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Sullivan v. Sullivan





APPEAL from the Circuit Court of Henry County; the Hon. PAUL E. RINK Judge, presiding.


The defendant, Mary Ann Sullivan, appeals from the order of the Circuit Court of Henry County which dismissed her petition for rule to show cause, rejected her claim of attorney's fees, transferred the custody of one of the parties' daughters from Mary to the plaintiff, Daryl D. Sullivan, and reduced Daryl's child-support and maintenance obligation. We affirm.

In 1968, Mary and Daryl were divorced in New York after marrying in Illinois in 1955. By order of the New York court and pursuant to a separation agreement, Daryl was to pay $655 per month as maintenance and support to Mary and their seven children then in her custody. Following the divorce, Mary moved to Illinois and Daryl to Ohio.

In 1977, Daryl initiated a change of custody proceeding in the Circuit Court of Henry County to legally recognize that he had custody of one of the parties' daughters, Mary Lou, who lived with him in Ohio for the previous 15 months, apparently in violation of the New York decree. Mary opposed the petition and also requested inter alia a prospective increase in child support and maintenance. The circuit court denied both parties' requests, but this court in Sullivan v. Sullivan (1978), 57 Ill. App.3d 958, 373 N.E.2d 829, reversed and remanded. Upon further proceedings, the circuit court in 1978 denied the change of custody, increased Daryl's monthly maintenance and support obligations to $1,000, and ordered him to pay Mary's attorney's fees of $2,950. Neither party appealed from this order.

In November 1978, an Ohio court, without Mary being present, modified the New York divorce decree and placed one of the parties' daughters, Mary Lou, in the custody of Daryl. Although the court recognized that Daryl improperly retained his daughter and that the Illinois court had recently declined to change custody of Mary Lou, it nevertheless noted Mary Loy had lived with her father for the past 15 months and believed the change of custody was in the child's best interest.

In an attempt to collect the attorney's fees and ensure payment of the increased maintenance and support, Mary commenced proceedings pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) which was applicable in Illinois. (Ill. Rev. Stat. 1977, ch. 40, par. 1201 et seq.) and Ohio (Ohio Rev. Code § 3115.01 et seq.). URESA provides two procedures for enforcing a foreign support order: complaint and registration. In electing the former procedure, Mary first filed a complaint in the initiating State (Illinois) setting forth facts from which it could determine whether the obliger (Daryl) owed a duty of support and whether the responding State (Ohio) could obtain jurisdiction over the obligor or his property. The Illinois court then certified the complaint and forwarded it to the responding court. Following an evidentiary hearing, the Ohio court accepted the finding of the Illinois court that Daryl owed a duty of support.

The Ohio court refused, however, to be bound by the amount of the obligation as set forth in the 1978 support order. Instead, it considered the Illinois order advisory only, and by applying Ohio law, found the $1,000 monthly installments substantially exceeded Mary's needs. Accordingly, the court in January 1979 prospectively modified the obligation and ordered Daryl to pay $600 per month to Mary and the five children then in her custody ($420 allocated to child support and $180 to maintenance), and $100 per month directly to one daughter for 7 months. Mary made no appeal from the Ohio order. In accordance with the Ohio order, Daryl proceeded to pay the support and maintenance obligations.

In May 1980, Mary filed a petition for a rule to show cause in the Circuit Court of Henry County requesting that court to find Daryl in contempt for failing to comply with the 1978 Illinois order. Following a continuance, Daryl moved for a prospective reduction of support and maintenance under the Illinois order. The circuit court ruled that the Ohio court had jurisdiction to modify the Illinois support order, that the Ohio order "took precedence over the previous order of this court," and that, by making all payments as provided in the Ohio order, he was not in arrears. The court also transferred the custody of Mary Lou to Daryl, modified the Illinois order by reducing Daryl's monthly child support and maintenance obligations to $500 ($400 in support for two remaining children and $100 in maintenance), and disallowed Mary's claim for attorney's fees arising from the instant dispute.

• 1 Mary first argues the circuit court erred in failing to enforce this court's decision of Sullivan v. Sullivan (1978), 57 Ill. App.3d 958, 373 N.E.2d 829. In that earlier appeal this court stated Mary was entitled to the $700 in arrearages alleged in her counterclaim. Our decision did not order the payment of the sum, however. Instead, we reversed the circuit court's dismissal of her claim and remanded for further proceedings. Thereafter, that court entered its order, drafted by Mary's counsel, which failed to incorporate the $700 claim. Mary failed to appeal from that order entered in 1978, and accordingly, she cannot complain at this time that the $700 arrearage referred to in our earlier decision was not incorporated in the circuit court's order upon remanding.

She next contends that the circuit court erred when it gave precedence to the Ohio order over the 1978 Illinois order and thereby denied her of $12,950 in past-due non-modifiable support and maintenance installments that had accrued under the 1978 Illinois order.

