THE DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES ex rel. NORA L. NIETO, Petitioner-Appellant,
ALFREDO R. AREVALO, Respondent-Appellee.
from the Circuit Court of McHenry County. No. 14-FA-230
Honorable Christopher M. Harmon, Judge, Presiding.
Justice McLaren concurred in the judgment and opinion.
Justice Schostok dissented, with opinion.
1 Petitioner, the Illinois Department of Healthcare and
Family Services (Department), filed a petition in the circuit
court of McHenry County to establish a support order pursuant
to the Uniform Interstate Family Support Act (UIFSA) (750
ILCS 22/100 et seq. (West 2014)). The trial court
dismissed the action for lack of jurisdiction, and the
Department appealed. Initially, we affirmed the judgment of
the trial court, with Justice Schostok dissenting. The
Department filed a petition for rehearing, and we ordered
respondent, Alfredo R. Arevalo, to file a response. On
November 22, 2016, we granted the petition for rehearing. We
again affirm the trial court's judgment.
2 I. BACKGROUND
3 On August 18, 2014, the Department filed a "uniform
support petition" on behalf of Nora L. Nieto, a resident
of Mexico, alleging that respondent, a resident of Crystal
Lake, Illinois, owed support for their two minor children,
Navid and Jukari, also residents of Mexico.
4 The form petition, titled "Uniform Support Petition,
" and the appended documents are in Spanish with English
translations. Documentation accompanying the petition shows
that Nora and respondent were married in Mexico on October 3,
1996. The children's birth certificates are included in
the documentation and indicate that respondent is Navid and
Jukari's father. In addition, Nora furnished an
"affidavit in support of paternity." The petition
also alleged that there was no existing support order in
place and that respondent had not paid any support.
5 Respondent was personally served with process on August 28,
2014, and he filed an appearance on October 3, 2014. Pursuant
to court order, respondent filed a financial affidavit
prescribed by local rule. In the affidavit, he listed Navid
and Jukari as his children with Nora.
6 On January 14, 2015, respondent filed a
"two-count" motion to dismiss. "Count I"
was brought pursuant to section 2-619 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619 (West 2014)) and attacked
the petition on three grounds: (1) the petition failed to
specify the statutory section upon which it was based, in
violation of a local rule; (2) Nora's financial affidavit
was outdated, in violation of a local rule; and (3) no
petition for dissolution of marriage was pending and,
therefore, under section 505(a) of the Illinois Marriage and
Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a)
(West 2014)), no child support could be set. "Count
II" was brought pursuant to section 2-615 of the Code
(735 ILCS 5/2-615 (West 2014)) and alleged the identical
grounds for dismissal that were alleged in "count
7 In its response to the motion, the Department argued that
respondent was the noncustodial parent and owed child
support; the form petition used was prescribed by statute and
federal regulations and specified the relief sought; Nora
would shortly be filing an updated financial affidavit; and
the Marriage Act was irrelevant, as the UIFSA did not require
that a dissolution action be pending or that the parties be
8 In reply, respondent contended that there was no Mexican
court order to be enforced in Illinois; the UIFSA was not the
sole remedy; and the Illinois Public Aid Code (305 ILCS
5/10-1 (West 2014)) governed the issue of whether Nora could
receive "child support services" from the State of
9 On March 6, 2015, the Department filed Nora's updated
financial affidavit in compliance with the local rule. Nora
also alleged that respondent was currently living with a
woman in Crystal Lake, with whom he had two sons.
10 At a hearing on respondent's motion to dismiss on
March 6, 2015, the court sua sponte ordered the
parties to comment on "whether entering a child support
order in this case would result in a de facto
custody order pursuant to 750 ILCS 45/14(a)(2) and whether this
court would have jurisdiction [under the UIFSA to enter such an
order." The court's order was premised on its belief
that any support order would have to be entered pursuant to
section 14(a)(2) of the Parentage Act (750 ILCS 45/14(a)(2)
(West 2014)). Only the Department filed a memorandum in
accordance with the court's order, in which it argued
that the UIFSA allows a court to enter a support order when
no previous order has been entered and that such an order
does not result in a custody determination.
