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12/14/94 MARRIAGE KAREN LISS N/K/A KAREN FOX

December 14, 1994

IN RE THE MARRIAGE OF KAREN LISS, N/K/A KAREN FOX, PETITIONER-APPELLANT, AND ALLEN LISS, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Cook County. Honorable Charles J. Grupp, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Rizzi, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Petitioner Karen Fox, formerly Karen Liss, appeals the dismissal of her petition to enforce the child support provisions of a marital settlement agreement (the Agreement), incorporated September 8, 1989 by a judgment for dissolution of marriage (the Judgment), against her former husband, respondent Allen Liss. The Agreement granted petitioner custody of Louis, the parties' seven-year-old child. The Judgment required respondent to pay child support to petitioner in the amount of $100 per week or 20% of his net annual income, whichever is greater.

The petition to enforce the child support provisions sought redress for respondent's failure to pay part of the $100 per week owing petitioner, or 20% of his annual income which would exceed the $100 per week amount specified. Additionally, the petition sought to require the payment of extraordinary medical expenses incurred on the minor's behalf totalling $1,035.

The trial court granted respondent's motion to dismiss the petition, finding the "20% provision" void and unenforceable according to section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage Act (the Act). See 750 ILCS 5/505(a)(5) (West 1992).

Petitioner argues on appeal: (1) the trial court erred in refusing to enforce the court-approved terms of the Agreement; (2) the trial court also erred by ruling that the 20% provision was void and unenforceable in light of section 502 of the Act (see 750 ILCS 5/502(b) (West 1992)); and (3) respondent was precluded under the doctrine of res judicata from collaterally attacking the Judgment.

We reverse and file this opinion pursuant to Illinois Supreme Court Rule 23(a)(2), which dictates resolution by opinion of a case which "resolves, creates, or avoids an apparent conflict of authority with the appellate court." Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(a)(2), effective July 1, 1994.

Before beginning our analysis, we consider the background of the statute at issue. In 1984 the General Assembly enacted legislation requiring the imposition of guidelines in the computation of child support. Some courts subsequently entered judgment orders that were expressed only in percentages. (See, e.g., In re Marriage of Ingram (1994), 259 Ill. App. 3d 685, 631 N.E.2d 386, 197 Ill. Dec. 383; In re Marriage of Campbell (1993), 261 Ill. App. 3d 483, 633 N.E.2d 797, 199 Ill. Dec. 1.) Such judgments apparently put the clerks into a frenzy since their computers were not programmed to accept information other than dollar amounts for child support purposes. Thus, back to Springfield in 1985 to amend section 505(a) to provide, "The final order in all cases shall state the support level in dollar amounts." See 750 ILCS 5/505(a)(5) (West 1992).

In debate in the House of Representatives, the measure's sponsor, Representative Myron Olson, explained that the new provision required that the court's order for child support state "a dollar amount as opposed to a percentage of income." (84th Ill. Gen. Assem., House Proceedings, May 20, 1985 (Debate), at 64.) Later in the proceedings, the sponsor clarified that the provision "was intended to help the clerk responsible for collecting payments not to be dealing in percentages and specific dollar amounts." (Debate, at 35.) Accordingly, the stated goal of this amendment was to require that an exact dollar amount be set forth in each judgment order. The Act did not address the court's jurisdiction or explicitly prohibit the practice of designating a percentage of the payor's income as the amount payable for child support so long as the final order in all cases sets the support level in dollar amounts.

Since the enactment of the amendment to the Act, courts have refused to enforce the court-approved terms of agreements which set forth the parent's responsibility for child support only as a percentage of his or her income. (See Ingram, 259 Ill. App. 3d 685, 197 Ill. Dec. 383, 631 N.E.2d 386; Campbell, 261 Ill. App. 3d 483, 633 N.E.2d 797, 199 Ill. Dec. 1.) This genre of cases represents the precise reason for the enactment of the 1985 amendment; i.e., to avoid confusion in collecting and processing for distribution moneys owing for child support. Clearly, judgments which merely establish a percentage for child support fall within the ambit of the amendment to section 505(a).

A different question, however, is considered in the division of various recent appellate courts as to the implications of a provision which imposes the payment of a specific sum and also includes a percentage as a greater or lesser sum which might be payable in the future depending upon the happening of a stated condition; with regard to the facts at hand, whether 20% of respondent's income exceeds $100 per month.

One line of Illinois cases holds that a provision which sets forth the parent's responsibilities as a percentage of income, with a minimum payment expressed as a dollar amount, violates section 505(a) as amended. (See In re Marriage of Sheetz (1993), 254 Ill. App. 3d 695, 627 N.E.2d 154, 194 Ill. Dec. 38; see also In re Marriage of Macino (1992), 236 Ill. App. 3d 886, 603 N.E.2d 105, 177 Ill. Dec. 324 (support provision requiring parent to pay 20% of his net income with a minimum payment of $20 per week not void since entered before section 505(a) was amended).) For example, Sheetz recognized that child support is a creature of statute and that the Act does not otherwise permit the trial court to include in its order, by approving an agreement, any provisions for child support that the court could not order in the absence of the agreement. ( Sheetz, 254 Ill. App. 3d at 699.) The Sheetz court reasoned that the trial court lacked jurisdiction to enter an order partly based upon percentages because the statute did not authorize such action; therefore, the judgment was determined to be void. ( Sheetz, 254 Ill. App. 3d at 699; Macino, 236 Ill. App. 3d at 888-89; see also In re Marriage of Fahy (1991), 208 Ill. App. 3d 677, 567 N.E.2d 552, 153 Ill. Dec. 594.) Such a holding was probably necessary since the time for appeal had long expired at the time the enforcement proceedings were being considered.

In the more recent case of In re Marriage of Florence (1994), 260 Ill. App. 3d 116, 632 N.E.2d 681, 198 Ill. Dec. 351, the Fourth District candidly declined to follow Sheetz. The Florence court observed that in determining whether a judgment is void, the analysis usually focuses on the court's subject-matter jurisdiction and jurisdiction over the parties. ( Florence, 260 Ill. App. 3d at 120.) Even if the trial court misconstrues or misapplies a statute which may be said to affect its jurisdiction, if the court had subject-matter jurisdiction and jurisdiction over the parties, its judgment was not void. Florence, 260 Ill. ...


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