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12/02/94 LINDA SUE MILLER v. JAMES RIGG MILLER

December 2, 1994

LINDA SUE MILLER, N/K/A LINDA SUE NIEHOFF, PLAINTIFF-APPELLEE,
v.
JAMES RIGG MILLER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County No. 76D383. Honorable John C. Wooleyhan, Judge Presiding.

Released for Publication January 5, 1995. As Corrected January 9, 1995. Petition for Leave to Appeal Denied February 1, 1995.

Honorable Carl A. Lund, J., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Defendant appeals the denial of his motions to vacate a 1986 judgment for unpaid child support and maintenance and to dismiss the nonwage garnishment and citation to discover assets, and from entry of a new judgment for additional accrued child support. We affirm in part, reverse in part, and remand for a determination of those sums representing unpaid maintenance.

The parties were married in Quincy, Illinois, in 1967; two children were born of that marriage. At some point the parties separated and in October 1975, plaintiff filed a petition in the circuit court of Adams County seeking $50 per week in child support from the defendant under the Revised Uniform Reciprocal Enforcement of Support Act (URESA) (see Ill. Rev. Stat. 1975, ch. 68, par. 101 et seq.). The case was transferred to Arizona, where defendant was then living. In November 1975, the Superior Court of Graham County, Arizona (the URESA court), found the defendant liable for child support and entered an order providing for $100 per month in child support payable through the circuit court of Adams County.

One year later, plaintiff filed a complaint for divorce in the circuit court of Adams County, Illinois (the dissolution court), requesting entry of an order dissolving the marriage and directing defendant to pay reasonable child support and maintenance "as well as child support heretofore ordered to be paid in another action for which [defendant] is in arrears." Defendant was served with summons and filed an answer but failed to appear for the final hearing. The judgment of dissolution entered in June 1977 awarded plaintiff child support of $50 per week, maintenance of $50 per week, and $800 attorney fees. That judgment was not appealed.

Also in June 1977, plaintiff filed a petition for an order to show cause in the Arizona URESA court, alleging an arrearage in the child support ordered in that case. The URESA court, while noting that plaintiff had been awarded child support of $50 per week and maintenance of $50 per week under the Illinois dissolution decree, entered a second child support order again providing for child support payments of $100 per month effective August 1977.

In July 1986, plaintiff filed a petition to show cause in the dissolution court alleging receipt of only $20 in support payments from defendant and requesting entry of judgment for the sums due and owing pursuant to the 1977 judgment of dissolution, together with current attorney fees. Notice of the hearing on the petition was sent by certified mail to defendant at his place of employment, Fuhs Auto Sales, in Gallup, New Mexico. The receipt was signed by Loren Fuhs, manager, who stated in an affidavit that it was his procedure to deliver certified mail to employees, that defendant was an employee at that time, and that he believed defendant had received the letter in accordance with the procedure. Defendant did not appear at the hearing on the petition held August 7, 1986, and the dissolution court entered judgment of $32,530, representing support arrearage and attorney fees provided for under the judgment of dissolution, and $250 in attorney fees incurred in bringing the petition to show cause. An order of withholding was mailed to defendant in care of Fuhs Auto Sales but it was returned with the handwritten message "return to sender, moved left no forwarding address." At a later hearing, a handwriting expert submitted an affidavit and report concluding the handwriting on the envelope was that of defendant.

On July 7, 1993, plaintiff filed another petition to show cause in the dissolution court, seeking revival of the 1986 judgment and arrearage for child support accruing since that date, together with an affidavit for nonwage garnishment directed to the Trust Department/Boatmen's Bank of Quincy as garnishee for funds held in a spendthrift trust for the benefit of defendant. Although a garnishment summons and citation to discover assets were served on the named garnishee, it was subsequently determined to have been misnomered, and on July 28 plaintiff filed an amended affidavit for nonwage garnishment directed to the Boatmen's Trust Company of Illinois as garnishee (Boatmen's).

On July 29, 1993, the scheduled date for the hearing on the petition to show cause, defendant made a special and limited appearance contesting the jurisdiction of the dissolution court based on an allegation that plaintiff had abandoned jurisdiction in Illinois by obtaining the initial 1975 URESA support order in Arizona. The dissolution court denied the motion contesting jurisdiction and, by agreement of counsel, ordered Boatmen's to retain the funds it held for the benefit of defendant.

Boatmen's was served with an amended citation to discover assets and an amended nonwage garnishment summons on August 10, 1993. Plaintiff filed a garnishment notice, including a certificate of mailing signed by plaintiff's counsel, certifying that within two days of service upon the garnishee a copy of the garnishment summons and notice had been mailed to defendant. Defendant thereafter filed motions to vacate the 1986 judgment, dismiss the garnishment and citation to discover assets, and dismiss the petition to show cause. Those motions were denied on October 7, 1993, and defendant filed a motion to reconsider.

On December 15, 1993, a hearing was held on defendant's motion to reconsider and plaintiff's petition to show cause on the child support arrearage accrued since entry of the 1986 judgment and for revival and enforcement of that judgment. The dissolution court denied defendant's motion to reconsider, found the defendant in contempt, and granted judgment for plaintiff on a new arrearage of $5,375 plus attorney fees and costs of $4,727.88. The court determined that $54,066.50 was currently due on the 1986 judgment, granted the citation and garnishment, and directed Boatmen's to turn over to plaintiff $54,066.50. The order also provided for defendant to purge himself of contempt by paying all sums due, $64,169.38, within 60 days.

Defendant appeals, alleging: (1) the trial court lacked jurisdiction to enter any support orders following entry of the 1975 URESA order; (2) he lacked sufficient notice of the 1986 proceeding and the 1993 nonwage garnishment; (3) the garnishment is invalid because the 1986 judgment was not revived within ...


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