Illinois Dept. of Healthcare v. Wiszowaty

• Citation: 913 N.E.2d 680
• Decision Date: 14 August 2009
• Docket Number: No. 1-08-1080.,1-08-1080.
• Parties: ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES ex rel. Margaret WISZOWATY, n/k/a Margaret Mihaila, Petitioner-Appellant, v. Mark WISZOWATY, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

913 N.E.2d 680

ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES ex rel. Margaret WISZOWATY, n/k/a Margaret Mihaila, Petitioner-Appellant, v. Mark WISZOWATY, Respondent-Appellee.

No. 1-08-1080.

Appellate Court of Illinois, First District, Sixth Division.

August 14, 2009.

Lisa Madigan, Atty. Gen., Michael A. Scodro, Solicitor Gen., and Jan E. Hughes, Asst. Atty. Gen., Chicago, IL, for Petitioner-Appellant.

Justice McBRIDE delivered the opinion of the court:

The primary issue on appeal is whether simple interest on past-due child support payments became mandatory as early as May 1, 1987, the effective date of certain amendments to section 12-109 of the Code of Civil Procedure (735 ILCS 5/12-109 (West 2006)) (hereinafter Code) and section 505 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505 (West 2006)) (hereinafter Act). The appellant contends that when read in combination, these amendments reveal that the First District's opinion in In re Marriage of Steinberg, 302 Ill.App.3d 845, 236 Ill.Dec. 21, 706 N.E.2d 895 (1998) was wrongly decided and that the Fourth District's opinion in Burwell v. Burwell, 324 Ill.App.3d 206, 257 Ill.Dec. 633, 753 N.E.2d 1259 (2001), is a correct statement of the 1987 law. It is undisputed that interest on late child support was mandatory as of January 1, 2000, the effective date of an additional amendment to section 505 of the Act. 750 ILCS 5/505 (West 2000).

Because this issue concerns undisputed facts and a question of law, we address it de novo, without any deference to the circuit court's conclusions. In re Marriage of Kaufman, 299 Ill.App.3d 508, 509, 233 Ill. Dec. 543, 701 N.E.2d 186, 187 (1998).

Appellee Mark Wiszowaty and Margaret Mahaila were married to each other for about three years during their early twenties. They divorced in 1991, shortly before their only child's second birthday. Pursuant to a settlement agreement, a divorce judgment order was entered which required Mark to pay $48 in child support per week, by tendering payments to the clerk of the circuit court of Cook County, until the child's eighteenth birthday in 2007. Mark complied with the order for less than six months, although he purportedly paid Margaret directly until 1993. In 2005, appellant Illinois Department of Healthcare and Family Services filed a petition to intervene in the case and a petition for rule to show cause as to why Mark should not be held in contempt of court. The Department sought $36,336 in unpaid support and $23,571 in mandatory and discretionary interest. The Department subsequently revised the total amount it was seeking to approximately $64,000. Mark conceded the arrearage and that interest became mandatory when section 505(d) of the Act was amended effective January 1, 2000 (750 ILCS 5/505(d) (2000)), but argued the circumstances did not warrant discretionary interest prior to that date. The Department countered that the 2000 legislation was a clarification of the law and that interest became mandatory on May 1, 1987, pursuant to section 12-109 of the Code—which was well before the couple divorced in 1991 and well before Mark began ignoring the circuit court's judgment order. 735 ILCS 5/12-109 (West 2006). In essence, the Department was seeking $10,000 more than Mark was willing to concede. After testimony and arguments, the circuit court found Mark's position persuasive, awarded interest after 2000 as mandated by statute, and rejected the Department's request for discretionary interest prior to 2000. By agreement, a judgment of $52,889 was entered against Mark which is to be satisfied at the rate of $1,000 per month beginning April 1, 2008. This appeal followed.

Mark did not file a brief in support of the circuit court's order. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493, 495 (1976), the supreme court indicated that when a record on appeal is simple, the claimed error is simple, and a reviewing court can easily decide the issues without the benefit of the appellee's brief, the reviewing court should proceed to the merits of the appeal. Because this appeal fits within those parameters, we address the merits of the Department's arguments.

