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The Department of Healthcare and Family Services ex rel. Nieto v. Arevalo

Court of Appeals of Illinois, Second District

December 19, 2016

THE DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES ex rel. NORA L. NIETO, Petitioner-Appellant,
v.
ALFREDO R. AREVALO, Respondent-Appellee.

         Appeal from the Circuit Court of McHenry County, No. 14-FA-230; the Hon. Christopher M. Harmon, Judge, presiding.

         Affirmed.

          Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Paul Racette, Assistant Attorney General, of counsel), for appellant.

          Elizabeth Felt Wakeman and Alex C. Wimmer, of Botto Gilbert Lancaster, P.C., of Crystal Lake, for appellee.

          Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion, Justice McLaren concurred in the judgment and opinion. Justice Schostok dissented, with opinion.

          OPINION

          ZENOFF, JUSTICE

         ¶ 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 I."

         ¶ 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 divorced.

         ¶ 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 Illinois.

         ¶ 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)[1] and whether this court would have jurisdiction [under the UIFSA[2] 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 Illinois Parentage Act of 1984 (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 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 novo).

         ¶ 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 (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, [3] 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 364.

         ¶ 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).[4] 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.[5]

         ¶ 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 ...


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