11 The court conducted a second hearing on April 10, 2015.
Respondent argued that a support order would require a
custody determination, which was beyond the court's
jurisdiction. The Department argued the points it raised in
its written memorandum. In its ruling, the court observed
that the Department was seeking an initial order of support
on behalf of a resident of Mexico. The court opined that it
would have to make a paternity determination as a
prerequisite to ordering support. The court further opined
that the presumption of paternity arising from the fact that
Nora and respondent were married when the children were born
was "only a presumption" and that the court
"would still be required to determine paternity"
before it could award Nora support. In the court's view,
a support order would result in a de facto custody
determination, which, according to the UIFSA, the court had
no jurisdiction to make. Consequently, the court dismissed
the petition. The Department filed a timely appeal.
12 II. ANALYSIS
13 The Department contends that the trial court's only
obligation was to review the financial information and set
child support using the appropriate Illinois guidelines. The
Department argues that the court erred in sua sponte
exploring issues of paternity and custody that were not in
dispute. Respondent contends that the court correctly relied
on the Illinois Parentage Act of 1984 (750 ILCS 45/14(a)(2)
(West 2014)) in dismissing the petition. These issues involve
the interpretation of the UIFSA, and our review is de
novo. See Collins v. Department of Health &
Family Services ex rel. Paczek, 2014 IL App (2d) 130536,
¶ 15 (statutory interpretation is reviewed de
14 While this appeal was pending, the legislature revised the
UIFSA (Pub. Act 99-119 (eff. Jan. 1, 2016) (amending 750 ILCS
22/100 et seq. (West 2014)) and the Marriage Act
(Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS 5/101
et seq. (West 2014)). The legislature also repealed
the Illinois Parentage Act of 1984 (750 ILCS 45/1 et
seq. (West 2014)), replacing it with the Illinois
Parentage Act of 2015 (hereinafter, Parentage Act) (Pub. Act
99-85 (eff. Jan. 1, 2016) (adding 750 ILCS 46/101 et
seq.)). With the exception of the changes to the
Marriage Act, we must decide this case under the law as it
now exists,  unless the present law affects the
parties' vested rights. McGinley v. Madigan, 366
Ill.App.3d 974, 981 (2006). Nevertheless, these changes have
not affected the issues advanced in this appeal. If there is
no retroactive impact, the amended law may be applied.
Commonwealth Edison Co. v. Will County Collector,
196 Ill.2d 27, 38 (2001).
15 The primary objective of statutory construction is to give
effect to the intent of the legislature. Collins,
2014 IL App (2d) 130536, ¶ 15. The plain language of the
statute is the best indicator of the legislature's
intent. In re Christopher K., 217 Ill.2d 348, 364
(2005). The court will examine the statute as a whole,
considering all of its relevant parts. Christopher
K., 217 Ill.2d at 364. Where the statute's language
is clear and unambiguous, we do not resort to extrinsic
construction aids. Christopher K., 217 Ill.2d at
16 The purpose of the UIFSA is to unify state laws governing
the establishment, enforcement, and modification of support
orders. Gowdey v. Gowdey, 825 So.2d 67, 69 (Miss.
Ct. App. 2002). Section 401(a)(1) of the UIFSA provides that
an Illinois court with personal jurisdiction over the parties
may issue a support order when the individual seeking the
order resides "outside this State." Pub. Act 99-119
(eff. Jan. 1, 2016) (amending 750 ILCS 22/401(a)(1) (West
2014)). "Outside this State" means "a location
in another state or a country other than the United
States." Pub. Act 99-119 (eff. Jan. 1, 2016) (amending
750 ILCS 22/102(18) (West 2014)). Section 401(c) provides
that the court shall issue a support order after finding that
the obligor owes a duty of support. Pub. Act 99-119 (eff.