There are numerous opinions indicating dissolution proceedings are an exception to mandatory interest statutes. Many of these rulings stem from Finley v. Finley, 81 Ill.2d 317, 43 Ill.Dec. 12, 410 N.E.2d 12 (1980), in which the supreme court held that the imposition of interest on child support judgments is a matter within the trial court's discretion. Finley involved a father of four who had unilaterally decreased the amount of his support payments by 25% as each child became emancipated. Finley, 81 Ill.2d at 321, 43 Ill. Dec. 12, 410 N.E.2d at 14. The circuit court found that a parent needs leave of court to reduce his or her child support payments, and entered judgment on the arrearage. Finley, 81 Ill.2d at 331, 43 Ill.Dec. 12, 410 N.E.2d at 19. The court also awarded interest which on appeal the father argued was an abuse of discretion and the mother argued was mandatory pursuant to section 3 of the Interest Act. Finley, 81 Ill.2d at 331, 43 Ill.Dec. 12, 410 N.E.2d at 19, citing Ill.Rev.Stat.1977, ch. 74, par. 3. When the supreme court considered Finley in 1980, there was no statute which specifically addressed interest on past-due child support payments, but there were two general statutes about interest on money judgments. Section 3 of the Interest Act, which the mother relied upon (Finley, 81 Ill.2d at 331, 43 Ill.Dec. 12, 410 N.E.2d at 19), provided that "[j]udgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the judgment until satisfied[.]" Ill.Rev.Stat.1977, ch. 74, par. 3. (While Finley was pending, the interest rate was changed from 8% to 9%. Pub. Act 81-874 § 1, eff. January 1, 1980.) Section 7 of the Judgment Act, which was not specifically addressed in Finley, similarly stated "[e]very execution issued upon a judgment shall bear interest thereon, from the date of the recovery of the judgment until the same is paid, at the rate of 8% per annum." Ill.Rev.Stat.1979, ch. 77, par. 7.

The supreme court acknowledged that each party's position was supported by a line of appellate court authority, but the court did not discuss the conflicting lines of precedent or parse the statutory language. Finley, 81 Ill.2d at 331, 43 Ill.Dec. 12, 410 N.E.2d at 19. Instead, the court turned to one of its own prior opinions indicating that a divorce proceeding (a statute-based action)¹ is similar in nature to a chancery proceeding, and thus subject to the same equitable principles. Finley, 81 Ill.2d at 332, 43 Ill.Dec. 12, 410 N.E.2d at 19. A judge presiding over an action based in equity has discretion to award or deny interest. Finley, 81 Ill.2d at 332, 43 Ill.Dec. 12, 410 N.E.2d at 19. The supreme court found that, therefore, interest on past-due child support installments was also a matter of judicial discretion. Finley, 81 Ill.2d at 332, 43 Ill.Dec. 12, 410 N.E.2d at 19. In effect, the supreme court held that divorce actions are exempt from general interest provisions.

Although the supreme court had plainly concluded that dissolution judgments were different from other money judgments, Finley's filing in 1980 did not provoke a response from the Illinois legislature. When the Code of Civil Procedure took effect on July 1, 1982 (Pub. Act 82-280, eff. July 1, 1982), section 3 of the Interest Act was transferred to section 2-1303 of the Code and section 7 of the Judgment Act would become known as section 12-109 of the Code. 735 ILCS 5/2-1303 (West 1998) ("[j]udgments recovered before any court shall draw interest"); 735 ILCS 5/12-109 (West 1998) ("[e]very * * * judgment shall bear interest thereon"). The General Assembly had an additional opportunity to correct any judicial misconstruction of the law when it enacted Public Act 83-707, which had an effective date of September 23, 1983. Pub. Act 83-707 § 1, eff. September 23, 1983 (amending Ill. Rev. Stat 1981, ch. 110, par. 2-1303). Pursuant to this legislation, the first phrase in section 2-1303, "Judgments recovered before any court shall draw interest" was changed to "Judgments recovered in any court shall draw interest." (Emphasis added.) Pub. Act 83-707 § 1, eff. September 23, 1983. In 1984, the General Assembly did away with the apparent duplication of the two statutes by amending section 12-109 of the Code to simply incorporate section 2-1303 of the Act. Burwell, 324 Ill.App.3d at 211, 257 Ill.Dec. 633, 753 N.E.2d at 1260 (Cook, J., dissenting) (explaining the source of the apparent duplication in statutes). After the 1984 amendment, section 12-109 of the Code simply read: "Every judgment shall bear interest thereon as provided in Section 2-1303." Ill.Rev.Stat.1985, ch. 110, par. 12-109. This lack of substantive and relevant change to the law is significant because the General Assembly is presumed to know how its laws are being construed in the courts.

"It is a well-established principle of statutory construction that `where terms used in [a] statute have acquired a settled meaning through judicial construction and are retained in subsequent amendments or re-enactments of the statute, they are to be understood and interpreted in the same sense theretofore attributed to them by the court unless a contrary intention of the legislature is made clear.' [Citations.] This rule is based upon the view that `the judicial construction [of a statute] becomes a part of the law, and it is presumed that the legislature in passing the law knew [of] such construction of the words in the prior enactment.' [Citation.]

A related principle of statutory construction is that `[w]here the legislature chooses not to amend a statute after a judicial construction, it will be presumed that it has acquiesced in the court's statement of the legislative intent.'" [Citations.]...