Appeal from the Circuit Court of McDonough County; the Hon.
U.S. Collins, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The parties were divorced on March 6, 1972. The divorce decree provided that the petitioner, Judy Williams, now known as Judy Easley, would have custody of the two minor children. The respondent, Dennis L. Williams, was to pay the sum of $40 per week as child support until the children became self-supporting, emancipated or of legal age.
On October 14, 1981, the petitioner filed a petition for a rule to show cause why the respondent should not be held in contempt of court for his failure to make child support payments as provided in the March 6, 1972, decree. The petition alleged that as of October 7, 1981, the respondent was in arrears in the amount of $19,600. A request for the court to direct the respondent to bring the payments current was included in the petition.
An order was entered by the circuit court of McDonough County on February 17, 1982. The order stated that the parties had reached an agreement on the matters pending before the court. The parties agreed that the respondent was in contempt of court for his failure to pay child support. As of October 7, 1981, the respondent was indebted to the petitioner for the sum of $19,600 on child support arrearage. The respondent agreed to pay the $40 per week as ordered in the divorce decree and to pay an additional $20 per week on the arrearage. The $60 per week payments were to begin immediately. Also, the respondent agreed to pay the petitioner his portion of any income tax refund received by him for the years 1981 and years thereafter until the arrearage was paid in full.
The February 17, 1982, order further provided that the petitioner could petition the court to impose a sentence upon the respondent if the respondent failed to make the payments as provided in the order. The matter was continued until June 8, 1982, for a status review.
The status review hearing was continued until June 24, 1982. Further proceedings on the matter were terminated on that date.
On July 13, 1982, the petitioner filed a petition for judgment. The petition alleged that the respondent "has refused and still refuses" to pay child support that was due and that as of June 30, 1982, the respondent was $19,460 in arrears. The petition prayed for judgment on that amount plus interest accruing to the date of judgment.
The respondent filed a section 48 motion to dismiss the petition for judgment on July 19, 1982. (Ill. Rev. Stat. 1981, ch. 110, par. 2-619, effective July 1, 1982; formerly Ill. Rev. Stat. 1981, ch. 110, par. 48.) The respondent's motion alleged that the petitioner's petition for judgment was barred by the previous February 17, 1982, order.
A hearing was held on the motion to dismiss. The trial court took the matter under advisement and gave the attorneys an opportunity to file memoranda.
On September 16, 1982, the trial court rendered its decision in letter form in favor of the respondent. The letter stated that the main question presented was whether the February 17, 1982, order barred the action on the petition for judgment. The present action and the previous action for rule to show cause are in personam actions. The same issue is present in both, i.e., whether there was an arrearage in child support owed the petitioner. A consent decree was issued in the first action wherein an arrearage was agreed upon by the parties and a remedy provided, also by agreement. An order was entered. The trial court stated that the consent decree was found to be valid and res judicata of the issues determined therein. As no new facts were alleged in the petition for judgment that arose after the February 17, 1982, order, the previous order barred the petition for judgment by res judicata. Since the petitioner selected a remedy for the same demand, she was precluded from resorting to another.
A formal order of dismissal was entered on September 20, 1982. The petitioner filed a timely notice of appeal from that order.
The only issue raised by the petitioner on appeal is whether the trial court erred in dismissing her petition for judgment. She argues that the concepts of res judicata and election of remedies do not apply.
• 1 Past due child support payments are vested rights, and the custodian of the children does not lose her right to collect the arrearage in support. (Fox v. Fox (1978), 56 Ill. App.3d 446, 371 N.E.2d 1254.) However, in an appropriate case, courts> will give effect to either an agreement of the parties or to the doctrine of equitable estoppel to reduce the amount of child support arrearages. In re Marriage of McDavid (1981), 97 Ill. App.3d 1044, 425 N.E.2d 442.
We have reviewed the case law and found few cases that involve the issue presented. A similar factual situation was present in Wadler v. Wadler (1945), 325 Ill. App. 83, 59 N.E.2d 505. The parties in Wadler were divorced in 1930 and the decree provided that the husband pay $25 a week for alimony and the support and maintenance of the two minor children, whose custody was awarded to the wife. The wife filed a petition for rule to show cause in 1936 because the husband had failed to make the payments for several years. The parties then ...