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06/01/89 In Re Marriage of Debra Jean Bergman

June 1, 1989

IN RE MARRIAGE OF DEBRA JEAN BERGMAN, PETITIONER, AND JON


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

PHILIP BERGMAN, Respondent-Appellee (The Department

of Public Aid, Intervening Petitioner-Appellant)

539 N.E.2d 872, 183 Ill. App. 3d 897, 132 Ill. Dec. 309 1989.IL.827

Appeal from the Circuit Court of Pike County; the Hon. Cecil J. Burrows, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On August 19, 1988, the circuit court of Pike County adopted as its order a stipulation of the parties that, as of June 30, 1988, respondent Jon Philip Bergman was in arrears in child support in the amount of $916.11 and would pay that amount at a specified monthly rate. However, the court denied intervening petitioner Illinois Department of Public Aid's (Department's) motion for the immediate issuance and service of a withholding order on respondent and, on September 21, 1988, further denied the Department's motion to reconsider that denial. The Department now appeals, and we reverse and remand.

Section 706.1of the Illinois Marriage and Dissolution of Marriage Act (Act) contains in pertinent part the following provisions:

"(1) Upon entry of any order for support on or after January 1, 1984, the court shall enter a separate order for withholding which shall not take effect unless the obligor becomes delinquent in paying the order for support . . .; except that the court may require the order for withholding to take effect immediately.

(7) Notwithstanding the provisions of this subsection, if the court finds at the time of any hearing that an arrearage has accrued in an amount equal to at least one month's support obligation . . ., the court shall order immediate service of the order for withholding upon the payor." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, pars. 706.1(1), (7).)

The Act defines "arrearage" as "the total amount of unpaid support obligations" and "delinquency" as "any payment under an order for support which becomes due and remains unpaid after an order for withholding has been entered under subsection ." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, pars. 706.1(2), (3).

The court dissolved the marriage of respondent and petitioner Debra Jean Bergman on May 2, 1985, and awarded custody of the parties' two minor children to petitioner. In the judgment of dissolution of marriage, the court ordered respondent to pay child support in the amount of $62.50 per week per child. The court further entered an order for withholding as required by statute. Ill. Rev. Stat. 1985, ch. 40, par. 706.1.

On January 31, 1986, respondent petitioned the court for a modification of the judgment for dissolution. In it, he claimed the circumstances of the parties had materially and substantially changed and the judgment should be modified to conform to the changed circumstances. Petitioner responded to the petition and further petitioned the court for a ...


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