• 2 We find no error in the circuit court's decision to recognize the Ohio order over the previous Illinois order. Following the 1978 Illinois order, Mary properly entered that order in Ohio one month later by means of an URESA complaint. With both parties present, the Ohio court concurred in the finding that Daryl was obligated to pay support, but it fixed a different amount of prospective support from that set by the initiating court. The law is generally settled that, under URESA, a responding court may enter a new decree for a different amount of prospective child support from that of the initiating court. (See Ainbender v. Ainbender (Del. Super. 1975), 344 A.2d 263; Davidson v. Davidson (1965), 66 Wn.2d 780, 405 P.2d 261; Moore v. Moore (1961), 252 Iowa 404, 107 N.W.2d 97; Commonwealth ex rel. Byrne v. Byrne (1968), 212 Pa. Super. 566, 243 A.2d 196; H. Clark, Law of Domestic Relations in the United States 210 (1968), Kelso, Reciprocal Enforcement of Support Act: 1958 Dimensions, 43 Minn. L. Rec. 875, 880 (1958); but see Craft v. Hertz (N.D. 1970), 182 N.W.2d 293; Coumans v. Albaugh (1955), 36 N.J. Super. 308, 115 A.2d 641.) Specifically, the Ohio court prospectively reduced Daryl's obligation from $1,000 to $600 per month because, contrary to Illinois law, that State refused to recognize inflation and maturation as reasons for increasing support.

We do note, however, that Ohio may well have denied the 1978 Illinois order full faith and credit. It is generally established that one State must recognize a sister State's judgment to the degree that it is non-modifiable. (Griffin v. Griffin (1945), 327 U.S. 220, 90 L.Ed. 635, 66 S.Ct. 556; Sistare v. Sistare (1910), 218 U.S. 1, 54 L.Ed. 905, 30 S.Ct. 682.) The law is equally well settled that the second forum must apply to the first forum's law to determine the extent of modification. (See Worthley v. Worthley (1955), 44 Cal.2d 465, 283 P.2d 19; Light v. Light (1957), 12 Ill.2d 502, 147 N.E.2d 34; Restatement (Second) of Conflict of Laws § 109 (1971).) Accordingly then, to determine the degree to which the 1978 Illinois degree was modifiable, the Ohio court should have referred to section 510 of the Illinois Marriage and Marriage Dissolution Act (Ill. Rev. Stat. 1977, ch. 40, par. 510). That section dictates that a judgment of maintenance or support may not be modified retroactively and may be modified prospectively only upon a showing of changed circumstances. Moreover, courts> of Illinois have consistently held that those facts which were the basis of the original decree become res judicata and that changed circumstances justifying modification of support must occur since the date of the decree. (See Dixon v. Dixon (1977), 45 Ill. App.3d 934, 360 N.E.2d 486.) In the case at bar, however, the Ohio court modified the Illinois decree within one or two months of the Illinois decree and based its ruling upon the same set of circumstances that the Illinois court had used and which had become res judicata. Furthermore, from our examination of the record, there was no indication of changed circumstances to justify the 1978 Ohio modification. Thus, although URESA may authorize a responding court to modify the initiating State's decree, the second forum must nonetheless give full faith and credit to the first judgment to the extent that it is non-modifiable. By refusing to recognize our rules regarding modification, the Ohio court modified a judgment which was not subject to modification in Illinois.

• 3 Nevertheless, even though we believe that the Ohio court may have failed to give our 1978 decree full faith and credit, we are required to give full faith and credit to Ohio's judgment. Any objections Mary had concerning the Ohio modification should have been directly appealed in Ohio and not collaterally attacked as she attempts to do here. The United States Supreme Court has long held that "the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based." (Milliken v. Meyer (1940), 311 U.S. 457, 462, 85 L.Ed. 278, 282-83, 61 S.Ct. 339, 342.) Furthermore, in the case of inconsistent judgments, the merger and bar rule found in the full faith and credit clause requires the latest judgment to be controlling in a third action between the parties. (See Treinies v. Sunshine Mining Co. (1939), 308 U.S. 66, 84 L.Ed. 85, 60 S.Ct. 44; Lynn v. Lynn (1951), 302 N.Y. 193, 97 N.E.2d 748; Restatement of Judgments § 42 (1942).) Although a minority of jurisdictions hold that where the third action returns to the first forum, as in the case at bar, the latest judgment does not control if the second forum refused to give the first forum's judgment full faith and credit (see Porter v. Porter (1966), 101 Ariz. 131, 416 P.2d 564; Colby v. Colby (1962), 78 Nev. 150, 369 P.2d 1019), those holdings are clearly inconsistent with Treinies and demonstrate the parochialism that the full faith and credit clause was intended to prevent. (See DiRusso v. DiRusso (1968), 55 Misc.2d 839, 287 N.Y.S. 2d 171; Rodgers & Rodgers, The Disparity Between Due Process and Full Faith in Credit, 67 Colum. L. Rev. 1363 (1967); Note, 68 Harv. L. Rev. 719 (1955).) For this reason, the circuit court was correct in recognizing the more recent 1978 Ohio decree with respect to past-due non-modifiable support and maintenance obligations.

Mary would equate the instant case with Super v. Armstrong (1980), 83 Ill. App.3d 1062, 404 N.E.2d 1008. There, the parties were divorced in Illinois in 1971, with the husband obligated to pay support pursuant to Illinois Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 1 et seq.). In 1974, pursuant to a criminal complaint filed by the State's Attorney's office under the provisions of URESA, the husband was ordered to pay child support in the amount of $40 per week. In 1977, a rule to show cause filed in the criminal section was dismissed, and the amount of support arrearage was found to be zero. A year later, the wife's rule to show cause filed in the civil divorce action was also dismissed because the circuit court held she was bound by the finding in the criminal proceeding that no past due support payments were owing. This court reversed, finding the circuit court erred when it ruled that the 1977 decision in the criminal action was res judicata on the issue of support arrearages. In referring to section 31 of URESA, we declared that the criminal and civil enforcement ...

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