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May 19, 1994


Appeal from the Circuit Court of Richland County. No. 90-F-28. Honorable John I. Lundmark, Presiding Judge

Maag, Chapman, Welch

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Respondents, Eugene "Dutch" and Karon McVaigh, appeal from an order entered by the circuit court of Richland County on February 7, 1991, ordering them to pay support to the respondents, Richard and Lois Eckiss, the guardians of the McVaigh's minor child, Kathy McVaigh. For the reasons that follow, we affirm the decision of the trial court.

On August 31, 1989, Kathy McVaigh was removed from her parents' home by the Illinois Department of Children and Family Services (DCFS). In the circuit court of Richland County, DCFS was granted temporary guardianship of Kathy pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1992)). Kathy's removal from the McVaigh home was premised upon her parents' alleged failure to provide Kathy with a safe environment and to protect her from abuse. The record is unclear, but apparently a young unrelated man who also resided in the McVaigh home was believed to have abused Kathy in some fashion. The McVaighs apparently did not believe that the abuse occurred. At a subsequent criminal trial, Kathy testified for the State and her mother, Karon, testified for the accused.

After removing Kathy from her parents' home, DCFS placed her with the petitioners, Richard and Lois Eckiss. Lois Eckiss is Kathy's maternal aunt. The juvenile case regarding Kathy was terminated on February 2, 1990, when the petition for neglect was withdrawn. On the same date, custody of Kathy was established under the Probate Act, and pursuant to that Act Kathy nominated as her guardians Richard and Lois Eckiss. Kathy's parents, Dutch and Karon McVaigh, entered their appearance in the probate court, were represented by counsel, and waived service of summons.

There is a dispute regarding the McVaigh's alleged consent to the establishment of the guardianship. Karon McVaigh testified at the support hearing that it was understood that if she and Dutch consented to the guardianship DCFS involvement would cease. Prior to February 2, 1990, when DCFS had temporary guardianship, the McVaighs paid support for Kathy. After February 2, 1990, the McVaighs did not make any payments to the Eckisses as guardians.

The first petition for support was filed on July 25, 1990, and was brought by the People of the State of Illinois on behalf of Richard and Lois Eckiss as guardians for Kathy McVaigh. This petition alleged that the minor, Kathy McVaigh, was a person entitled to support under the Juvenile Court Act of 1987 (Juvenile Court Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801-1 et seq.), and the petition sought an order from the circuit court for support under section 6-9 of that Act. On August 10, 1990, the McVaighs filed a motion to dismiss, which alleged that the action could not be brought under the Juvenile Court Act and that the State was not a proper party to bring such an action. Although the circuit court found that the McVaighs owed a duty of support to Kathy, it also found that the action could not be brought by the State. On August 17, 1990, the circuit court dismissed the first petition for support. Leave was granted to refile the action with the guardians being the named petitioners.

On September 7, 1990, the Eckisses filed an amended petition for support through the State's Attorney's office. On September 26, 1990, the McVaighs filed a motion to dismiss the amended petition. They alleged in the motion to dismiss that the amended petition was improperly based upon the Juvenile Court Act, which by its own terms did not apply, that the State's Attorney's office should not be involved because the guardianship of the minor is a private legal matter pursuant to the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 1-1 et seq.), and that the amended petition was simply a refiling of the first petition for support, which had been properly dismissed.

On October 3, 1990, the circuit court denied the McVaighs' motion to dismiss the amended petition for support, finding that the Eckisses had a valid cause of action. The circuit court did strike all language in the amended petition referring to the Juvenile Court Act. The court took judicial notice of the facts alleged in the amended petition, that a guardianship had been established for Kathy McVaigh, and that no order for support had been entered.

On October 22, 1990, the McVaighs filed an answer to the amended petition for support and admitted that they are the parents of the minor, Kathy McVaigh, but they denied that they were legally obligated to support her. The McVaighs also filed an affirmative defense alleging that the Eckisses had assumed the rights and obligations of the legal guardianship of the minor, Kathy McVaigh, and among the rights and obligations arising pursuant to guardianship are the custody of the person of the minor and the obligation to support her.

A motion to strike the affirmative defense was filed by the State's Attorney on October 26, 1990, alleging that the affirmative defense filed by the McVaighs did not constitute a recognizable defense at law. The motion to strike was withdrawn on December 6, 1990. Hearings on the case were held on December 6, 1990, and January 2, 1991. The trial court heard testimony concerning the needs of the minor, the income and obligations of the McVaighs, and the minor's chores and work performed in the Eckiss home and on the Eckiss farm. The McVaighs and the Eckisses were present and represented by counsel at all times.

On January 17, 1991, the trial court entered a memorandum of decision. The trial court ordered the McVaighs to pay $60 per week to the Eckisses for Kathy's support and made the support payments retroactive to the date of the original petition for support filed on July 25, 1990. An order of withholding was also entered.

The trial court reasoned that parents are the natural guardians of their minor children and there are several statutes in Illinois which make parents liable for the support of their minor children, including the family expense law (750 ILCS 65/15 (West 1992)), the Illinois Parentage Act of 1984 (750 ILCS 45/1.1 et seq. (West 1992)), and the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 45/1 et seq. (West 1992)). Under these statutes, the obligation of parents to support their minor children is not dependent upon custody. The obligation continues until the minor child reaches majority at the age of 18 or is emancipated. The trial court found that Kathy McVaigh was not emancipated and was in need of support.

The trial court also found that the McVaighs had followed a course of conduct which caused the change of custody, and although they did not agree to the change, they knowingly and voluntarily acquiesced in the change of custody. The court ruled that regardless of who has custody of Kathy, so long as ...

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