Appeal from the Circuit Court for the 10th Judicial Circuit, Peoria County, Illinois. No. 94 LM 2045. Honorable James Bumgarner, Judge, Presiding.
Released for Publication June 13, 1996.
Present - Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice. Presiding Justice Breslin delivered the opinion of the court: Holdridge, P.j. and McCUSKEY, J., concur.
The opinion of the court was delivered by: Breslin
PRESIDING JUSTICE BRESLIN delivered the opinion of the court:
The plaintiff, Proctor Hospital (Proctor), filed a complaint under the Family Expense Statute (Expense Statute) (750 ILCS 65/15 (West 1994)) against the defendant, Wayne Taylor, to recover the cost of services it rendered to Wayne's daughter, Erin Taylor. The trial court granted summary judgment against Wayne. On appeal, Wayne contends that the Expense Statute does not apply to divorced, non-custodial parents. In the alternative, Wayne argues that Erin's hospital bill is not a family expense because she was emancipated. He also claims that Proctor must pay his attorney fees and costs. We hold that divorced, non-custodial parents may be held liable for expenses incurred by their children under the Expense Statute. We also hold that expenses incurred by emancipated minors are not family expenses under the Expense Statute and that the question of whether Erin was emancipated was a genuine issue of material fact precluding summary judgment. Finally, we also hold that Proctor must pay Wayne's attorney fees and costs if Erin was emancipated at the time she was treated at Proctor. We thus reverse and remand for a determination of whether Erin was emancipated.
Wayne and Bobbette Taylor were divorced in Marshall County in 1991. Bobbette was awarded custody of the couple's 14-year-old daughter, Erin, and Wayne was ordered to pay child support. In 1994, Wayne filed a petition to terminate child support, alleging that Erin was emancipated because she had moved to Alabama with her fiancee. The circuit court of Marshall County granted the petition on an uncontested basis.
In July 1994, Bobbette took Erin to the hospital for treatment. Bobbette completed and signed an authorization form which indicated that she was Erin's guardian and that she agreed to pay for the services. Wayne neither authorized Erin's admission to the hospital nor agreed to pay for the hospital's services. When Bobbette failed to pay the bill, Proctor commenced the instant suit against both Wayne and Bobbette. Proctor's claim against Bobbette was based on the authorization form. Its claim against Wayne was based on the Expense Statute.
Prior to filing his answer, Wayne filed a motion to dismiss, arguing that the Expense Statute did not apply because Erin was emancipated. However, the trial court found that, regardless of the Marshall County order, Erin was not emancipated for purposes of the Expense Statute. The court thus denied Wayne's motion to dismiss, and Wayne filed an answer which raised Erin's emancipation as an affirmative defense.
Proctor then filed a motion for summary judgment. The trial court found that Wayne was liable for Erin's medical expenses under the Expense Statute, but that he was entitled to a hearing regarding the amount of Proctor's bill. The court thus entered summary judgment against Wayne on the issue of liability. After the hearing, the court entered judgment against Wayne for $10,500.
The first question on appeal is whether a creditor may hold a divorced, non-custodial parent liable under the Expense Statute for expenses incurred on behalf of his or her children.
The Expense Statute provides:
"The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately." 750 ILCS 65/15(a)(1) (West 1994).
There is a split in appellate authority as to whether this statute applies to divorced, non-custodial parents. In In re Marriage of Van Winkle, 107 Ill. App. 3d 73, 437 N.E.2d 358, 62 Ill. Dec. 831 (1982), we held that a divorced, custodial parent could not utilize the Expense Statute to hold her former spouse liable for expenses incurred on behalf of their child. However, in Mercy Center For Health Care Services v. Lemke, 199 Ill. App. 3d 958, 557 N.E.2d 943, 146 Ill. Dec. 1 (1990), the Second District held that a divorced, non-custodial father was liable for his daughter's medical expenses under the Expense Act. See also Carle Clinic Ass'n v. Seten, 176 Ill. App. 3d 590, 531 N.E.2d 127, 125 Ill. Dec. 948 (4th Dist. 1988) (holding that Marriage and Dissolution of Marriage Act does not preclude creditors from recovering payment from divorced, non-custodial parent for necessary expenses of child).
The Lemke court noted that the cases which have held that the Expense Statute does not apply to divorced, non-custodial parents reasoned that a creditor could only recover under the statute if there was a "family in fact." In re Marriage of Van Winkle, 107 Ill. App. 3d 73, 437 N.E.2d 358, 62 Ill. Dec. 831 (3d Dist. 1982); Hess v. Slutsky, 224 Ill. App. 419 (1st Dist. 1922); ...