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Nerini v. Nerini





Appeal from the Circuit Court of Lake County; the Hon. Harry D. Hartel, Judge, presiding.


Domenic Nerini, defendant, appeals from a judgment of the circuit court of Lake County in favor of his ex-wife, Marcia Nerini, now known as Marcia Knight, plaintiff, for back child support.

The parties were divorced under the Divorce Act, which was then in effect, in a judgment entered April 20, 1964. Custody of the one child born of the marriage, Kimberly, was awarded to plaintiff. No child support was awarded. The court expressly retained jurisdiction for the purpose of entering such orders as may be required for the support and maintenance of plaintiff and the minor child born of the marriage. Plaintiff filed a petition in August 1984 and an amended petition on September 14, 1984, asking for past child support from the date of the birth of the child. She also requested a fair and just proportion of Kimberly's 1984-85 college expenses. Following a hearing on the petition, the trial court awarded plaintiff $18,720, representing $20 per week child support for 18 years. The court further ordered that defendant's tax refund for 1984 of approximately $2,500, based on his joint tax return, be delivered directly to plaintiff, and the balance of the judgment to be paid by defendant at the rate of $70 per week. An order for withholding of income was entered on December 19, 1984.

Defendant raises four issues on appeal: (1) whether the trial court had statutory authority to award retroactive child support, (2) whether the doctrines of laches and equitable estoppel bar plaintiff from seeking an award of child support, (3) whether the record was insufficient to support a judgment of $18,720 for retroactive child support and (4) whether the trial court was without authority to award defendant's entire joint tax refund to plaintiff.

The parties were married December 29, 1962, at which time plaintiff was 15 years old. The parties never lived together. A child, Kimberly, was born January 10, 1963, and plaintiff filed a complaint for divorce on January 20, 1964. Plaintiff sought custody of the child, but no specific request was made for child support. Defendant was personally served with summons in the divorce proceedings on January 28, 1964, while he was incarcerated in Vandalia Correctional Center. Defendant, also a minor at the time, through his appointed guardian ad litem, filed an answer and submitted to the jurisdiction of the court. The decree of divorce was entered April 20, 1964, and contained three decretal paragraphs. First, the divorce was granted on the grounds of desertion. Second, exclusive custody, control and supervision of the minor child was awarded to plaintiff, free from any right of visitation on the part of defendant. Third, the court expressly retained jurisdiction for the purpose of entering orders as may be thereafter required for child support and maintenance.

When plaintiff filed her petition for child support, the child was 21 years old and a senior at Eastern Illinois University. Relevant testimony adduced at the hearing on the petition showed that defendant was 18 years old at the time of his marriage to petitioner. He has been married twice since then and is now supporting seven children, two from his second marriage who live with him, three from his current marriage, and two daughters of his third wife from a previous marriage. Defendant testified that he hasn't seen his daughter Kimberly since 1968 and he wasn't asked to support her. Since Kimberly's birth, he has lived in Lake County, the last five years in Lake Villa and before that in Highland Park, and has had a telephone listed in his name except for one year. He further testified that he earns approximately $28,000 a year and his wife is unable to work because of a medical disability. They own a $65,000 house with two mortgages totaling $58,000 to $60,000 and are in arrears on mortgage payments in the amount of $1,200.

Plaintiff testified that she has lived in the Lake County area the last 20 years and talked to defendant six to 10 times since their divorce. She stated that she had dinner with him on the occasion of Kimberly's fifth birthday in 1968 and that she had asked defendant for help in supporting Kimberly. He replied that he didn't have any money. She stated that she never had sufficient funds to hire an attorney to get child support. She didn't know defendant's home address from the time Kimberly was three to five years old and was told several years ago by a friend that he had moved to Wisconsin. She admitted she hadn't tried to locate him. She also testified that defendant's mother threatened her when she was 16 or 17 that if she tried to get support from defendant, his mother would prove her an unfit mother and take Kimberly away. She further testified as to Kimberly's expenses since 1977 and that she decided to file the petition because Kimberly had school loans of about $7,800 and she believed it would be worth a try to see if defendant could contribute so Kimberly wouldn't have so many loans when she finished school.

Defendant then testified that he had not authorized any threats made by his mother.

The first issue raised by defendant is whether the trial court had the statutory authority to award retroactive child support to plaintiff. He argues that there must be statutory authority under the Illinois Marriage and Dissolution of Marriage Act in order for a court to grant retroactive child support and the relevant statutory provisions do not provide authority for this award. He contends that section 505(a) does not apply as there was personal jurisdiction at the time of the divorce and section 510(a) could not authorize an award of retroactive child support as that section only allows modification of child support subsequent to the date of filing a petition. Ill. Rev. Stat., 1984 Supp., ch. 40, par. 505(a); Ill. Rev. Stat. 1983, ch. 40, par 510(a).

• 1, 2 Before responding to the merits of defendant's first contention, plaintiff raises in her brief two arguments which she asserts foreclose consideration of the issue raised by defendant. First, plaintiff maintains that defendant, while answering her original petition, failed to answer her amended petition which constitutes an admission either of the entire amended petition, or of at least the unanswered additional allegations in the amended petition. Plaintiff, however, never objected to this failure to answer in the trial court and the matter was tried as though the material allegations were denied. Where a party proceeds with the case as though his adversary's pleadings joining issue were on file, he waives the adversary's failure to plead. (Public Electric Construction Co. v. Hi-Way Electric Co. (1978), 62 Ill. App.3d 528, 532, 378 N.E.2d 1147.) Second, plaintiff contends that defendant did not raise below the issue of the statutory authority of the trial court to award retroactive child support. In a motion to strike, defendant did assert, inter alia, the lack of jurisdiction of the court to award support to an adult child and, generally, the insufficiency at law of the petition. Moreover, the trial court, in its letter opinion denying the motion to strike, clearly considered its authority to order back support under these circumstances. We find the theory raised on appeal is not different in substance from that raised below to bar consideration on review.

While the decree of divorce was entered pursuant to the now repealed Divorce Act, the Illinois Marriage and Dissolution of Marriage Act (Act), which replaced the former law, applies "to all proceedings commenced after its effective date [October 1, 1977] for the modification of a judgment or order entered prior to the effective date of this Act." (Ill. Rev. Stat. 1983, ch. 40, par. 801(c); Siegel v. Siegel (1981), 84 Ill.2d 212, 217-18, 417 N.E.2d 1312.) Section 505(a) of the Act applicable to child support provides, in pertinent part, as follows:

"Sec. 505. Child Support; Contempt; Penalties. (a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or any proceeding authorized under Section 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct, after considering all relevant factors, including: * * *." Ill. Rev. Stat., 1984 Supp., ch. 40, par. 505(a).

Examination of section 505(a) shows, as pertinent to the issue involved herein, that it provides for the award of child support in a proceeding for dissolution of marriage and a proceeding for child support following dissolution of the marriage by a court which originally lacked jurisdiction over the absent spouse. As the parties were divorced in 1964 and the trial court had personal jurisdiction over both parties at that time, section 505(a) is not applicable to plaintiff's petition seeking past child support. Both parties appear to agree that section 505(a) does not apply under the circumstances here.

Defendant contends that the only other applicable statutory child support provision under the Act is section ...

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