Jan. 1, 2016) (amending 750 ILCS 22/401(c) (West 2014)).
17 An individual "petitioner" may initiate a
proceeding under the UIFSA by filing a petition in a tribunal
that has or can obtain personal jurisdiction over the
respondent. Pub. Act 99-119 (eff. Jan. 1, 2016) (amending 750
ILCS 22/301(b) (West 2014)). The forum court, known as the
"responding tribunal" (Pub. Act 99-119 (eff. Jan.
1, 2016) (amending 750 ILCS 22/102 (West 2014)), to the
extent not prohibited by other law, may establish a support
order. Pub. Act 99-119 (eff. Jan. 1, 2016) (amending 750 ILCS
22/305(b)(1) (West 2014)). In determining whether a duty of
support exists, the forum court shall apply the procedural
and substantive law of the forum state. 750 ILCS 22/303(1)
(West 2014). The UIFSA does not grant the court
authority to render a judgment relating to child custody.
Pub. Act 99-119 (eff. Jan. 1, 2016) (amending 750 ILCS
22/104(b)(2) (West 2014)).
18 Section 303(1) of the UIFSA provides that the court
"shall" apply the procedural and substantive law
"generally applicable to similar proceedings originating
in this State and may exercise all powers and provide all
remedies available in those proceedings." 750 ILCS
22/303(1) (West 2014). Section 303(2) requires the court to
"determine the duty of support and the amount payable in
accordance with the law and support guidelines of this
State." 750 ILCS 22/303(2) (West 2014). Section
305(b)(1) provides that the court, "to the extent not
prohibited by other law, " may, inter alia,
establish a support order. Pub. Act 99-119 (eff. Jan. 1,
2016) (amending 750 ILCS 22/305(b)(1) (West 2014)).
19 At oral argument, we asked the parties to expound on the
meaning of section 303 of the UIFSA. The Department responded
that it was unprepared to do so but that it would be willing
to address the question in supplemental briefing.
Consequently, we ordered supplemental briefing. The
Department contended that section 303 was not addressed by
the trial court and that we cannot address it sua
sponte. We find this response remarkable. The trial
court perforce applied section 303 when it looked to
Illinois's substantive law for a duty of support.
Furthermore, respondent's motion to dismiss challenged
the applicability of the UIFSA. The Department should not be
surprised that the construction of the UIFSA is at the heart
of this appeal.
20 Next, the Department asserted that we need address only
whether the court had jurisdiction. Presumably, because the
court dismissed Nora's petition for lack of
"jurisdiction, " the Department believes that this
is the sole issue in this appeal. To the contrary, it is but
a threshold issue on which we clarify that the court had
subject matter and personal jurisdiction. ¶ 21 The trial
court determined that it lacked jurisdiction, because section
104(b)(2) of the UIFSA states that the court is without
"jurisdiction" to render a judgment relating to
child custody. Pub. Act 99-119 (eff. Jan. 1, 2016) (amending
750 ILCS 22/104(b)(2) (West 2014)). As used in section
104(b)(2), "jurisdiction" means subject matter
jurisdiction. Subject matter jurisdiction is conferred
entirely by the Illinois Constitution, and it refers to the
power of a court to hear and decide cases of the general
class to which the proceeding at issue belongs. McCormick
v. Robertson, 2015 IL 118230, ¶ 19. There is no
question that circuit courts of this state have the power to
hear and determine issues pertaining to the UIFSA. Thus, the
trial court in the present case possessed subject matter
jurisdiction. There also is no question that respondent was
served with process and filed an appearance, conferring
personal jurisdiction on the court.
22 What the trial court lacks under the UIFSA is
authority to decide issues relating to child
custody. See In re Marriage of Edelman, 2015 IL App
(2d) 140847, ¶ 17 (discussing the difference between
subject matter jurisdiction and authority to act under the
UIFSA). ¶ 23 Having determined that the trial court had
jurisdiction, we turn to the issue of whether the court
correctly ruled that a duty of support must be found in
Illinois's substantive and procedural law. In our view,
because the UIFSA does not affect substantive rights, the
trial court properly looked to Illinois statutory law to
determine whether respondent owes a duty of support.
