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09/22/88 the People of the State of v. John Money

September 22, 1988






529 N.E.2d 542, 124 Ill. 2d 265, 124 Ill. Dec. 561 1988.IL.1414

Appeal from the Circuit Court of Cook County, the Hon. John R. Ryan, Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court.


This appeal is from a sua sponte holding by a Judge of the circuit court of Cook County that section 20 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2520) is unconstitutional. That section provides for withholding of income to secure payment of child support. The appeal comes to this court pursuant to Rule 302(a). (107 Ill. 2d R. 302(a).) We reverse and remand with directions.

The issues presented are:

*fn1. Whether section 20 provides sufficient due process protections to an obligor and a payor.

2. Whether section 20 violates the doctrine of separation of powers.

3. Whether the circuit court properly determined the amount of monthly child support.


On March 16, 1987, Barbara Sheppard, a public aid recipient, filed a complaint through the Cook County State's Attorney's office to determine the existence of a father-child relationship between her minor son and the defendant, John Money. The complaint was brought under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.). The complaint named John Money as the natural father of Sheppard's son and sought an order for child support.

Defendant was served by substituted service upon a member of his household over the age of 13 years, namely, "Moh. Brother Jerry," on April 2, 1987. The return date was May 1, 1987.

Defendant failed to appear, and an order of default was entered. The cause was set for prove up on June 24, 1987, and notice of that hearing date was sent to the defendant at his last known place of residence.

The defendant failed to appear on June 24, 1987. An ex parte hearing was conducted, and the court entered an adjudication of paternity and an order for support in the amount of $76.50 per month. The amount of support ordered by the court was equal to the monthly amount that the State incurred as damages because Sheppard received public aid.

The State also sought entry of an order for income withholding pursuant to section 20 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2520) and, apparently in anticipation of denial of that request, filed a motion to stay any refusal to enter the withholding order. Both motions were denied on July 17, 1987.

The trial court sua sponte held section 20 unconstitutional because: (1) the procedures deprived the defendant-obligor and an employer-payor of due process; and (2) the wage-withholding provisions amount to an improper delegation of powers in violation of the doctrine of separation of powers.

The Cook County State's Attorney has briefed and argued a number of points, citing only the authority of the Act. A brief, urging reversal of the circuit court's holding, has been filed by the Illinois Task Force on Child Support as amicus curiae. The amicus curiae also contends that the trial court erroneously determined the amount of monthly child support. Appellee has failed to appear or file a brief in this court.


A parent's duty to support his or her minor child is among the oldest principles of law. (See 1 W. Blackstone, Commentaries *446, 447.) This duty has been a traditional source of State child support statutes and concomitant enforcement procedures.

The statutory section declared unconstitutional in the case sub judice is contained in the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.). However, the present controversy has its roots in a series of congressional actions. Congress' increased involvement in the area of child welfare and support is reflected in several amendments to the Social Security Act enacted over the past several years. (Social Security Amendments of 1967, Pub. L. No. 90-248, 81 Stat. 821 (1968); Social Security Amendments of 1974, Pub. L. No. 93-647, 88 Stat. 2337 (1975).) Despite these past amendments, it became increasingly clear that a more disciplined and uniform approach to the national child support crisis and implementation of effective enforcement techniques were needed. (H.R. Rep. No. 925, 98th Cong., 2d Sess. 31 (1984); S. Rep. No. 387, 98th Cong., 2d Sess. 27 (1984).) Recently, Congress enacted the Child Support Enforcement Amendments of 1984 (the Amendments). Pub. L. No. 98-378, codified at 42 U.S.C. § 666 (Supp. III 1985).

The Amendments amended title IV -- D of the Social Security Act to require States to aid the enforcement of child support for families who receive Aid to Families with Dependent Children as well as families who do not receive AFDC. A State's receipt of Federal AFDC funds is conditioned upon the State's compliance with the new laws. 42 U.S.C. §§ 601 et seq., 651 et seq. (1982 & Supp. III 1985).

Under the Amendments, States are required to implement procedures for income withholding as a method of enforcing child support orders. (42 U.S.C. §§ 666(a), (b) (Supp. III 1985).) The Amendments and accompanying Federal regulations, issued by the Department of Health and Human Services, require that all child support orders issued or modified after October 1, 1985, contain a provision for withholding from noncustodial parents' wages or other income of an amount sufficient to cover those parents' support obligations. (45 C.F.R. § 302.70(a)(8) (1986).) The Amendments also mandate implementation of a number of other specific remedies and procedures to improve child support enforcement programs (e.g., expedited processes; State and Federal income tax offsets for overdue support and interception of refunds; imposition of real or personal property liens; paternity determinations; posting of security bonds or guarantees of payment by absent parents; and reports of overdue support to consumer reporting agencies). (42 U.S.C. § 666 (Supp. III 1985).) In cases in which the custodial parent seeks support enforcement through the State's title IV -- D agency, as in the instant case, the procedure for income withholding must be triggered whenever the absent parent fails to make payments amounting to one month's support (see 45 C.F.R. § 303.100(a)(4)(b)(1) (1986)) or when the noncustodial parent requests earlier withholding. Significantly, withholding "must occur without the need for any amendment to the support order . . . or for any further action . . . by the court or entity that issued [it]." 42 U.S.C. § 666(b)(2) (Supp. III 1985); 45 C.F.R. § 303.100(a)(4) (1986).

The instant cause concerns only the mandatory income-withholding provisions of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.), enacted pursuant to the congressional mandate.

The congressional intent is unmistakable. Congress sought the establishment of a speedy and simple method for the withholding of wages or other income. As will be seen, these expedited procedures, provided for in Illinois' statutory scheme, contain built-in due process safeguards to protect the rights of all parties involved.

Our General Assembly, in enacting the Act, together with corresponding amendments to provisions in the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 706.1), the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1987, ch. 40, par. 1226.1 et seq.), and the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, ...

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