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03/31/97 RICHARD ZUBATY v. AUDREY BEAR

March 31, 1997

RICHARD ZUBATY, RESPONDENT-APPELLANT,
v.
AUDREY BEAR, PETITIONER-APPELLEE, AND ILLINOIS DEPARTMENT OF PUBLIC AID, INTERVENOR-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable R. Morgan Hamilton, Judge Presiding.

Rehearing Denied May 27, 1997. Released for Publication June 25, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., and Quinn, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

This is an appeal under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA or the Act) (750 ILCS 15/11 (1994)). Petitioner, Audrey Bear, filed a petition in Florida against her former husband, Richard Zubaty ("respondent"). The petition sought an order for child support, medical coverage, and arrears against respondent, who had moved to Illinois. The Florida court submitted the petition to the Illinois circuit court for filing.

On March 20, 1995, in the circuit court of Cook County, both petitioner and respondent consented to an agreed order, requiring respondent to pay $80 per week in current child support for their two children, and setting an arrearage in the amount of $13,677.40. The circuit court also entered an order of withholding against respondent on that date. The court continued the matter to May 10, 1995, to determine the payment arrangements for the arrearage.

On April 20, 1995, respondent filed a motion in the circuit court, requesting multiple forms of relief. Specifically, respondent sought (1) a stay of the agreed RURESA support order, (2) a protective order prohibiting harassment by petitioner, (3) an injunction requiring petitioner to provide respondent with full and unconditional access to his children, and (4) an order impounding the child support payments until respondent was permitted such full and unconditional access. In the alternative, respondent moved for the circuit court to declare section 23 of RURESA unconstitutional. The Illinois Department of Public Aid, represented by the Illinois Attorney General, intervened in the proceedings.

On September 22, 1995, following a hearing on respondent's motion, the circuit court entered an order denying respondent the relief he had requested. The court determined it lacked subject matter jurisdiction over the issues raised by respondent and that the Florida courts were the appropriate forum to decide those issues. The court also denied respondent's request to declare section 23 of RURESA unconstitutional. The court ordered the establishment of a payment plan for the arrearage of $13,677.40. Respondent was ordered to pay $80 per week for current support, and $20 per week for arrearage. An order of withholding was also entered on that date.

Respondent filed his notice of appeal on October 20, 1995.

On appeal, respondent first contends the circuit court improperly denied his motion seeking injunctive and other relief. He claims the circuit court improperly denied him an evidentiary hearing on the issues raised in his motion.

The purposes of RURESA, formerly the Uniform Reciprocal Enforcement of Support Act (URESA) (see Ill. Rev. Stat. Ch. 68, pars. 50-59 (1967)), is to "extend by reciprocal legislation the enforcement of duties of support." 750 ILCS 20/1 (1994). RURESA was passed as "a mechanism by which an individual to whom a duty of support is owed (the obligee) can compel the person owing the duty (the obligor) to abide by it when absent from the jurisdiction in which the obligee resides without the [obligee] having to leave that jurisdiction to obtain enforcement." People ex rel. LeGout v. Decker, 146 Ill. 2d 389, 391, 586 N.E.2d 1257, 166 Ill. Dec. 928 (1992).

RURESA itself does not create a duty of support; rather, it provides a means by which to enforce a duty of support as it may exist under the law of the responding state. Johnson v. Johnson, 264 Ill. App. 3d 662, 636 N.E.2d 1013, 201 Ill. Dec. 581 (1994).

The RURESA multi-state procedure begins with the obligee's filing of a RURESA petition in the appropriate court of the initiating state. 750 ILCS 20/14 (1994). Upon the filing of the petition, the initiating state court assesses whether the petition sets forth facts from which it can be determined that there is a duty owed and that the responding state may obtain jurisdiction of the obligor or his property. 750 ILCS 20/14 (1994). Once the initiating state court determines that further proceedings are warranted, the court forwards the petition to the responding state court. 750 ILCS 20/14 (1994).

The responding state court, upon receipt of the RURESA petition, notifies the prosecuting state's attorney, who is required to prosecute the case diligently, taking all action necessary to enable the court to obtain jurisdiction over the obligor, setting a time and place for hearing, and serving notice upon the obligor. 750 ILCS 20/17 (1994). The purpose of the RURESA hearing is to determine whether the obligor owes a duty of support, and the certified copy of the support order from the initiating state court constitutes evidence of such a duty. 750 ILCS 20/20 (1994); 750 ILCS 20/23 (1994). If the responding state court finds that a duty of support exists, it "may order the obligor to furnish support or reimbursement therefor and subject the property of the ...


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