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Department of Public Aid v. Peavy

September 07, 1999

THE DEPARTMENT OF PUBLIC AID EX REL. TAMMY PEAVY, N/K/A TAMMY LAWRENCE, PLAINTIFF-APPELLEE,
V.
JAMES PEAVY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 81--D--175 Honorable Patrick L. Heaslip, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Respondent, James Peavy (James), appeals from the trial court's judgment in favor of the Illinois Department of Public Aid (IDPA), in the amount of $1,639 for past due child support. James contends on appeal that (1) the trial court misinterpreted section 10--1 of the Illinois Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, par. 10--1 (now 305 ILCS 5/10--1 (West 1998))) by allowing the IDPA to collect support payments from him for periods when his ex-wife, Tammy Peavy, now known as Tammy Lawrence (Tammy), did not receive public aid; (2) the IDPA is estopped from seeking payment of the claimed arrearage; and (3) the IDPA's failure to respond to James's demand to admit facts pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216) bars the IDPA from collecting the claimed arrearage. We affirm.

James and Tammy were married in 1978. In 1979, twin daughters were born to them. Tammy filed a petition for dissolution of marriage on February 2, 1981. A dissolution order was entered on April 8, 1981, in which the court reserved the issue of James's obligation to pay child support. The IDPA filed a petition to intervene and obtain support on August 24, 1981, based on Tammy's assignment of her right to receive child support by applying for and accepting Aid to Families with Dependent Children (AFDC). Ill. Rev. Stat. 1981, ch. 23, par. 10--1. On September 14, 1981, the court granted the IDPA leave to intervene and ordered James to pay child support of $40 per week beginning September 9, 1981.

Tammy received public aid from March 1981 through June 1982 and from July 1983 through October or November 1985. The record is unclear as to exactly when she ceased receiving public aid. The total amount of aid she received was $11,227.13.

On September 15, 1988, unbeknownst to the IDPA, the trial court entered an order, pursuant to an agreement between Tammy and James, which terminated James's visitation rights, relieved James of all obligations to pay child support arrearages, and declared void all obligations to pay past, present, or future child support. Based on this order, James filed a motion on December 14, 1995, asking the court to direct the IDPA to stop intercepting his tax returns and to release him from all child support obligations. Instead of granting James's request, the court voided the order of September 15, 1988, because the IDPA was a necessary party and had not received notice of the order or the hearing that preceded it.

The IDPA then brought a petition to determine the amount of James's child support arrearage and alleged that James owed the IDPA $4,269.05. The IDPA calculated the arrearage by multiplying James's $40 per week support obligation by the number of weeks between the date his obligation began, September 9, 1981, and the date Tammy's public aid was canceled, November 30, 1985. According to the IDPA's calculation, the total amount due from James was $8,840, which was comprised of 221 payments of $40. The IDPA then subtracted $4,570.95, the amount James had paid, to arrive at a claimed arrearage of $4,269.05.

James filed an answer and affirmative defenses to the IDPA's petition alleging that the IDPA was estopped from recovering the arrearage because of the earlier order terminating his child support obligations. He further alleged that the IDPA was barred from collecting any arrearage by laches and by assigning its legal interest in the past due child support to a collection agency.

James then filed a counterclaim against the IDPA, alleging that he overpaid the IDPA and was entitled to reimbursement in the amount of $2,240.95. In calculating the amount he owed the IDPA, James multiplied his $40 per week obligation by the number of weeks Tammy actually received public aid rather than the total number of weeks from the beginning of his obligation until the cancellation of Tammy's public aid. According to James's calculations, Tammy was on public aid for 161 weeks. Consequently, James contended that the total amount he owed the IDPA was $6,440, not $8,840. James further claimed that as of May 1997 the IDPA had collected $8,680.95 from him through payments he had made and intercepts of his tax returns.

The IDPA then prepared an updated calculation of the arrearage James allegedly owed, which it determined to be $1,639.05. This updated calculation was again based on a total amount due of $8,840, minus payments made of $7,200.95.

On January 14, 1998, James served the IDPA with a "Demand to Admit Facts" which, in pertinent part, asked the IDPA to admit the following: "That the petitioner is entitled to a claim against the respondent limited to the time Tammy Lawrence was on public aid, i.e. from 9/9/81 to 6/30/82 and 8/1/83 to 10/31/85 at the rate of $40.00 per week." On April 23, 1998, James filed a motion to strike the IDPA's response to the demand to admit facts on the ground that the IDPA did not timely file its response. The record does not contain a copy of the IDPA's response to the demand to admit facts or an order pertaining to the motion to strike.

At the trial court's request, the parties submitted briefs on the issue of whether Tammy's assignment of her right to collect child support covered the interim period from June 1982 to July 1983 when she did not receive public aid. On April 23, 1998, the trial court adopted the IDPA's position and ruled that Tammy's assignment of her right to collect child support covered the entire time period from September 9, 1981, through October 31, 1985, including the time when she did not receive public aid. Consequently, the court ordered judgment in the IDPA's favor of $1,639, to be paid in installments of $15 per week. James filed a motion to reconsider the order of April 23, 1998, which was denied.

James asserts that the trial court misinterpreted section 10--1 of the Illinois Public Aid Code. Ill. Rev. Stat. 1981, ch. 23, par. 10--1. In our view, the precise issue is whether, under section 10--1, Tammy assigned to the IDPA the right to collect arrearages that had accrued at the time of the assignment as well as support obligations that came due during the time she received public aid. This appears to be an issue of ...


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