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In re Marriage of Julie L. Potts

June 24, 1998

IN RE MARRIAGE OF JULIE L. POTTS, PETITIONER-APPELLEE, AND JEFFREY A. POTTS, RESPONDENT-APPELLEE (JENNIFER M. POTTS, N/K/A JENNIFER HORTON, INTERVENOR-APPELLANT). JEFFREY A. POTTS, PETITIONER-APPELLEE, AND JENNIFER M. POTTS, N/K/A JENNIFER M. HORTON, RESPONDENT-APPELLANT.


The opinion of the court was delivered by: Justice Inglis delivered the opinion of the court:

Appeal from the Circuit Court of Boone County. No. 97--D--7 Honorable Gerald F. Grubb, judge Presiding. Appeal from the Circuit Court of Winnebago County. No. 90--D--547 Honorable Steven G. Vecchio, Judge, Presiding.

Respondent-intervenor, Jennifer Horton, appeals the order of the circuit court of Boone County (appeal No. 97--0912) vacating its prior order, which granted her petition for leave to intervene, and denying her motion to vacate the award of child support. Jennifer also appeals the order of the circuit court of Winnebago County (appeal No. 97--1149) awarding child support to her child.

Jennifer and Jeffrey Potts dissolved their marriage in 1991. They had one child during their marriage (hereinafter first child). Following the dissolution of that marriage, Jeffrey married Julie Potts in 1992. Jeffrey had two children during his marriage to Julie.

On January 16, 1997, custody of the first child was transferred to Jennifer in the court of Winnebago County. However, the court reserved ruling on child support because Jeffrey represented that he was unemployed at the time.

In the meantime, on January 17, 1997, Julie petitioned in the Boone County court for the dissolution of her marriage to Jeffrey. On March 12, 1997, the Boone County court, pursuant to an agreed order, granted the dissolution and awarded Julie $50 in weekly maintenance and $150 in weekly support for their two children. There is no indication in the record that the Boone County court knew that there was another support obligation pending in the Winnebago County court.

On March 13, 1997, at the hearing in the Winnebago County court on Jennifer's motion for child support, Jeffrey presented the order of support issued by the Boone County court the day before. Jennifer argued that the court should not consider the amount ordered by the Boone County court in determining the amount of child support for the first child. Jennifer argued that, if it were deducted first, it would virtually deplete Jeffrey's income to the first child's detriment. The court felt that its hands were tied because section 505(a)(3)(g) under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505(a)(3)(g) (West 1996)) provided that prior orders of child support and maintenance must first be deducted from net income before a determination for support could be made. The court then deducted the $200 obligation of support and maintenance from Jeffrey's net income of $366 per week and divided the remainder by 20% to arrive at the amount of $33 per week for the first child's support. The court then advised Jennifer to try to vacate the judgment of the Boone County court.

On April 2, 1997, Jennifer filed a petition for leave to intervene and a motion to vacate the judgment in the Boone County court. Jennifer argued that she sought to obtain child support in Winnebago County following the transfer of custody of the first child to her; that the issue of support was reserved because Jeffrey was unemployed at the time; and that the judgment entered by the Boone County court in the interim deprived the first child of the appropriate amount of support that she should have received as the first-born child. Jennifer asked the court to vacate the judgment regarding child support and maintenance and to recalculate child support considering the needs of the first child as the first-born child. The court granted the petition for leave to intervene. However, after considering the argument of the opposing counsel, the court vacated its order granting the petition for leave to intervene.

Thereafter, Jennifer filed a motion in the Winnebago County court to reconsider its order of support. She argued that Jeffrey's income substantially increased in the interim and that the court should disregard the Boone County court's child support and maintenance order. The court continued to adhere to its prior decision that the Boone County court order was a prior obligation. However, it increased child support to $50 per week based on 20% of the increase in Jeffrey's net income after deducting the "prior" $200 obligation to his second family.

Jennifer appeals, contending that the Boone County court erred in vacating its prior order, which granted her petition for leave to intervene, and that the Winnebago County court improperly calculated and set the first child's child support. We granted Jennifer's motion to consolidate the appeals.

We note that neither Julie nor Jeffrey has filed briefs in this court. However, we will consider the merits of the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976).

We turn first to Jennifer's contention that the Boone County court erred in vacating its prior order, which granted her petition for leave to intervene. Section 2--408 of the Code of Civil Procedure (735 ILCS 5/2--408 (West 1996)) governs intervention in civil proceedings. It provides, in relevant part:

"(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." 735 ILCS 5/2--408(a),(b)(West 1996).

We do not find that the conditions required by subsection (b) are present here. Therefore, this case turns upon whether Jennifer could intervene as a matter of right. Our research has found one case concerning intervention as a matter of right in a proceeding involving child support. In People ex rel. Collins v. Burton, 282 Ill. App. 3d 649 (1996), the underlying case involved a paternity proceeding in which the respondent was declared the father of a child born out of wedlock to the petitioner and was ordered to pay child support. Morris C. Davis, Jr., who was the father of another child born out of wedlock to the petitioner and who also had to pay child support to the petitioner, filed a petition for leave to intervene. Davis argued that he had an interest in seeing that the total sum available for the support of his child was as ample as possible. He also argued that the State could not be expected to protect his child's interest in regard to the ...


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