Appeal from the Circuit Court of Sangamon County; the Hon.
Stuart H. Shiffman, Judge, presiding.
PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 5, 1986.
Plaintiff, Barbara D. Blisset, and defendant, Allen R. Blisset, were divorced in the circuit court of Sangamon County on December 23, 1975. The decree gave custody of the two children of the parties to plaintiff and ordered defendant to pay child support in the sum of $40 per week. On March 20, 1984, plaintiff filed a petition with that court seeking (1) to recover delinquent support for the period from December 29, 1975, until March 20, 1984; (2) to modify the decree to obtain additional support; and (3) to modify the decree to obtain college expenses for the older child of the parties. After a hearing, the court entered an order on July 10, 1984, (1) denying the claim for delinquent payments; (2) increasing the support to $200 per month; and (3) reserving the question of college expenses. On August 22, 1985, the court directed defendant to pay $1,000 per year for college expenses and also to pay medical and dental but not optical expenses for the children.
Plaintiff has appealed contending that the court erred (1) in denying relief for delinquent payments; (2) in granting an increase of only $6.15 per week in support payments; and (3) in ordering that the increase begin on August 10, 1984, the date of the order, rather than making the increase retroactive to March 20, 1984, the date the petition requesting the increase was filed. Defendant has cross-appealed maintaining that the court erred in requiring defendant to pay education, medical and dental expenses, and in modifying the amount of child support to be paid. We affirm in part, reverse in part, and remand with directions.
The evidence indicated that of the support payments originally ordered, approximately $15,000 had not been paid as of the filing of the instant petition on March 20, 1984. No court order had been entered in the cause relieving defendant of his responsibility. However, pursuant to a criminal nonsupport proceeding initiated by plaintiff, the evidence indicated that in June 1977 defendant had agreed to restrict his visitation to times when written consent was given by plaintiff, and plaintiff agreed to drop the proceeding. Plaintiff admitted in her testimony at the hearing on her March 1984 petition that her understanding of the agreement was that she would get no future support, but that she was not giving up her right to past support. The trial court found that defendant had relied on plaintiff's promise to forego support payments "to his detriment when he relinquished his right to exercise unlimited visitation with his children." The trial court's designation of defendant's visitation rights as unlimited was not completely accurate, because his right at that time was merely to have "reasonable" visitation.
The districts of the appellate court are split on the propriety of foreclosing a parent from recovering past-due child support when the other parent has failed to make payments over an extended period in reliance upon an agreement between the parents whereby an exoneration for nonpayment was tied to a forbearance from the exercise of visitation rights. In Bartlett v. Bartlett (1979), 70 Ill. App.3d 661, 389 N.E.2d 15, the Third District upheld the existence of such an agreement as a partial basis for estopping the mother from recovering past-due payments from the father. The court also held that the father was responsible for making payments in the future. In Huckaby v. Huckaby (1979), 75 Ill. App.3d 195, 393 N.E.2d 1256, the agreement in issue was one approved by the court and purported to permit the father to not make previously ordered support payments if the custodial mother refused him the previously ordered visitation. The appellate court held that even though the agreement had circuit court approval, it would not defeat the right of the mother for unpaid support accruing during 2 1/2 years while she had refused the father visitation. The opinion treated the issue as one where the father merely relied on the agreement as a binding release. The appellate court deemed the agreement to be contrary to public policy.
• 1 We recognize that a parent cannot bargain away his or her obligation of child support. In Leland v. Brower (1963), 28 Ill.2d 598, 192 N.E.2d 831, the decree entered in Ohio incorporated an agreement wherein the defendant relinquished certain real estate and the plaintiff promised to provide the entire support of the children for a period of three years. The agreement also recited that by reason of severe business reversals, the defendant had no assets of any value and the purpose of the arrangement was to enable him to make a fresh start. Approximately one year later, plaintiff filed a petition alleging that the defendant was now able to provide support. There was no allegation or proof that she was unable to comply with her agreement to provide support or that the children were not being supported. The court stated:
"In Illinois the obligation of a father to support his child begins when the child is born and continues during the minority of the child. (Kelley v. Kelley, 317 Ill. 104.) This obligation is not affected by a decree granting a divorce and awarding custody to the wife, nor can he be relieved of it by agreement with her." Leland v. Brower (1963), 28 Ill.2d 598, 600, 192 N.E.2d 831, 832.
The consideration given by the wife in this case is the giving up of a legal obligation on the husband's part to pay support. This just cannot be approved.
Also, in Nelson v. Nelson (1950), 340 Ill. App. 463, 468, 92 N.E.2d 534, 536, the court stated, "[t]he duty of a parent to support his minor child arises out of a natural relationship" and the claim for support of the children is one which transcends any contractual obligation. As stated in Huckaby:
"So it is in this case that the public policy of this State imposes a duty upon a father to support his child that cannot be bargained away. The agreement between the plaintiff and the defendant to suspend support payments for failure of the wife to afford visitation in the summer of 1975, even though incorporated in an order of court, does not and cannot either transcend or suspend the legally imposed obligation to support minor children." (Huckaby v. Huckaby (1979), 75 Ill. App.3d 195, 199, 393 N.E.2d 1256, 1260.)
The Huckaby court found that the agreement and the court's order which incorporated the agreement were void as against public policy and of no legal effect.
The determination of child support is the court's responsibility and not the parties. To allow or condone the agreement even if made to be binding upon the parties and upon the court would promote such agreements, and the resulting effects will be burdensome upon the custodians as well as the State of Illinois.
Parties to divorce or dissolution matters should not be allowed to contract away their responsibilities especially as they deal with child support. There may very well be many custodians who would bargain away their right to support in return for an agreement not to visit the children. Additionally, section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 510(a)) provides in part, ...