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02/02/88 Jennifer Humble, v. the Department of Public

February 2, 1988

JENNIFER HUMBLE, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF PUBLIC AID ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 99, 165 Ill. App. 3d 624, 116 Ill. Dec. 509 1988.IL.118

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendants, Illinois Department of Public Aid (Department) and its director, Edward T. Duffy, appeal from an order of the circuit court of Du Page County reversing a final administrative decision of the Department. The circuit court ruled that a departmental regulation codified at 89 Ill. Adm. Code 160.10(f) (1986) is invalid because it conflicts with a Federal regulation and ruled that, as a result, plaintiff, Jennifer Humble, is entitled to receive three pass-through payments of $50 apiece which had been denied by the Department. On appeal, the Department contends that there is no conflict between its regulation and Federal law.

Plaintiff receives monthly payments under the Aid to Families with Dependant Children program. Section 10-1 of the Illinois Public Aid Code (Ill. Rev. Stat. 1985, ch. 23, par. 10-1) provides that any recipient of AFDC benefits is deemed to have assigned any support obligation for children in his or her custody to the Department. Some of the child support money collected by the State must be returned to the AFDC family pursuant to section 657(b)(1) of the Social Security Act (42 U.S.C.A. § 657(b)(1) (West 1983 & Supp. 1987)), which provides as follows:

"The amounts collected as support by a State pursuant to a plan approved under this part during any fiscal year beginning after September 30, 1976, shall . . . be distributed as follows:

(1) The first $50 of such amounts as are collected periodically which represent monthly support payments shall be paid to the family without affecting its eligibility for assistance or decreasing any amount otherwise payable as assistance to such family during such month . . .." (42 U.S.C.A. § 657(b)(1) (West 1983 & Supp. 1987).)

The $50 payments made pursuant to this statutory provision are termed pass-through payments. In Illinois, these payments are disbursed by the Department to an AFDC family in the second month following receipt of the child support payment. See 89 Ill. Adm. Code 160.10(f) (1986).

On December 7, 1983, the circuit court of Cook County determined that David Davidson is the father of plaintiff's daughter, Kelly, who was born on July 4, 1981. The court ordered Davidson to pay $100 per month in child support. Under section 709(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 709(b)), these payments must be made to the clerk of the circuit court of Cook County. The circuit court then forwards the payments to the Department's Bureau of Child Support in Springfield.

Plaintiff did not receive pass-through payments for the months of September 1985, November 1985, or January 1986. Under the Department's regulations, these payments should have been received in November 1985, January 1986, and March 1986, respectively. (See 89 Ill. Adm. Code 160.10(f) (1986).) David Davidson made child support payments for each of the months in question. The clerk of the circuit court of Cook County received these payments on September 26, 1985, November 29, 1985, and January 28, 1986. These payments were then forwarded to the Department's Bureau of Child Support in Springfield, which posted them on October 2, 1985, December 12, 1985, and February 5, 1986, respectively. The Department also received the October 1985, December 1985, and February 1986 support payments and posted them in the months in which they were due.

The Department asserts that, under certain Federal and State regulations, it is only required to make pass-through payments if it receives the child support payment in the month in which it is due. A Department of Health and Human Services regulation states in relevant part as follows:

"Of any amount that is collected in a month which represents payment on the required support obligation for that month, the first $50 of such amount shall be paid to the family. . . . If the amount collected includes payment on the required support obligation for a previous month or months, the family shall only receive the first $50 of the amount which represents the required support ...


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