APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
511 N.E.2d 200, 158 Ill. App. 3d 759, 110 Ill. Dec. 365 1987.IL.999
Appeal from the Circuit Court of Macon County; the Hon. Warren A. Sappington, Judge, presiding.
PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
The parties to this action were married in 1958 and were divorced by a decree entered in the circuit court of Macon County on October 30, 1972. Pursuant to a juvenile petition filed in September of 1971, orders had been entered on February 8, 1972, adjudicating the parties' five minor children wards of the court, and the Guardianship Administrator of the Illinois Department of Children and Family Services was appointed guardian of the persons of the children with power to place the children.
During the hearing on his complaint for divorce, on October 30, 1972, plaintiff testified that the parties' children were then in foster care pursuant to the juvenile proceedings, that he was paying $36 per month as support for the children, and that he was requesting the court in the divorce case to reserve judgment with respect to the children, "for the juvenile court." At the Conclusion of that hearing, the Judge's pronouncements included the following: "Question of custody, right of reasonable visitation and child support of said five minor children reserved by the court until final dispotion [ sic ] of 71 -- J -- 322, In the Interest of John William Conner, Jr., now pending in this court." The decree of divorce included an order "[that] the question of custody of the said minor children of the parties hereto shall be reserved for the consideration of the juvenile court under proceeding number 71 -- J -- 322," but made no reference to the question of support for the children of the parties.
A further Dispositional hearing was held in the juvenile proceeding on December 28, 1973, at which time the guardian of the parties' children was granted authority to place them in the custody of defendant in Tulsa, Oklahoma, under continuing supervision of the guardian. In March of 1975 the guardian reported that the children were doing well in the home of defendant and her new husband in Oklahoma and recommended the release of the children from guardianship. On March 21, 1975, upon the guardian's petition for discharge, he was discharged as guardian of the children of the parties and the juvenile proceeding was dismissed and stricken.
Defendant and her new husband took the children of the parties home with them to Oklahoma on December 28, 1973, and the children continued in her care and custody thereafter.
On April 16, 1986, defendant petitioned the circuit court of Macon County, Illinois, for an award of current child support for Richard, one of the parties' children. In addition to current child support for Richard, defendant sought an order for reimbursement of support provided by her and her present husband to the children of the parties while in her custody. When the five children of the parties were placed in defendant's custody they ranged in age from 2 to 14. The four elder children continued in her custody until attaining age 18 or being otherwise emancipated, and Richard was 15 years old at the time that defendant filed her petition.
Following a hearing on November 19, 1986, the trial court ordered plaintiff to pay child support for Richard at the rate of $26 per week. The trial Judge denied defendant's request for reimbursement of support contributed to the children prior to April of 1986, on the grounds that defendant had waived her right to such reimbursement. The order was entered December 30, 1986, and was corrected on the court's own motion on January 16, 1987; defendant filed a timely notice of appeal on January 23, 1987.
The only issue raised on appeal is whether the trial court erred by refusing to order plaintiff to reimburse defendant for amounts expended by defendant to support the parties' children between the time the judgment of dissolution was granted and the date of the petition for modification of the judgment. We agree with the trial court that an order for reimbursement under the circumstances of this case would be improper. Consequently, we affirm the order of the trial court.
"Except as otherwise provided in paragraph (f) of Section 502, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances. The provisions as to property Disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State."
In Nerini v. Nerini (1986), 140 Ill. App. 3d 848, 488 N.E.2d 1379, the court, in considering a decree of divorce entered prior to the enactment of the current Act followed by a petition for retroactive child support which was filed subsequent to ...