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01/29/87 In Re Marriage of Janice Gifford

January 29, 1987

IN RE MARRIAGE OF JANICE GIFFORD, PLAINTIFF-APPELLEE, AND


Before Illinois courts will given full faith and credit to a subsequent prospective modification by the responding court, the Illinois court must make three determinations. They are: (1) whether the modification was litigated upon the merits; (2) whether it is a final judgment; and (3) whether the modifying court had personal and subject matter jurisdiction over the parties and the controversy. (See generally Milliken v. Meyer (1940), 311 U.S. 457, 462-64, 85 L. Ed. 278, 282-84, 61 S. Ct. 339, 341-343.) If the responding court did not have the power to modify the Illinois support order, Illinois courts do not have to give it full faith and credit. Coons v. Wilder (1981), 93 Ill. App. 3d 127, 131, 416 N.E.2d 785.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

ROBERT GIFFORD, Defendant-Appellant

504 N.E.2d 812, 152 Ill. App. 3d 422, 105 Ill. Dec. 527 1987.IL.75

Appeal from the Circuit Court of Cook County; the Hon. John P. McGury, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON, J., concurs. PRESIDING JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Janice Gifford, filed a post-decree petition in the circuit court of Cook County against defendant, Robert Gifford, which alleged an arrearage in excess of $18,400 pursuant to an Illinois child-support order. Plaintiff's and defendant's marriage had been dissolved in Illinois in 1981. Pursuant to that dissolution defendant had been directed to pay plaintiff the sum of $154.43 per week for child support. Subsequent to the entry of that dissolution judgment, defendant moved to Michigan and fell behind in his support payments. Plaintiff then filed a Revised Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) complaint in Illinois seeking enforcement of the order of support in the State of Michigan. The complaint was then forwarded to Michigan, where a hearing was held. After that hearing, the Michigan trial court found a duty of support on the part of defendant, but it then prospectively lowered defendant's obligation as to child support. In response, plaintiff filed a rule to show cause in Illinois. After a hearing, the circuit court held that the modified support order entered by the Michigan court did not affect the Illinois marital-dissolution judgment and, therefore, an arrearage existed pursuant to that judgment.

Defendant appeals, contending that the trial court erred in failing to honor and give full faith and credit to the Michigan support order which prospectively modified his support obligations.

Background

Plaintiff and defendant were married on May 12, 1973, in Berrien County, Michigan. On September 8, 1981, they were divorced in Illinois, their State of residence at that time. Pursuant to the terms of that dissolution judgment, defendant was directed to pay plaintiff 35% of his gross income for the support of their three minor children. On September 23, 1981, defendant was directed to pay plaintiff $154.43 per week for child support. Defendant did not file a direct appeal from that order. Subsequently, defendant left his job in Illinois, moved to Michigan and fell behind in child-support payments. In July 1982, plaintiff filed the aforesaid URESA petition in Cook County to enforce the 1981 support order.

The State of Illinois (the initiating State) then forwarded that petition to the circuit court of Kalamazoo, Michigan (the responding State). On December 17, 1982, the Michigan court entered a prospective modified order of support which stated that defendant was unable to comply with his duty of support at that time because he was unemployed. Plaintiff did not appeal that order. After defendant became employed, he petitioned the court to decrease his support obligations. After a hearing on June 15, 1983, the circuit court of Berrien County, Michigan, entered a support order directing defendant to pay plaintiff in the future the sum of $18 per week for the support of each of the minor children of the parties. That order was approved by the prosecuting attorney.

On November 13, 1984, plaintiff filed in Illinois a petition against defendant which alleged that an arrearage in excess of $18,400 had accrued under the parties' Cook County marital-dissolution judgment. A hearing on that petition was held on August 14, 1985. The issue presented to the trial court was whether the support order contained in the parties' Cook County dissolution judgment should be modified prospectively so as to be in conformance with the Michigan support order. The parties stipulated that, if the Michigan order did not supersede the Cook County dissolution judgment, defendant would be in arrears in the amount of $20,865.

On October 3, 1985, the trial court held that the Illinois marital-dissolution judgment had not been modified by the Michigan support order. The court ruled that URESA is primarily an enforcement tool and, consequently, it could not affect the Illinois judgment. The court further found that Michigan had no authority to modify the Illinois support order since it had no personal jurisdiction over plaintiff even though the prosecuting attorney had appeared on plaintiff's behalf at the June 15, 1983, hearing in Michigan.

As stated above, defendant contends that the trial court erred in failing to honor and give full faith and credit to the Michigan support order, which prospectively modified his support obligations.

Opinion

In 1950, in response to the increasing mobility of obligor-spouses, the National Conference on Uniform State Laws approved the Uniform Reciprocal Enforcement of Support Act. (Annot. 31 A.L.R.4th 347, 350-53 (1984).) At the time of the present matter, Michigan had adopted the basic 1950 version of URESA. In 1968, the National Conference and the American Bar Association approved the Revised Uniform Reciprocal Enforcement of Support Act. (Annot. 31 A.L.R.4th 351 (1984).) In 1969, the Illinois legislature adopted the basic 1968 version of the revised URESA.

In Michigan, URESA provides a means by which out-of-State dependents or their representatives may seek to obtain or enforce court-ordered child support. (San Joaquin County, California v. Dewey (1981), 105 Mich. App. 122, 127, 306 N.W.2d 418, 420.) The possible extent of such duties is defined in section 780.158 of the Michigan Compiled Laws Annotated. That section states:

"Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown." (Mich. Comp. Laws Ann. sec. 780.158 (West 1982).)

Once a court in the responding State finds a duty of support, it has the discretion to order the obligor to make such payments. (Mich. Comp. Laws Ann. sec. 780.164 (West 1982)). This necessary duty has been statutorily defined:

"'Duty of Support' includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise." (Mich. Comp. Laws Ann. sec. 780.153(6) (West 1982).)

The existence of a duty does not, however, require the responding State court to establish the amount of support and then order an obligor to make payments to satisfy that duty of support. (See Mich. Comp. Laws Ann. sec. 780.164 (West 1982).) Such a decision is entrusted to the trial court's discretion. (San Joaquin County, California v. Dewey (1981), 105 Mich. App. 122, 129, 306 N.W.2d 418, 421.) Accordingly, a Michigan trial court, acting as the responding State court, has the power to set different amounts of support under its URESA statute with respect to foreign support orders. (Fitzwater v. Fitzwater (1980), 97 Mich. App. 92, 96, 294 N.W.2d 249, 251.) In addition, Michigan courts are under a duty to reevaluate support-payment schedules and may not blindly exercise the aforementioned authority. (Whybra v. Gustafson (1966), 2 Mich. App. 516, 517, 140 N.W.2d 760, 761.) Nonetheless, if such a ...


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