Appeal from Circuit Court of Champaign County No. 88C149 Honorable Michael Q. Jones, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
The trial court dissolved the marriage of petitioner, Linda S. Waller (n/k/a Sachs), and respondent, Dennis B. Waller, and awarded custody of their son, Joshua Waller, to petitioner. A modified order of support required respondent to pay child support until Joshua's eighteenth birthday, September 10, 2001. Joshua was not expected to graduate from high school, however, until May 31, 2002. On behalf of petitioner, the Illinois Department of Public Aid (Department) filed a motion to require respondent to continue paying child support until Joshua's expected date of graduation. Over respondent's objection, the trial court granted the motion. Respondent appeals, arguing that the trial court should have held an evidentiary hearing to consider the parties' current financial circumstances. We agree.
We hold that before extending the termination date of a support order to provide support for an 18-year-old until his or her graduation from high school, the trial court must comply with sections 510(a) and 513 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/510(a), 513 (West 2000)). By refusing to apply those statutory sections to the facts of the case, the trial court abused its discretion. Therefore, we reverse the judgment. Because it is clear, from the undisputed evidence, that respondent lacked the ability to pay child support after Joshua turned 18, an order requiring him to do so could never stand; we remand, however, for entry of an order fixing the amount of the arrearage.
The modified order of support, entered on March 19, 1997, required respondent to - 1 -pay $320 per month in child support "until September 10, 2001," as well as become current on the then-existing arrearage. On August 6, 2001, the Department filed its motion to extend child support. The Department alleged that although Joshua would attain the age of majority on September 10, 2001, his senior year in high school would not end until May 31, 2002. Attached to the motion was a letter, from the high-school principal, confirming Joshua's expected date of graduation. The Department prayed "[t]hat the [s]upport order continue through May 2002" and the trial court "enter a judgment" against respondent "for arrears."
On October 16, 2001, respondent filed a response to the motion to extend child support, admitting the allegations in the motion but adding that "he [was] unemployed at this time and unable to make extended payments." He prayed that the trial court deny the motion for that reason. On the same day, he filed a financial affidavit averring that he was 45 years old, unemployed, and without any source of income. Other than a car, which he valued at $500, he had no assets. His monthly living expenses totaled $1,074.
At respondent's request, or with his agreement, the trial court continued the hearing on the motion several times, until June 4, 2002. In the hearing and in a memorandum he filed before the hearing, respondent made a twofold argument: (1) under section 510(d) of the Dissolution Act (750 ILCS 5/510(d) (West 2000)), child support ended when the child turned 18; and (2) a trial court could award postmajority support only under section 513 of the Dissolution Act (750 ILCS 5/513 (West 2000)), which required a new proceeding in which the trial court considered the parties' current financial circumstances.
After hearing the arguments, the trial court disagreed with respondent. It explained, in a dialogue with his attorney:
"I respectfully disagree with the proposition that you can't order [s]section 505 child support after a child turns 18. I think I have the authority to modify the order, and I think that when the legislature says[,] [in section 505(g),] the termination date shall not be earlier than age 18[,] *** they could have said the termination date shall be no later than 18. They didn't say that. ***
The problem that I've got here is, being fair to [respondent], I just don't understand why this wasn't heard sooner. If[,] back in September or October of 2001[,] I would have said the [m]otion is allowed, then [respondent] knows *** he can file a motion to modify. [He could have said:] [']Hey, Judge, *** I don't like your ruling, but I hear you ordered me to pay child support. Now let me tell you about this change of circumstances since that order was entered. I've lost my job['--]or whatever. That's the problem that I [have] got.
I think I can continue[,] under [s]section 505[,] a child[-]support [obligation] past the [eighteenth] birthday without requiring a [hearing on a possible] change of circumstances *** or without implicating [s]section 513.
*** [I]t is not a [section] 510 modification to extend the termination date [rather than change the monthly amount of child support] ***. ***
[Section 505(g) says:] [']Nothing in this subsection shall be construed to prevent the court from ...