APPEAL from the Circuit Court of Cook County; the Hon. NORMAN
J. EIGER, Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
This appeal arises from post-divorce decree proceedings instituted by former spouses Joan Harner (Joan) and William Harner (William), whose marriage was dissolved by order of the circuit court of Cook County on July 22, 1974. William has failed to file an appearance in this court or an appellee's brief. Nevertheless, the merits of the appeal will be considered under the rule of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 131, 345 N.E.2d 493.
Joan claims the circuit court erred (1) in using earlier child-support overpayments made by William to cancel his obligation for amounts due to Joan for their children's extraordinary medical expenses; (2) in its determination concerning requested modification of child support for their two youngest children (Mark and Laura); (3) in refusing to enter its child support modification order nunc pro tunc to the date of the filing of Joan's petition; and (4) in failing to conduct an impartial hearing.
Under the judgment of divorce entered July 22, 1974, the circuit court ordered William to pay Joan $900 per month unallocated child support for the parties' four minor children. This amount was to be abated by a fixed percentage as each child reached majority. William was also to pay extraordinary medical care costs required for the children. Joan was to claim the child support as income on her Federal tax returns.
On December 8, 1980, William filed a petition with the circuit court requesting that Joan be ordered to comply with the tax provisions of the divorce judgment. Joan counterpetitioned, requesting among other things that William be ordered to reimburse her for medical expenditures she had made for the children and for an increase in child support for the parties' "three" minor children. (In fact, their older son (Joseph) was 19 when the counterpetition was filed; their second son (Mark) became 18 in the month following the court order appealed here; the youngest child (Laura) was 15 when the counterpetition was filed.) Joan requested that the monthly level of child support be increased from $710 to $1,850. William later petitioned the court for an order that Joan reimburse him for $3,360 of child support he had overpaid her on behalf of Joseph after that child had reached his majority.
At the hearing, William related that his salary at the time of the divorce in 1974 was $34,000 per year, and that his gross income was about $42,000. In 1980, William had a salary of $43,000 and a gross income of $78,300. He worked as a salesman throughout the period. Much of his nonsalary income came from bonuses he received. He drove a company car, and the company paid much of his business expenses. William bought a home in 1979 for $105,000, with a $30,000 mortgage.
The parties' oldest child (Terry), a daughter, had lived with William for nearly six years. She was 24 at the time of the hearing. William had ceased paying child support for her at the time she moved in with him. He continued to pay the remaining amount of support due, $710 per month, even after Joseph reached 18 on September 19, 1979. Before reducing the child support for this son as he was entitled under the decree, William had made an overpayment of $3,360. He demanded a refund from Joan, but she refused. William stated he had been unaware of his right to reduce child support for Joseph upon the latter reaching his majority. He had reduced support payments from $900 to $710 per month only because his daughter Terry was living with him, and not due to her age.
Joan testified in detail as to expenses for the youngest child, Laura, including Laura's share of the family housing and utility costs. The total amount was $505 per month. Joan testified that the monthly expenses for Mark were $560. Joan admitted these figures were largely guesses on her part.
At the time of the hearing, Joan had remarried. She was not working. She owned the home in which the family lived. It was worth $100,000 and was subject to an $8,000 mortgage.
Joan had spent approximately $2,150 of her own money for medical expenses which William was obligated to pay under the terms of the divorce decree. Up to the time of the hearing, he had provided only $350 of that amount.
The circuit court ruled that the amount of the overpayment of child support made by William ($3,660) should cancel out the amount of medical costs he owed Joan (approximately $1,800). The court refused to increase child support for Mark. It did order William to continue to make support payments for Mark in the amount required under the divorce decree until he graduated from high school (anticipated in June 1982), even though he would be 18 years old during that time. Finally, the court increased the child support for Laura from $315 to $400 per month.
Joan contends that the circuit court erred in allowing William to offset the amount he owed to Joan for the children's medical expenses with the amount of child support he had overpaid.
• 1 The question of whether a parent may use overpayments of child support to offset other amounts actually due and owing has apparently not been answered in Illinois. The general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree. (Whitman v. Whitman (1980), ___ Ind. App. ___, 405 N.E.2d 608; Webb v. Webb (Mo. App. 1971), 475 S.W.2d 134; Horne v. Horne (1968), 22 N.Y.2d 219, 292 N.Y.S.2d 411, 239 N.E.2d 348.) This is true even where, as here, the payments are made under the mistaken belief that they are legally required. (Crowder v. Crowder (La. App. 1974), 296 So.2d 842; see Annot., 47 A.L.R.3d 1031, 1058-61 (1973).) The policy underlying this rule is to prevent the ...