Court of Appeals of Illinois, First District, Sixth Division
In re MARRIAGE OF CIPRIAN POPA, Petitioner-Appellee, and ADRIANA GARCIA, Respondent-Appellant.
Appeal from the Circuit Court of Cook County No. 06 D 11421 Honorable Lisa Murphy, Judge Presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.
LAMPKIN, PRESIDING JUSTICE
¶ 1 In 2009, respondent Adriana Garcia and petitioner Ciprian Popa received a divorce judgment, which provided, inter alia, that Popa pay Garcia, the custodial parent of their two minor children, monthly child support. In 2012, Garcia took the children to Uruguay, and Popa filed a motion to abate child support. The trial court denied Popa's motion to abate child support but ordered him to open a trust account for the benefit of the minor children, name himself as trustee, and pay all his child support into the trust account. The order also provided that neither Garcia nor Popa should make any withdrawals from that trust account without a court order authorizing such withdrawal.
¶ 2 In this discretionary interlocutory appeal concerning the care of minors, Garcia appeals the circuit court's order establishing the trust account. She argues that (1) Popa did not move the trial court to grant an appropriate order when he moved to abate child support under section 509 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/509 (West 2012)); and (2) the trial court's order establishing the trust account is improper because it constitutes an order suspending child support payments despite clear, legal precedent that child support payments cannot be linked to a custodial parent's violation of visitation terms.
¶ 3 We affirm the judgment of the circuit court. We hold that the circuit court did not exceed its authority and did not abuse its discretion by establishing a trust for the benefit of the minor children of a dissolved marriage to enforce Popa's child support obligation. The evidence indicated that the establishment of the trust was necessary to protect and promote the best interests of the children and Popa was unwilling to make support payments after Garcia removed the children from the country over six months ago in violation of the parties' custody order.
¶ 4 I. BACKGROUND
¶ 5 Popa and Garcia were married in 2002 and in October 2005 had twins–a daughter and a son. Popa and Garcia were divorced by a judgment entered in October 2009. Among other things, that judgment required Popa to pay child support to Garcia in the amount of $2, 800 per month. That amount was based on their daughter's special needs and the fact that Garcia was unemployed in order to care for their daughter.
¶ 6 On June 13, 2012, Popa filed a pro se petition to modify child support, alleging that he lost his work contract on June 1, 2012, and suffered a considerable decrease in income.
¶ 7 On or about August 10, 2012, Garcia took the children to Uruguay and remained there with them until about September 5, 2012, when she and the children returned to Chicago. About October 16, 2012, Garcia took the children back to Uruguay and has remained there with them.
¶ 8 On October 22, 2012, the court entered an order that Garcia and the children return from Uruguay to Chicago.
¶ 9 In January 2013, Popa, through counsel, moved the court to abate his child support obligation for as long as Garcia remained outside the court's jurisdiction. Popa argued that his child support payments helped make it possible for Garcia to take the children to Uruguay and remain there in violation of court orders.
¶ 10 In response, counsel for Garcia asserted that Garcia's travel to Uruguay complied with the parties' custody order, which allowed her to travel to Uruguay to visit family at least twice per year and provided her with three consecutive weeks of summer vacation with the children to engage in any international travel. Garcia also asserted that, because she went to Uruguay on October 16, 2002, before the court entered its October 22, 2012 order, her travel did not violate any court order. She alleged that Popa had stopped paying child support in July 2012 and never served her with his June 2012 pro se petition to modify support. She claimed that the child support barely covered the children's basic needs, and her family in Uruguay purchased the tickets for her and her children to travel due to a severe medical emergency. In addition, she asserted that her family in Uruguay has provided shelter, food and all of the children's needs ever since Popa's July 2012 failure to comply with child support. She also asserted that she did not interfere with Popa's visitation in September 2012; rather, he voluntarily missed visitation with his children due to his wedding and international travel for his honeymoon. Furthermore, when Popa returned to Chicago, he had visitation with their daughter on October 2, 2012, from 5 p.m. to 7 p.m. at a public library. Garcia asked the court to deny Popa's motion to abate child support, enforce the 2009 child support order, and order Popa to pay all past-due child support payments, interest, fees and applicable penalties.
¶ 11 On February 14, 2013, the trial court held a hearing on Popa's motion to abate child support. Garcia was not present. Popa asked that child support be abated until the children were returned because it was inequitable and inappropriate for him to continue funding Garcia's ongoing violation of the court's orders and ongoing abduction of the children. Citing Cooper v. Cooper, 59 Ill.App.3d 457 (1978), Popa argued the court should consider his unique petition, which was prompted by more than Garcia's alleged interference with visitation, and conclude that, in this extreme situation, it would be appropriate to suspend child support as a response to Garcia's refusal to comply with court orders to return the ...