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05/01/97 MARRIAGE LARRY LAPPE AND LYNN LAPPE (THE

May 1, 1997

IN RE MARRIAGE OF LARRY LAPPE AND LYNN LAPPE, APPELLEE (THE ILLINOIS DEPARTMENT OF PUBLIC AID, APPELLANT).


Appeal from the Circuit Court of Madison County, the Hon. Wendell Durr, Judge, presiding.

The Honorable Justice Bilandic delivered the opinion of the court. Justice Freeman, dissenting. Justice McMORROW joins in this dissent.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

The appellant, the Illinois Department of Public Aid (the Department), filed a motion to intervene in a dissolution action pending between Larry and Lynn Lappe in the circuit court of Madison County. The Department sought to intervene on behalf of Larry Lappe, the custodial parent of the divorced couple's unemancipated minor child, pursuant to sections 10-1 and 10-10 of the Public Aid Code (305 ILCS 5/10-1, 10-10 (West 1994)). The Department also filed a petition on Larry's behalf to establish a child support obligation on the part of the appellee, Lynn Lappe. Lynn filed objections to the Department's motion to intervene, arguing that sections 10-1 and 10-10 of the Public Aid Code were unconstitutional in that they violated the Illinois Constitution's mandate that public funds be used only for public purposes. Ill. Const. 1970, art. VIII, ยง 1. The circuit court ultimately denied the Department's motion to intervene, finding that the application of these sections to allow intervention by the Department in this case would constitute an unconstitutional use of public funds for a purely private purpose. The Department appealed to the appellate court and the appellate court transferred the appeal to this court pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R. 302(a)(1)).

FACTS

Larry and Lynn Lappe were married on October 18, 1969. The couple had two children, Chad and Nicholas. In 1989, both Lynn and Larry filed petitions for dissolution of the marriage in the circuit court of Madison County. On August 21, 1989, the circuit court entered an order dissolving the marriage. The record reveals that Larry filed for bankruptcy pursuant to chapter 7 of the United States Bankruptcy Code on February 12, 1990. According to Larry's bankruptcy schedules, he was then employed as the United States Postmaster of Sorento, Illinois, and had gross earnings of $33,600 in 1989.

On July 13, 1990, the circuit court entered a judgment of dissolution of marriage which incorporated a marital settlement agreement, a joint parenting order, and a qualified domestic relations order regarding the division of Larry's interest in the Civil Service Retirement System Pension Plan. The marital settlement agreement stated that Larry would pay $523.22 per month in child support, which amount would be adjusted if necessary. The joint parenting order stated that the parties would have joint custody of the two children, with Lynn having primary residential custody.

On February 8, 1991, the circuit court entered an order, pursuant to an agreement of the parties, increasing Larry's child support payments to $546.93 per month. Larry's child support payments were again increased by agreement on February 5, 1992, to $567.89 per month, based on a salary increase. On July 30, 1992, a stipulated order was entered modifying Larry's child support obligation to $504.83 per month, because of the emancipation of the couple's older child, Chad.

On March 16, 1993, the circuit court entered an order modifying the judgment of dissolution of marriage, pursuant to the parties' stipulation. This stipulated order provided that the principal place of residence for the couple's minor child, Nicholas, was changed from Lynn to Larry, commencing on March 1, 1993. The order provided that Larry's obligation to pay child support to Lynn would cease, and that Lynn would not be obligated to pay child support to Larry.

On July 26, 1995, the Illinois Department of Public Aid, by the Madison County State's Attorney, filed a motion to intervene on behalf of Larry in the Lappe dissolution action. As grounds for intervention, the Department stated that the Department "is authorized to institute legal action on behalf of [Larry] for judicial enforcement of [Lynn's] support liability, pursuant to 305 ILCS 5/10-10 and 5/10-3.1." On that same date, the Department filed a petition to establish an obligation on the part of Lynn to pay child support for Nicholas. On August 1, 1995, the circuit court granted the Department's motion to intervene.

On August 9, 1995, Lynn filed an objection to the Department's motion to intervene. Lynn argued that the Department's motion should be denied because she "believed" that Larry was not a recipient of public aid and that he had a "large and sufficient income (approximately $41,000.00 per year)." On August 29, 1995, Lynn filed an amended objection to the Department's motion to intervene. The amended objection argued that sections 10-1 and 10-10 of the Public Aid Code, from which the Department derived its authority to intervene in this case, were unconstitutional. Lynn contended that these provisions violated the separation of powers doctrine contained in section 1 of article II of the Illinois Constitution of 1970, and the mandate that public funds may be used only for public purposes contained in section 1 of article VIII of the Illinois Constitution of 1970.

On April 3, 1996, the circuit court entered an order setting aside its previous order granting the Department leave to intervene and denied the Department leave to intervene. The circuit court determined that the relevant statutory provisions authorized the Department to intervene on behalf of Larry. The court found, however, that the provisions violated the constitutional mandate that public funds be used only for public purposes. The court determined that there was no proper public purpose in the Department's providing child support enforcement services to Larry because Larry made $40,000 per year and was therefore able to pursue child support from Lynn without the Department's assistance. The circuit court rejected the contention that these provisions violated the separation of powers doctrine. The circuit court's order concluded as follows:

"It is therefore ordered, that the statutory provisions relied upon and cited herein, while not unconstitutional in the absolute sense, would lead to an unconstitutional result in the instant case, and accordingly the Order of August 1, 1995 granting the State's Attorney leave to intervene is set aside, and said Motion for Leave to Intervene is denied."

The circuit court subsequently entered an order finding that there was no just reason for delaying the appeal of its April 3, 1996, order.

