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03/23/88 In Re Marriage of Janice Gifford

March 23, 1988

IN RE MARRIAGE OF JANICE GIFFORD, APPELLEE, AND ROBERT


SUPREME COURT OF ILLINOIS

GIFFORD, Appellant

521 N.E.2d 929, 122 Ill. 2d 34, 118 Ill. Dec. 452 1988.IL.405

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. John P. McGury, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Plaintiff, Janice Gifford, filed a post-decree petition in the circuit court of Cook County alleging that defendant, Robert Gifford, was in arrears in child support payments pursuant to the terms of their Illinois marital dissolution judgment. The parties were divorced in Illinois in 1982 and shortly thereafter the defendant moved to Michigan and stopped making child support payments. Plaintiff then filed a Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1983, ch. 40, par. 1211 et seq.) petition in Illinois seeking to compel payment of child support by defendant in the State of Michigan. The Michigan court found that defendant owed a duty of support but it prospectively lowered the defendant's support obligations. The plaintiff later filed the present action in which she seeks to collect arrearages owing pursuant to the Illinois marital dissolution judgment. The trial court found that the Michigan support order did not modify the Illinois marital dissolution judgment and held that defendant was $20,865 in arrears. The appellate court affirmed. (152 Ill. App. 3d 422.) Appeal is taken to this court pursuant to our Rule 315. 107 Ill. 2d R. 315.

A single issue is present for our consideration: whether the Michigan support order issued pursuant to Michigan's URESA statute modified or superseded the original Illinois order of support.

Plaintiff and defendant were married in Michigan in 1973. They later moved to Illinois, where they were divorced in January 1982. Pursuant to the terms of that dissolution judgment, defendant was ordered to pay 35% of his gross income or $154.43 per week for the support of their three minor children. The defendant subsequently moved to Kalamazoo, Michigan, and ceased making child support payments.

In July 1982, plaintiff filed a URESA petition in the circuit court of Cook County to enforce the support order. The petition was forwarded to the circuit court of Kalamazoo, Michigan. After a hearing, the Michigan court entered an order finding that defendant was unable to comply with his duty of support because he was unemployed. The following year, the circuit court of Berrien County, Michigan, entered a prospective support order finding that defendant had become employed and directing him to pay $45 per week for support. The plaintiff later filed the present petition for judgment alleging that an arrearage in excess of $18,400 had accrued under the Illinois support order.

In Michigan, "URESA provides a means by which out-of-state dependents or their surrogates may seek to obtain and/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 purpose of URESA is "to improve and extend by reciprocal legislation the enforcement of duties of support." (Mich. Comp. Laws Ann. § 780.152 (West 1982).) Enforceable duties of support are defined as "those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought" and "[t]he 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. 780.158 (West 1982).) If a Michigan court, acting as the responding State court, finds that a duty of support exists, it then has the discretion to order the obligor to make payments. (Mich. Comp. Laws Ann. § 780.164 (West 1982); San Joaquin County, California v. Dewey (1981), 105 Mich. App. 122, 127, 306 N.W.2d 418, 420.) Moreover, the Michigan court has the power to set an amount of support which differs from the support order of the initiating State. (Fitzwater v. Fitzwater (1980), 97 Mich. App. 92, 294 N.W.2d 249.) Michigan's URESA statute "permits Michigan courts to modify a foreign support decree or judgment where Michigan is responding to a petition brought by an initiating state for enforcement of a prior support decree." Fitzwater v. Fitzwater (1980), 97 Mich. App. 92, 96, 294 N.W.2d 249, 251.

Where a Michigan support order is at variance with the support order of the initiating State, the antisupersession clause of URESA provides:

"Any order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both." Mich. Comp. Laws Ann. § 780.171 (West 1982).

The defendant argues that the antisupersession clause was only meant to apply to vested arrearages. That is, the antisupersession clause only prevents the responding court from entering a support order which modifies or supersedes the vested arrearage as determined by the original order of support. It does not, he contends, interfere with the court's authority to prospectively modify the original order of support. As such, he ...


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