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08/24/87 Willie Mae Wilson, v. William A. Wilson

August 24, 1987





513 N.E.2d 121, 159 Ill. App. 3d 1091, 111 Ill. Dec. 875 1987.IL.1219

Appeal from the Circuit Court of Cook County; the Hon. John J. Beatty, Judge, presiding.


JUSTICE CAMPBELL delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.


On May 10, 1985, the petitioner, Willie Mae Wilson, filed suit to recover past-due child support owed by the respondent, her ex-husband, William Wilson. The court entered a summary judgment for the petitioner and ordered the respondent to pay $16,309.29. The respondent appeals.

On September 17, 1970, a judgment of divorce was entered ending the petitioner and the respondent's marriage. Prior to entry of the divorce judgment, the respondent was ordered to pay $25 per week in child support for the couple's minor child, Daryl. At the time the judgment was entered, the respondent was $3,700 in arrears. The divorce judgment ordered the respondent to continue making the $25-per-week payments and to pay an additional $10 per week, to be applied toward the arrearage.

On May 10, 1985, the petitioner brought this action alleging that the respondent was $29,282.77 in arrears in the child support payments. This amount represented the $3,700 arrearage plus child support payable from 1970 through 1979, the year Daryl reached 21, as well as interest on both amounts. The respondent denied that there was any arrearage and claimed that he had made all of the payments ordered by the court.

After taking the respondent's discovery deposition, the petitioner moved for a summary judgment claiming that the respondent had not produced competent evidence establishing that payment had been made. At a hearing on the petitioner's motion, the court found that the statement in the respondent's affidavit in opposition to summary judgment that he had paid child support totaling $11,750, by itself, was not sufficient evidence. The court entered summary judgment for the petitioner, and the respondent was ordered to pay $16,309.29, representing the original $3,700 arrearage, plus interest accrued thereon in the amount of $4,363.92, and $8,245.37 in child support accrued between 1970 and 1979.

The respondent raises three arguments in this appeal: (1) the petitioner's motion for summary judgment was improperly granted; (2) the court erred in determining the duration of child support; and (3) the court improperly considered the respondent's deposition in granting summary judgment.

The respondent claims that because there existed a genuine issue of material fact, the trial court improperly granted summary judgment. We agree. A court may properly enter summary judgment only if, after examination of the pleadings, depositions, affidavits, and admissions on file, it can conclude that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Lundin v. Egyptian Construction Co. (1975), 29 Ill. App. 3d 1060, 331 N.E.2d 188; Anderson v. Dorick (1975), 28 Ill. App. 3d 225, 327 N.E.2d 541; Fletcher v. Boxx (1973), 10 Ill. App. 3d 928, 295 N.E.2d 248.) In ruling on a motion for summary judgment, the trial court must construe the pleadings, exhibits, and affidavits presented strictly against the moving party and liberally in favor of the opponent. (Molloy v. Santucci Construction Co. (1979), 78 Ill. App. 3d 249, 397 N.E.2d 125; Lundin v. Egyptian Construction Co. (1975), 29 Ill. App. 3d 1060, 331 N.E.2d 188.) Where opposing affidavits present a contested issue of fact, summary judgment is improper. 29 Ill. App. 3d 1060, 331 N.E.2d 188.

Here, the petitioner filed an affidavit in support of her motion for summary judgment which stated that since September 17, 1970, she had received only $130 of the court-ordered child support payments. The respondent filed an affidavit in opposition of the petitioner's motion, stating that (1) between September 17, 1970, and June 1, 1976, he made regular child support payments totaling $11,750 and (2) he paid the total amount due under the divorce judgment including the $3,700 arrearage. Thus, the parties' opposing affidavits clearly presented a contested issue of fact and summary judgment was improper.

The petitioner argues that the respondent is precluded from using the statements in his counteraffidavit to avoid summary judgment because they are in conflict with his deposition testimony. We do not agree. Although the petitioner correctly notes that a counteraffidavit may not place in issue material facts that are removed from contention by a party's deliberate and unequivocal admissions under oath (Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 32), we conclude that this rule is inapplicable in the present case.

The petitioner claims that during his deposition, the respondent unequivocally stated that he did not know the amount of child support payments made, the dates the payments were made, or to whom they were made. The petitioner contends that these statements were contradicted by the statements in the counteraffidavit. That is not the case. The respondent stated in his counteraffidavit that he could no longer recall the dates and circumstances of every payment and that he no longer had all of the payment receipts. He also stated that he made regular payments totaling $11,750, and that he paid all the support due, including the $3,700 arrearage. These statements do not conflict with the respondent's deposition testimony. In both the deposition and the counteraffidavit, the respondent stated that he could not recall when the payments were made. In addition, the respondent was never asked during the deposition for a total of all the payments ...

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