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08/18/89 In Re Marriage of Marvin S. Head

August 18, 1989

IN RE MARRIAGE OF MARVIN S. HEAD, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

EVELYN J. HEAD, Respondent-Appellant

543 N.E.2d 345, 187 Ill. App. 3d 159, 135 Ill. Dec. 110 1989.IL.1279

Appeal from the Circuit Court of Lake County; the Hon. Wallace B. Dunn, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Respondent, Evelyn Head, appeals from an order of the circuit court which denied her petition for child support arrearages against petitioner, Marvin Head. On appeal, Evelyn contends that a Kansas district court's order issued pursuant to the revised Uniform Reciprocal Enforcement of Support Act (Uniform Support Act) (Kan. Stat. Ann. 23-451 et seq. (1988); compare with Ill. Rev. Stat. 1987, ch. 40, par. 1201 et seq.) did not modify or nullify an original Illinois support order which was entered when the parties dissolved their marriage.

On September 21, 1981, Evelyn and Marvin obtained the dissolution of their 22-year marriage in the circuit court of Lake County, Illinois. Both parties and the circuit court approved a marriage separation agreement which, in the relevant part, provided:

"That MARVIN S. HEAD shall pay to EVELYN J. HEAD the sum of $541.67 per month as and for support of the minor children, and said sum shall be reduced to $433.33 per month upon the emancipation, marriage or attainment of majority by the eldest child. Said payment for the support and maintenance of the minor children shall commence on the first day of the month immediately following the entry of any Judgment for Dissolution of this marriage that may be entered by the Court. Further, MARVIN S. HEAD shall have the right to claim the children as exemptions on his Income Tax Returns for the Federal tax as well as the State of Illinois Tax, and EVELYN J. HEAD will sign any necessary forms to approve such exemptions."

Marvin failed to make support payments to Evelyn, and she then sought to enforce the support provision of the 1981 separation agreement by instituting a variety of court proceedings against him which included wage garnishment petitions, petitions for a rule to show cause, and a support arrearage petition. In February 1983, Evelyn filed a petition for support arrearages and an affidavit of arrearages pursuant to the Uniform Support Act (Ill. Rev. Stat. 1983, ch. 40, par. 1201 et seq.). The petition alleged that Marvin was $7,278.17 in arrears based on the 1981 separation agreement in which he had agreed to pay $541.67 per month in support. Evelyn's petition requested that she be awarded prospective support of $541.67 per month, or whatever amount the court deemed fair and reasonable, together with any other relief provided for by law. In her petition, Evelyn claimed both of the parties' children as dependents although the eldest child, Wanda, had become emancipated in February 1982.

Evelyn's petition was sent to the clerk of the district court of Sedgwick County, Kansas, where Marvin resided, and Judge John Foulston of that court ordered him to appear for an April 11, 1983, hearing on the petition. Marvin was personally served with that order on February 22, 1983. When Marvin failed to appear at the April 11 hearing, Judge Foulston entered a judgment in Evelyn's favor which directed Marvin to make prospective support payments of $250 per month and to make arrearage payments of $50 per month beginning May 1, 1983.

In June 1988, Evelyn filed a petition for support arrearages in the Lake County, Illinois, circuit court. At the hearing, Marvin argued that the petition for support arrearages based on the 1981 judgment should be denied because the circuit court was obligated to give full faith and credit to the Kansas judgment. After the hearing was concluded, the circuit court made the following findings:

"1. That on February 7, 1983, Evelyn Head caused to be filed in the Circuit Court of the 19th Judicial Circuit, Lake County, Illinois, a Petition for Support under the Uniform Reciptrocal [ sic ] Support Enforcement Act, said Petition bearing General Number 83 -- R -- 38.

2. That in her prayer for relief in said Petition, Evelyn Head requested an Order of Support, 'directed to said Respondent for $541.67 per month or what may be deemed to be fair and reasonable, ...


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