The Department filed a notice of appeal to the appellate court. The Department thereafter filed a motion in the appellate court to transfer the appeal to this court pursuant to Supreme Court Rule 302(a)(1), because the circuit court had held a statutory provision unconstitutional. Lynn objected to the motion to transfer. On August 9, 1996, the appellate court entered an order transferring the appeal to this court.

ANALYSIS

Jurisdiction

Lynn challenges this court's jurisdiction over this appeal. The Department argues that jurisdiction is proper in this court pursuant to Supreme Court Rule 302(a)(1), because the circuit court held that a state statute was unconstitutional. Supreme Court Rule 302(a)(1) provides for appeals to be taken directly to this court from final judgments of circuit courts "in cases in which a statute of the United States or of this State has been held invalid." 134 Ill. 2d R. 302(a). Lynn contends that the circuit court's order in this case did not hold a statute unconstitutional but, rather, held only that the statute was unconstitutional as applied in this case. Lynn relies on this court's decision in Rehg v. Illinois Department of Revenue, 152 Ill. 2d 504, 509, 605 N.E.2d 525, 178 Ill. Dec. 731 (1992), in which we noted that a lower court order that "simply declares that application of [a] statute would violate a particular defendant's constitutional rights" is not directly appealable to this court pursuant to Rule 302(a).

A narrow reading of the circuit court's order in this case supports Lynn's argument. The order states that the statutory provisions "would lead to an unconstitutional result in the instant case." We must look, however, to the effect of the circuit court's order to determine whether the order actually declared the statutory provisions unconstitutional on their face. See Doe v. Gainer, 162 Ill. 2d 15, 18, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994). If the effect of the circuit court's order was to declare a statute unconstitutional on its face, this court has jurisdiction under Rule 302(a)(1). See Doe, 162 Ill. 2d at 18 (although circuit court's order stated that statute was unconstitutional "as applied" to the plaintiff, effect of order was to declare provision unconstitutional on its face and jurisdiction under Rule 302(a)(1) was proper); First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 169, 209 Ill. Dec. 657, 651 N.E.2d 1105 (1995) (this court assumed jurisdiction under Rule 302(a)(1) of appeal from circuit court order which held that certain statutory provisions were unconstitutional "as applied" to the plaintiff); People v. Roos, 118 Ill. 2d 203, 113 Ill. Dec. 81, 514 N.E.2d 993 (1987) (this court assumed jurisdiction under Rule 302(a)(1) of appeal from circuit court order which held that a statute was unconstitutional "as applied" to the practice of acupuncture); Miller v. Lockett, 98 Ill. 2d 478, 479-80, 75 Ill. Dec. 224, 457 N.E.2d 14 (1983) (this court held that jurisdiction was proper under Rule 302(a)(1) even though the circuit court did not directly state that the statute was unconstitutional because it appeared from the order that the circuit court found the statute invalid); Sommer v. Village of Glenview, 79 Ill. 2d 383, 385-86, 38 Ill. Dec. 170, 403 N.E.2d 258 (1980) (this court held that it had jurisdiction under Rule 302(a)(1) of appeal from circuit court order which stated only that a particular statutory provision could not be applied to home rule units because, in effect, the circuit court order necessarily held that the statutory provision was unconstitutional as applied to home rule units).

The Department asserts that the effect of the circuit court's order was to declare sections 10-1 and 10-10 of the Public Aid Code, in part, unconstitutional on their face. We agree. The circuit court ruled that sections 10-1 and 10-10 of the Public Aid Code were unconstitutional as applied to Larry because, in the court's opinion, Larry earned $40,000 per year and therefore was capable of pursuing child support enforcement services without the Department's assistance. *fn1 As we discuss in detail later in this opinion, however, sections 10-1 and 10-10 clearly grant the Department the discretion to provide child support enforcement services to any individual who applies for them, regardless of that individual's financial capability to pursue enforcement privately. Thus, Larry is within the class of recipients contemplated by the statutory provisions. The trial court's ruling that the provisions are unconstitutional as applied to Larry is therefore, in effect, a ruling that the provisions are unconstitutional to the extent they allow application to Larry and others who are "financially capable." In effect, the circuit court declared portions of sections 10-1 and 10-10 unconstitutional on their face. We therefore have jurisdiction pursuant to Rule 302(a)(1).

Constitutionality

We now turn to the substantive issue in this case: whether sections 10-1 and 10-10 of the Public Aid Code, in allowing the Department the discretion to provide child support enforcement services to an individual who may be financially capable of pursuing enforcement privately, serve a public purpose within the meaning of article VIII, section 1, of the Illinois Constitution. The argument that these provisions violate the separation of powers doctrine has not been raised in this court.

It is well established that legislative enactments enjoy a heavy presumption of constitutionality. People ex rel. Sheppard v. Money, 124 Ill. 2d 265, 272, 124 Ill. Dec. 561, 529 N.E.2d 542 (1988); County of Kane v. Carlson, 116 Ill. 2d 186, 216, 107 Ill. Dec. 569, 507 N.E.2d 482 (1987). The party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. People v. Adams, 149 Ill. 2d 331, 338, 173 Ill. Dec. 600, 597 N.E.2d 574 (1992); Bernier v. Burris, 113 Ill. 2d 219, 227, 100 Ill. Dec. 585, 497 N.E.2d 763 (1986). Courts have a duty to sustain legislation whenever possible and resolve all doubts in favor of constitutional validity. Adams, 149 Ill. 2d at 338; Sheppard, 124 Ill. 2d at 272.

The statutory provisions at issue in this case govern the Department's provision of child support enforcement services to individuals who are not receiving public aid. These provisions are part of a larger statutory scheme for the enforcement of child support obligations, and a review of that statutory framework is necessary to provide a proper context for these provisions. We begin ...


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