Gill v. Gill

• Decision Date: 30 November 1973
• Docket Number: No. 45593,45593
• Citation: 56 Ill.2d 139,306 N.E.2d 281
• Parties: , 91 A.L.R.3d 520 Marilyn GILL, Appellee, v. Robert GILL, Appellant.
• Court: Illinois Supreme Court

Page 281

306 N.E.2d 281

56 Ill.2d 139, 91 A.L.R.3d 520

Marilyn GILL, Appellee, v. Robert GILL, Appellant.

No. 45593.

Supreme Court of Illinois.

Nov. 30, 1973.

Rehearing Denied Jan. 29, 1974.

Belkind & Polikoff and Bochte, Camodeca & Timpone, Chicago, for appellant.

Gomberg, Missner & Schaps, Chicago, for appellee.

WARD, Justice:

The question presented on this appeal is whether it was proper for the trial court to direct the father of a child to reimburse the mother for moneys expended after their divorce for their child's support during his infancy.

The circuit court of Cook County entered such an order in favor of the plaintiff, Marilyn Gill, against her former husband, Robert Gill, and the appellate court affirmed (8 Ill.App.3d 625, 290 N.E.2d 897). We granted the defendant's petition for leave to appeal.

Marilyn and Robert Gill were married on April 10, 1948. One child, Richard Michael, was born of the marriage. On June 28, 1956, after a suit for divorce was brought by Marilyn Gill and Robert Gill was served by publication, a decree of divorce was entered in favor of the plaintiff on grounds of physical cruelty and desertion. The decree awarded custody of Richard, who was then five years old, to his mother and reserved the question of child support, alimony and attorney's fees.

On May 27, 1971, the plaintiff obtained personal service of the original complaint and summons in the divorce action upon the defendant and served him on June 3 with a copy of her petition to be reimbursed for expenditures for the support of their child from June 28, 1956, through June 1971.

Mrs. Gill testified at the hearing held in July 1971 that she had provided the sole support for their son from prior to June 28, 1956, to June 28, 1969, when he graduated from high school and became employed. She said that it had cost approximately $25 per week to provide his support during the 13-year period. She testified that she did not have any knowledge of her husband's whereabouts from the time of his desertion of her until he communicated with their son in May of 1971 and apparently told the son where he was living.

At the conclusion of the hearing the trial court granted the petition and ordered the defendant to pay Mrs. Gill $13,500 as reimbursement for moneys spent for the child's support and $500 in legal fees. The amount of reimbursement was determined on the basis of allowing the plaintiff $20 per week for the 13-year period, commencing on June 28, 1956, and ending on June 28, 1969.

There is no substance to the defendant's argument on appeal that the order to reimburse was a Nunc pro tunc order and therefore invalid. Seemingly he claims that the order relates back to the time the divorce decree was entered and because, he says, he was not personally served at that time the court had no jurisdiction over him and could not enter the order to reimburse.

The function of a Nunc pro tunc order is 'to supply some omission in the record of an order which was really made but omitted from the record.' (People v. Rosenwald, 266 Ill. 548, 554, 107 N.E. 854, 856.) It is clear that in the original proceeding there was no order 'really made' relative to the obligation to provide child support. That question was expressly reserved in the divorce decree. The order to reimburse was not entered to correct an order made but omitted from the original decree.

The defendant next contends that the trial court's order directing him to pay, retroactively, support for the child is void. He argues that under section 18 of the Divorce Act (Ill.Rev.Stat.1969, ch. 40, par. 19) a court has authority only to award support prospectively from the date it acquires jurisdiction to the point in time when the child becomes emancipated. Putting the same contention in different form, he says that the court had no authority to order support for any period of time prior to the claimant's obtaining In personam jurisdiction over the defendant.

The language of section 19 clearly does not favor the interpretation the defendant would give it. The section states: 'Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for (the) * * * support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just * * *.'

The section does not restrict the court as to when it may order payment for child support. '(The) court * * * may at any time after the entry of a decree, for divorce upon obtaining jurisdiction * * * make such order for * * * support.' Neither is the balance of the section's language restrictive; it confers a completely broad discretion and authority on the court as to the character of the support order it can enter. The court is empowered by it to 'make such order for the * * * support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just * * *.' We consider that the statute's language clearly conferred on the trial court the authority to enter the order. The interpretation sought by the defendant would be patently unreasonable. It would encourage those charged with an obligation to support children to abscond so as to avoid personal service and thereby evade their legal obligation.

Apart from the statute, the trial court, under our case law, had authority to enter the order for reimbursement.

As early as 1868 this court in Plaster v. Plaster, 47 Ill. 290, 293, held that a divorced wife had a right to reimbursement from her former husband for support given their minor child. The wife in Plaster had been given an award for alimony in gross and given custody of the child, but no provision had been made for this support. This court held that the trial court erred in dismissing the mother's petition, filed 12 years after the decree of divorce, for reimbursement and for future child-support payments. It was said: '* * * defendant in error was * * * liable for reasonable compensation for his (the child's) past support as well as that in the future.'

In Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659, a wife, after service on her husband by publication, secured a decree of divorce. No award was entered for alimony or child support. When the husband, who had been out of State, returned to Illinois the court obtained In personam jurisdiction over him and ordered him to pay Inter alia, child support. This court held (317 Ill. at 110, 147 N.E. at 661) the order was proper, saying: 'The obligation of the father to support his children begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. (Citation.) His children are of his blood. It is not their fault that their parents have been divorced.' (See also Leland v. Brower, 28 Ill.2d 598, 600, 192 N.E.2d 831; Miles v. Miles, 20 Ill.App.2d 375, 156 N.E.2d 371; Parkinson v. Parkinson, 119 Ill.App. 112; Johnson v. Johnson, 239 Ill.App. 417; Boyle v. Boyle, 247 Ill.App. 554; People ex rel. Hartshorn v. Hartshorn, 21 Ill.App.2d 91, 157 N.E.2d 563; Loss v. Loss, 80 Ill.App.2d 376, 380--382, 224 N.E.2d 271.) These decisions conform to the view held in the majority of jurisdictions that when a divorce decree provides for the custody of a child but is silent as to the question of child support, a mother may maintain an action against her former husband for moneys expended by her after the decree to support the child. See 69 A.L.R. 203, 209.

The defendant's next contention of error is that the plaintiff should have been barred by the doctrine of Laches from obtaining a judgment for reimbursement.

This court in Pyle v. Ferrell, 12 Ill.2d 547, 552, 147 N.E.2d 341, 344, described the doctrine: 'Laches, or the doctrine of stale demand, as it is sometimes termed, is a defense peculiar to equity which is bottomed on the reluctance to aid one who has knowingly slept upon his rights and acquiesced for a great length of time (citation), and its existence depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did.' The court went on to add that the doctrine is invocable by a defendant only when there is: '(1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant's rights, the complainant having had notice or knowledge of defendant's conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.' 12 Ill.2d 547, 553, 147 N.E.2d 341, 344.

Mrs. Gill testified that her former husband deserted her in 1956 and that she did not learn where he could be located until he communicated with Richard in May of 1971. She promptly took steps to obtain personal service upon the defendant and served notice that she was filing the petition concerned in this appeal. This testimony by the plaintiff was not disputed. The defendant's claim of Laches is founded solely on a portion of the cross-examination of the plaintiff. Though the record on the cross-examination is not completely clear it appears that the plaintiff conceded that the defendant's mother had come from California and visted her and Richard approximately two years after the divorce. Also, about that time the plaintiff spoke to the defendant once on the telephone, though there is...