Dep't of Healthcare & Family Servs. ex rel. Nieto v. Arevalo

Decision Date19 December 2016
Docket NumberNo. 2-15-0504,2-15-0504
Citation2016 IL App (2d) 150504,68 N.E.3d 552
Parties The DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES ex rel. Nora L. Nieto, Petitioner-Appellant, v. Alfredo R. AREVALO, Respondent-Appellee.
CourtUnited States Appellate Court of Illinois

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.


JUSTICE ZENOFF delivered the judgment of the court, 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.


¶ 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 UIFSA2 ] 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.


¶ 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, 394 Ill.Dec. 522, 36 N.E.3d 813 (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 (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,3 unless the present law affects the parties' vested rights. McGinley v. Madigan , 366 Ill.App.3d 974, 981, 303 Ill.Dec. 522, 851 N.E.2d 709 (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, 255 Ill.Dec. 482, 749 N.E.2d 964 (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, 394 Ill.Dec. 522, 36 N.E.3d 813. The plain language of the statute is the best indicator of the legislature's intent. In re Christopher K. , 217 Ill.2d 348, 364, 299 Ill.Dec. 213, 841 N.E.2d 945 (2005). The court will examine the statute as a whole, considering all of its relevant parts. Christopher K. , 217 Ill.2d at 364, 299 Ill.Dec. 213, 841 N.E.2d 945. Where the statute's language is clear and unambiguous, we do not resort to extrinsic construction aids. Christopher K. , 217 Ill.2d at 364, 299 Ill.Dec. 213, 841 N.E.2d 945.

¶ 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...

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