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In re Marriage of Ross

Court of Appeals of Illinois, Second District

February 11, 2015

In re MARRIAGE OF JAMES S. ROSS (Deceased), Petitioner, and ANITA ROSS PRUITT, Respondent and Petitioner-Appellee and Cross-Appellant (Holly Ross, Executor of the Estate of James S. Ross, Respondent-Appellant and Cross-Appellee)

Modified Upon Denial of Rehearing April 2, 2015.

Appeal from the Circuit Court of Du Page County. No. 85-MR-111. Rodney W. Equi, Judge, Presiding.

SYLLABUS

The respondent's petition seeking to recover the child support arrearage due her from decedent was untimely under section 18-12(b) of the Probate Act and section 510(e) of the Marriage and Dissolution of Marriage Act; therefore, the trial court's grant of respondent's motion to reconsider its dismissal of her petition was reversed and the cause was remanded to the trial court with directions to enter a dismissal of the petition with prejudice.

Ramsey Senno, of Law Office of Anthony Abear, P.C., of Wheaton, for appellant.

Michael A. Cotteleer, of Law Office of Michael A. Cotteleer, of Galena, for appellee.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

OPINION

BIRKETT, JUSTICE.

[¶1] Holly Ross, executor of the estate of James S. Ross (James, but collectively with Holly, the Estate), appeals from the trial court's judgment in favor of Anita Ross Pruitt (Anita) on Anita's petition for child support that James was ordered to pay Anita in the 1983 decree dissolving their marriage. We agree with the Estate that Anita's petition to collect the child support arrearage was untimely under section 18-12(b)

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of the Probate Act of 1975 (755 ILCS 5/18-12(b) (West 2012)). Therefore, we reverse the trial court's judgment.

[¶2] I. BACKGROUND

[¶3] James and Anita were married in 1968 in Oak Park, Illinois. The marriage produced three children, with the youngest born in 1972. In 1982, James filed for dissolution of the marriage in Cook County circuit court case number 82-D-24518. In May 1983, a judgment of dissolution was entered in that case. Anita was awarded physical custody of the children, and James was ordered to pay her $300 monthly in child support. In 1985, on Anita's petition, the dissolution judgment was registered in Du Page County circuit court case number 85-MR-111.

[¶4] In May 2008, James died from injuries suffered in a workplace accident. In April 2012, Anita filed in case number 85-MR-111 a " petition for confirmation of lien, sale of real estate, and entry of a qualified domestic relations order." She alleged child support arrearages of $7,770 and $14,687.34, respectively, in case numbers 82-D-24518 and 85-MR-111. Adding statutory interest, Anita alleged a total arrearage of $65,976.46. Anita claimed that there was an existing lien in that amount against the assets of the Estate by operation of section 505(d) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(d) (West 2012) (" [A] lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue [child] support owed by the noncustodial parent." )). Those assets included real estate that James had owned in Elmhurst and a pension that he had earned from Iron Workers Mid-America. Anita sought an order directing the sale of the real estate and applying the proceeds to the support arrearage. She also sought a qualified domestic relations order (QDRO) applying James's pension to the arrearage.

[¶5] The Estate responded by filing a nine-count motion to strike and dismiss Anita's petition. Count II of the motion asserted that Anita's petition was in the " wrong venue." Specifically, the Estate claimed that, because James was deceased and his and Anita's youngest child was long since emancipated, Anita should have brought her action in probate court rather than domestic relations court.

[¶6] Following a hearing on the motion to strike and dismiss, the trial court agreed with the Estate that the court had no jurisdiction because the divorce action abated upon James's death. The court denied the motion to strike and dismiss except as to count II. On that count, the court entered a dismissal but stayed it " for 60 days, pending the filing of a new action to foreclose any lien claimed by [Anita]."

[¶7] Anita filed a motion to reconsider, citing case law to the effect that a party's death prior to entry of the final decree of divorce will abate the divorce proceeding, but that if the death occurs subsequent to the final decree there is no abatement. See, e.g., Fox v. Coyne, 25 Ill.App.2d 352, 360, 166 N.E.2d 474 (1960).

[¶8] In its response to the motion to reconsider, the Estate cited section 510(e) of the Marriage Act (750 ILCS 5/510(e) (West 2012)), which states that " [t]he right to petition for support or educational expenses, or both, under Sections 505 [(750 ILCS 5/505 (West 2012))] and 513 [(750 ILCS 5/513 (West 2012))] is not extinguished by the death of a parent," but that " a claim *** against the estate of a decedent" for support or educational expenses is time-limited " by the provisions of the Probate Act of 1975 [(Probate Act) (755 ILCS 5/1-1 et seq. (West 2012))], as a

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barrable, noncontingent claim." The Estate contended that Anita's claim was time-barred under section 18-12(b) of the Probate Act (755 ILCS 5/18-12(b) (West 2012)), which imposes an outer limit of two years for claims against a decedent's estate.

[¶9] The motion to reconsider proceeded to hearing. In taking the matter under advisement, the court noted that its initial impression was that section 510(e) applied to new claims for child support, not attempts to ...


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