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In re Marriage of Jorczak

August 29, 2000


Appeal from Circuit Court of Champaign County No. 85C1107 Honorable Harry E. Clem, Judge Presiding.

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

Petitioner Ann A. Jorczak, n/k/a Ann A. Wilder, appeals from the order of the trial court refusing to award her a child support arrearage and a claim for orthodontic expenses against respondent Rick E. Jorczak. We reverse as to the arrearage, affirm as to the orthodontic expenses, and remand for further proceedings.

The parties were married in November 1977. One child, Eve, was born of the marriage in May 1979. The parties agreed to dissolve their marriage in the fall of 1985 and entered into a marital settlement agreement dated October 31, 1985. Accordingly, the trial court entered a judgment of dissolution on December 17, 1985, said judgment incorporating the settlement agreement by reference. The settlement agreement provided that Rick pay Ann $300 per month in child support commencing on November 1, 1985, and continuing so long as Ann retained day-to-day custody of Eve. Ann apparently retained such custody at all pertinent times. Ann filed the instant action, claiming arrearage and deficiencies as to child support and orthodontic expenses, on May 11, 1998, eight days after Eve reached 19 years of age.

The parties presented conflicting evidence regarding child support payments. Ann's evidence consisted mainly of her testimony. She admits that Rick paid in accordance with the terms of the agreement for the months November 1985 through July 1986. Her petition originally claimed that the arrearage totaled $38,700, which is approximately the amount the arrearage would total had Rick paid nothing for the remainder of Eve's minority.

Rick, however, claimed that he continued to pay child support throughout, albeit not strictly according to the terms of the agreement. In response to Ann's discovery requests, he produced several canceled checks made payable mainly to Ann (with a few to Eve) and adduced these at trial. These checks total approximately $2,700. Perhaps not coincidentally, Ann admitted at trial that Rick had continued to pay sporadically but denied that he had paid more than a total of $3,000. Rick claims that he paid much more than this but that he has lost the pertinent documentation in the intervening time, owing to several changes of residence and other circumstances. He also claims that at some point he and Ann agreed that he would directly pay Eve $200 per month and pay approximately $100 per month for Eve's car insurance, in lieu of payments to Ann.

Finally, Ann asserts that a provision of the separation agreement mandated that Rick provide insurance covering the $3,750 cost of Eve's orthodontic treatment. Rick denies this construction.

The trial court did not award Ann anything either as to unpaid child support or orthodontic expenses. As to child support, the court's findings included the following:

"11. Respondent did not make the child support payments provided for in the [j]udgment of [d]issolution of [m]arriage;

12. Petitioner kept no records as to child support paid to her by [r]espondent after November 1, 1985;

13. Petitioner's testimony, based upon her recollection, that after the [r]espondent was discharged from the United States Navy in August 1986, he only made child support payments of $50 or $60, on an irregular basis, which totaled no more than $3,000, was impeached and contradicted;

14. Petitioner is required to prove, by competent evidence, not only that [r]espondent owes her unpaid child support but also the amount which he owes;

15. The dollar amount of any child support arrearage judgment entered based upon the evidence presented at the hearing on [p]petitioner's petition could only be based upon speculation, guess[,] and conjecture."

The court's finding in paragraph 11 that Rick did not fulfill his child support obligation under the settlement agreement appears to be inconsistent with its award of nothing to Ann on this claim. The difficulty may have arisen because the trial court erroneously allocated the burden of proof regarding the alleged arrearage. Which party will have the burden of proof regarding alleged arrearage of a child support obligation is a question of first impression in Illinois; indeed, the question has been infrequently litigated throughout the whole of our modern civil jurisprudence. Nonetheless, we conclude that when the trial court required Ann to prove the amount of the arrearage, it erred. The confusion may have arisen from the court's characterization of Ann's requested relief as "damages."

Strictly speaking, Ann is not an injured party seeking recompense for injury but, rather, an obligee seeking satisfaction of the obligation created by the judgment of dissolution, which incorporated the separation agreement by reference. Sections 3(j) and (k) of the Expedited Child Support Act of 1990 (750 ILCS ...

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