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August 1, 1996


Appeal from Circuit Court of Sangamon County. No. 87F188. Honorable George H. Ray, Judge Presiding.

As Corrected September 13, 1996.

Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, J., Honorable Rita B. Garman, J., Concurring. Justice Green delivered the opinion of the court:

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

The instant appeal arises from a paternity proceeding in the circuit court of Sangamon County in which respondent Alfred Burton had been declared the father of a child, J.C., born out of wedlock to petitioner Margaret Collins and had been ordered to make support payments to her in the sum of $190-per-month. On June 4, 1994, a petition was filed on behalf of Margaret to increase the amount of that support. On May 5, 1995, Morris C. Davis, Jr., petitioned for leave to intervene in that proceeding. That petition was denied on May 15, 1995. In an order of October 3, 1995, and a subsequent clarification order of December 26, 1995, the circuit court directed Burton to pay Margaret child support in the sum of $733.40 per month and to pay an arrearage of $4,766. Davis has appealed, contending the court erred in denying him leave to intervene. We affirm.

In Davis' petition for leave to intervene he alleged that (1) he was the father of another child, R.C., born out of wedlock to Margaret; (2) he had been ordered in a paternity proceeding to pay Margaret $500 per month for the support of that child; (3) Margaret also had another child born to her out of wedlock for whom another father was paying child support; (4) the State, acting on behalf of Margaret, had filed an earlier petition to modify the $190-per-month support Burton was paying but had been allowed to withdraw that petition; and (5) in regard to the instant petition to modify, the State could not be expected to "place significant facts in evidence which are relevant under section 505" of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West Supp. 1993)).

Davis' theory behind his request to intervene is that the money Margaret receives for support of her children is necessarily lumped together to furnish the food, clothing, housing and other necessities they receive. Thus, he contends that on his own behalf or, at least, on behalf of R.C., he, as R.C.'s parent, has an interest in seeing that the total sum available for the support of the children is as ample as possible. He alleged that the State cannot be expected to protect R.C.'s interest in regard to the modification of the support for J.C. He further alleged that the State and Burton had colluded to keep Burton's support payments low. He also maintained that the court's ruling on the modification request would be binding on R.C. and him. We agree with the circuit court that Davis did not show that he had a right to intervene.

The record indicates that the modified monthly support payment which Burton was required to make equaled 20% of his stated net income, thus meeting the requirements of the guidelines of section 505(a)(1) of the Act (750 ILCS 5/505(a)(1) (West Supp. 1993)). Section 505(a)(2) of the Act does permit an award of greater than 20% of net income upon a parent if "application of the guidelines would be inappropriate" under listed circumstances. 750 ILCS 5/505(a)(2) (West Supp. 1993). Nevertheless, the indication that the circuit court increased the required support to 20% of Burton's net income tends to refute Davis' contention that the State would not have been able to make a sufficient case under section 505 of the Act. However, we do not make our decision on that basis. Rather, we hold that neither in his individual capacity nor as the father of R.C. did Davis have a sufficient interest to have a right to intervene.

Section 2-408 of the Code of Civil Procedure (Code) governs intervention in civil proceedings and, as applicable here, it provides:

"(a) Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.

(b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.

(e) A person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file. In cases in which the allowance of intervention is discretionary, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." (Emphasis added.) 735 ILCS 5/2-408(a),(b),(e) (West 1992).

As the wording in section 2-408 of the Code indicates, subsection (a) concerns intervention as a matter of right and subsection (b) involves intervention at the discretion of the court. See Mensik v. Smith, 18 Ill. 2d 572, 590, 166 N.E.2d 265, 275 (1960). As the circuit court denied intervention and the conditions required by subsection (b) are not present here, this case turns upon whether Davis, in either his individual or representative capacity, could intervene as a matter of right. Accordingly neither Caterpillar Tractor Co. v. Lenckos, 84 Ill. 2d 102, 417 N.E.2d 1343, 49 Ill. Dec. 329 (1981), Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 415 N.E.2d 1034, 47 Ill. Dec. 721 (1980), nor Mensik is directly on point as they all turn upon whether a discretionary intervention was appropriate.

In Soyland Power Cooperative, Inc. v. Illinois Power Co., 213 Ill. App. 3d 916, 572 N.E.2d 462, 157 Ill. Dec. 393 (1991), the parties had entered into a contract by which the electric utility would build a nuclear power generator and furnish some of its electricity to the cooperative. Litigation ensued in regard to the obligations of the cooperative to the electric utility. Various distributive cooperatives who were members of the cooperative in the suit sought to intervene in the circuit court in order to learn the details of a proposed settlement and to possibly ...

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