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09/07/88 In Re Estate of Anthony J. Ierulli

September 7, 1988

IN RE ESTATE OF ANTHONY J. IERULLI, DECEASED (LYDIA


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Ierulli, Ex'x, Defendant-Appellant, v.

Elaine Rosier, Claimant-Appellee)

528 N.E.2d 1008, 174 Ill. App. 3d 134, 124 Ill. Dec. 117 1988.IL.1350

Appeal from the Circuit Court of Peoria County; the Hon. Thomas G. Ebel, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE STOUDER delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

This is an action against an estate for unpaid child support and statutory interest. Anthony J. and Elaine J. Ierulli (now Elaine J. Rosier) were divorced in Peoria County on March 12, 1965. As it pertains to child support, the divorce decree provides that Anthony J. Ierulli pay, in addition to necessary dental, medical and educational expenses for his four children, $100 per week for child support until January 1, 1966, at which time the amount increased to $125 per week.

Anthony J. Ierulli died in September of 1985, and his estate was opened. Elaine J. Rosier (Rosier) filed claims against the estate and sought partial summary judgment on her claim for unpaid child support plus statutory interest. With her motion Rosier filed an uncontroverted affidavit stating that while $66,950 in child support was due for the period between 1970 and 1981, she received only $51,048.96, leaving a $15,901.04 deficiency. To establish the amount owed, Rosier attached to her affidavit a January 22, 1970, order of the circuit court of Peoria County, requiring Anthony J. Ierulli to pay $125 per week child support (reduced to $25 per week when the children visited him at his expense) to the clerk of the circuit court of Peoria County. To establish the amount actually paid, Rosier attached to her affidavit a certified copy of the receipt of child support payments which were paid to the clerk of the circuit court of Peoria County, which shows the amounts received to be $51,048.96.

The estate raised the equitable defenses of laches and estoppel. Rejecting the estate's defenses, the trial court granted Rosier's motion, awarding her $15,901.04 for the child support arrearage plus $12,250.87 interest. The trial court denied the estate's motion for reconsideration. The estate appeals.

The first issue we address is whether the trial court should have found Rosier's claim for unpaid child support subject to the estate's defense of laches. Whether a party is subject to the laches defense is a question to be resolved by the trial court. (Finley v. Finley (1980), 81 Ill. 2d 317, 330, 410 N.E.2d 12, 18.) The trial court's determination will not be reversed unless it is so clearly wrong as to constitute an abuse of discretion. (81 Ill. 2d at 330, 410 N.E.2d at 18; Atwater v. Atwater (1974), 18 Ill. App. 3d 202, 210, 309 N.E.2d 632, 639.) A trial court abuses its discretion when, in view of all the circumstances, its decision exceeds the bounds of reason and ignores recognized principles of law such that substantial inJustice resulted. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) On this issue, then, we would reverse only if the trial court exceeded the bounds of reason and ignored recognized principles of law resulting in substantial inJustice to the estate in finding the laches defense unavailable. Our review shows the trial court's decision to be correct.

The equitable defense of laches is available where, considering all the circumstances, a defendant shows that it would be prejudiced by an award of relief to the plaintiff considering the plaintiff's failure to assert its right over a period of time. (Gill v. Gill (1973), 56 Ill. 2d 139, 144-45, 306 N.E.2d 281, 284.) Mere passage of time, standing alone, will not warrant the application of laches. (In re Estate of Comiskey (1986), 146 Ill. App. 3d 804, 810, 497 N.E.2d 342, 345.) The party asserting the laches defense must establish facts showing that it will suffer prejudice or injury. (146 Ill. App. 3d at 810, 497 N.E.2d at 345.) An estate's bald assertion that the decedent's death prevents it from proving its defense will not suffice to establish prejudice or injury. (146 Ill. App. 3d at 809-10, 497 N.E.2d at 345.) If the estate suffers inconvenience in producing evidence in the form of cancelled checks, tax returns, or other identifiable documents, doubtless, the decedent would likewise have difficulty in establishing his defense. 146 Ill. App. 3d at 809-10, 497 N.E.2d at 345.

In this case the estate argues solely that the decedent's death substantially precluded presentation of its defense. The defense produced no affidavits, depositions or other evidence to show that the decedent's records are unavailable or that they were even sought. Under these circumstances, we are reluctant to conclude that the trial court abused its discretion in finding the laches defense unavailable to the estate. Accordingly, we hold that the trial court was correct in refusing laches as a defense to Rosier's claim for unpaid child support.

The next issue we address is whether the trial court should have found that Rosier was otherwise estopped from bringing her claim for child support. To prevail on a claim of estoppel, the party raising the defense must show that, having no access to the true facts, it relied on statements or conduct of the plaintiff to its detriment. (Heinze v. Heinze (1979), 79 Ill. App. 3d 1121, 1124, 398 N.E.2d 1187, 1190.) Here, as in the asserted defense above, there is no evidence sufficient to support the defense of estoppel. Specifically, the estate has offered nothing to show ...


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