Department of Human Services v. Shelnut, 772 So.2d
1041, 1050 (Miss. 2000). Contrary to the Department's
position, the UIFSA does not itself create a duty of support.
Gowdey, 825 So.2d at 69.
24 A fundamental principle of statutory construction is to
view all provisions of a statute as a whole, interpreting
words and phrases in light of other relevant statutory
provisions. Edelman, 2015 IL App (2d) 140847, ¶
13. In violation of this principle, the Department asks us to
apply section 401(a)(1) of the UIFSA in isolation. Section
401(a)(1) provides that a court of this state "may"
issue a support order if the individual seeking the order
resides outside this state. Pub. Act 99-119 (eff. Jan. 1,
2016) (amending 750 ILCS 22/401(a)(1) (West 2014)). The
Department ignores subsection (c) of section 401, which
provides that the court shall issue a support order only
after it finds that an obligor owes a duty of support.
Pub. Act 99-119 (eff. Jan. 1, 2016) (amending 750 ILCS
22/401(c) (West 2014)). We thus must look to section 303 for
instruction on how to determine whether a duty of support
exists. Section 303 provides that courts determine whether a
duty of support exists by applying the substantive and
procedural law of the forum state. 750 ILCS 22/303 (West
25 The Department suggests that parents' common-law duty
to support their children furnishes the duty of support under
the UIFSA. Under the common law and prior to support
provisions in the earliest divorce statutes, circuit courts
had the power to order the father to pay child support.
Eckiss v. McVaigh, 261 Ill.App.3d 778, 783 (1994).
Women, postemancipation, were also held legally responsible
for the support of their children, equally with their
husbands. Eckiss, 261 Ill.App.3d at 785. In
Eckiss, the court held that the parents of a child
who had been removed from their custody owed a common-law
duty to support the child, including the payment of support
to the child's court-appointed guardians.
Eckiss, 261 Ill.App.3d at 785. The court observed
that no Illinois statute relieves parents of their common-law
duty to support their children. Eckiss, 261
Ill.App.3d at 785.
26 While there may be no statute that affirmatively states
that the common-law duty of support has been abolished, our
legislature has abolished common-law marriage. 750 ILCS 5/214
(West 2014). With the abolition of common-law marriage, it
follows that the legislature intended marriage and ancillary
issues, such as child support, to be wholly regulated by
statute. Indeed, where our supreme court has extended a
common-law duty of support in the absence of statutory
authority, it has done so with extreme circumspection.
27 In In re Parentage of M.J., 203 Ill.2d 526, 541
(2003), our supreme court held that the Illinois Parentage
Act (750 ILCS 40/1 et seq. (West 1998)),
specifically governing artificial insemination, does not
preclude child-support claims based on common-law theories of
oral contract and promissory estoppel in
artificial-insemination cases. The court emphasized that its
holding was "limited to the unique circumstances"
of that case. M.J., 203 Ill.2d at 542; see also In re
Marriage of Simmons, 355 Ill.App.3d 942, 952 (2005)
(M.J. held that action for support in artificial-insemination
cases can be brought under common-law theories of breach of
contract and promissory estoppel). The court in In re
T.P.S., 2012 IL App (5th) 120176, ¶ 49, also
recognized that the holding in M.J. was limited to
artificial-insemination cases. Therefore, the
Department's assertion that M.J. and Simmons
stand for the proposition that there is a blanket common-law
action for child support is erroneous. Moreover, to recognize
a common-law cause of action for child support risks opening
the floodgates to multitudinous lawsuits between married
spouses. What of the husband who gambles or drinks? Can his
wife sue him for increased support? What of the miserly
husband or wife? Can the offended spouse sue his or ...