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05/16/95 MARRIAGE SHARON ANN MESECHER N/K/A SHARON

May 16, 1995

IN RE: THE MARRIAGE OF SHARON ANN MESECHER, N/K/A SHARON ANN SCHMITT, PETITIONER-APPELLEE, AND BARRY LEE MESECHER, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Sangamon County. No. 80D1088. Honorable Roger W. Holmes, Judge Presiding.

Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Respondent Barry Lee Mesecher appeals an April 26, 1994, order of the circuit court of Sangamon County requiring him to pay $27,366.19 in unpaid child support and insurance costs to petitioner Sharon Ann Mesecher, n/k/a Sharon Ann Schmitt. Respondent contends that petitioner's present action for unpaid support is barred under the doctrine of res judicata, because petitioner seeks arrearages that accrued prior to an October 22, 1991, court order which had determined the amount of child support arrearages then due. Respondent further contends that the April 26, 1994, order is void because petitioner failed to notify or join the Illinois Department of Public Aid (IDPA) as a necessary party to her present action. We reject both arguments and affirm the trial court's order.

I. BACKGROUND

The parties were married on October 16, 1978. Two children were born to the parties: Michelle Lynn, born August 9, 1978, and Melissa Sue, born February 26, 1980. On January 22, 1981, a judgment of dissolution of marriage was entered. Respondent was ordered to pay $235 per month in child support and to maintain health and hospitalization insurance for the minor children.

Respondent did not meet his obligations, and petitioner approached the IDPA for help with collection proceedings. The IDPA did not initiate any collection proceedings at that time. Petitioner then applied for public aid, apparently sometime in 1986. By virtue of accepting public aid, petitioner assigned to the IDPA her rights to child support, up to the amount of financial aid provided by the IDPA. 305 ILCS 5/10-1 (West 1992).

After petitioner began receiving public aid, the IDPA initiated collection proceedings against respondent. On November 24, 1986, the trial court found that the IDPA had provided $2,324 for respondent's children and entered a judgment against respondent and in favor of the IDPA for that amount. Respondent was ordered to pay child support of $40 per week, plus $4 per week on the judgment. The order did not indicate how the arrearage was calculated. The order stated that "the question of health/hospitalization insurance is reserved."

Respondent did not make payments on the $2,324 arrearage, and on June 1, 1987, the State's Attorney filed a petition for rule to show cause why respondent should not be held in contempt. On July 21, 1987, the trial court found respondent owed "$3,168 in back child support as of July 13, 1987." The order did not make clear whether judgment was in favor of the IDPA or petitioner, but respondent's $10-per-week payments on the arrearage were to be forwarded by the clerk of the circuit court to the IDPA until the IDPA notified the clerk that petitioner was no longer receiving public aid. The IDPA filed such notice in April 1989.

Again respondent did not pay. The IDPA, through the office of the State's Attorney, filed a petition alleging respondent was in arrears $3,133 as of August 16, 1990. The trial court found that respondent was in arrears $4,715 "as of May 6, 1991," and awarded judgment in favor of "the petitioning parties" in that amount. An order dated October 22, 1991, clarified that of this $4,715, $2,649 was owed to petitioner and $2,066 was owed to the IDPA.

On November 10, 1993, petitioner filed a petition seeking $17,773.50 in unpaid support allegedly accruing prior to November 24, 1986, judgment for IDPA. Petitioner also sought reimbursement for $9,592.69 she had spent maintaining medical insurance for the benefit of the parties' children. At the hearing on this petition, respondent did not contest petitioner's figures, but he maintained that the October 1991 order barred further litigation on arrearages owed prior to that date. Petitioner then testified that she came to court the day the October 1991 order was entered in response to a letter from the IDPA. The State's Attorney was representing the IDPA in several arrearage cases that day, and the hearing on petitioner's case lasted only about 15 minutes. Petitioner was not represented by counsel at that time, and she believed that the State's Attorney was representing the IDPA alone. Petitioner signed the October 1991 order after the State's Attorney explained that it covered only arrearages accruing after petitioner began receiving public aid.

Respondent presented no evidence concerning the subject matter of prior proceedings. The trial court concluded that the October order did not preclude the present action for arrearages accruing prior to November 24, 1986, and accordingly it entered judgment in favor of petitioner for $27,366.19.

II. WAS PETITIONER'S PRESENT ACTION BARRED UNDER THE DOCTRINE OF RES JUDICATA?

The supreme court recently set forth the standards for deciding whether res judicata ...


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