the Du Page court orders ($70 per week as against $250 per month), we view the trial court's order as conforming to the amount allowed in the Du Page proceeding. We do, however, believe that the trial court should have denied the petition for two principal reasons.

First, because URESA was enacted for the purpose of enforcing support orders previously entered and because respondent had fully complied with such orders in the instant case, there was no support obligation enforceable under URESA. Section 1 thereof states that "the purposes of this Act are to improve and extend by reciprocal legislation the enforcement of duties of support." (Ill. Rev. Stat. 1977, ch. 40, par. 1201.) As explained in Super v. Armstrong (1980), 83 Ill. App.3d 1062, 1064-65, 404 N.E.2d 1008, 1009-10:

"Both criminal and civil enforcement are provided for, but the Act is clearly intended as a supplementary device to enforce support orders previously entered and is not designed to serve as an independent basis for the imposition or termination of support orders";

and, as stated in Moffat v. Moffat (1980), 27 Cal.3d 645, 658, 612 P.2d 967, 975, 165 Cal.Rptr. 877, 885, URESA "was enacted for the purpose of enforcing existing duties of support against persons present legally liable for such support; it cannot create new support obligations." See People ex rel. Oetjen v. Oetjen (1980), 92 Ill. App.3d 699, ___ N.E.2d ___; State ex rel. Arvayo v. ...


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