In re Marriage of Mitchell

• Decision Date: 02 March 2001
• Docket Number: No. 2-00-0005.,2-00-0005.
• Citation: 253 Ill.Dec. 393,319 Ill. App.3d 17,745 N.E.2d 167
• Parties: In re MARRIAGE OF Elena M. MITCHELL, n/k/a Elena M. Bloomingdale, Petitioner-Appellant, and Kevin R. Mitchell, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

745 N.E.2d 167

319 Ill. App.3d 17

253 Ill.Dec. 393

In re MARRIAGE OF Elena M. MITCHELL, n/k/a Elena M. Bloomingdale, Petitioner-Appellant, and

Kevin R. Mitchell, Respondent-Appellee.

No. 2-00-0005.

Appellate Court of Illinois, Second District.

March 2, 2001.

K.O. Johnson, Law Office of K.O. Johnson, DeKalb, for Elena M. Mitchell.

Nancy Palmer-Alamia, DeKalb, for Kevin R. Mitchell.

Justice RAPP delivered the opinion of the court:

Petitioner, Elena M. Mitchell, now known as Elena M. Bloomingdale, appeals the circuit court's order dissolving her marriage to respondent, Kevin R. Mitchell. Petitioner contends that the court erred by (1) refusing to award her the full amount of child support arrearages respondent allegedly owed; and (2) refusing to order respondent to exercise his visitation with the parties' children.

This was the second time the parties were married to each other. In April 1991, the circuit court of Ogle County dissolved their first marriage. The decree awarded custody of the parties' two children to petitioner and ordered respondent to pay $73 per week as child support.

On February 14, 1992, the parties remarried each other. They apparently separated in May 1994. In 1999, petitioner sought to dissolve the second marriage. The parties agreed to transfer the Ogle County case to De Kalb County and consolidate it with this case. The court again awarded custody of the children to petitioner and ordered respondent to pay $96.60 per week as child support.

Petitioner claimed a child support arrearage of more than $20,000. This figure included allegedly overdue payments pursuant to the Ogle County decree of $73 per week until March 16, 1999, and $96.60 per week after that date. The court found an arrearage of $4,864.60. This amount included payments pursuant to the Ogle County decree until the parties' remarriage on February 14, 1992, as well as past-due payments under the current decree.

The court denied petitioner's motion to require respondent to exercise his visitation with the children. Instead, the court ordered respondent to pay for day-care costs when he did not exercise visitation. Petitioner filed a timely notice of appeal.

Petitioner first contends that the trial court erred in finding that child support did not continue to accrue pursuant to the Ogle County decree during the parties' second marriage. Petitioner points out that child support payments become a vested right of the receiving spouse as they become due and a court cannot modify them retroactively. Thus, because no petition to modify child support was ever filed, the payments pursuant to the Ogle County decree continued to accrue. Petitioner further maintains that the public policy of assuring that children of divorced parents are provided with adequate support is so strong that even the parties' remarriage to each other should not be able to terminate the respondent's support obligation.

We note that respondent has not filed a brief in this court. However, we will consider the merits of the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493 (1976).

Preliminarily, we note that the trial court awarded petitioner an arrearage for child support payments that accrued prior to February 14, 1992, the date of the parties' remarriage. Respondent has not filed a cross-appeal to contest this ruling. Moreover, petitioner does not dispute the amount of the arrearage. Also, the parties do not question the propriety of combining the arrearages due from the first dissolution action and the temporary support order entered in this case and awarding both in a single order. Thus, we do not consider these issues.

It appears that the precise issue petitioner raises—whether child support ordered by a dissolution decree continues to accrue after the parties remarry each other—is one of first impression in Illinois. In Davis v. Davis, 68 Cal.2d 290, 437 P.2d 502, 66 Cal.Rptr. 14 (1968), the California Supreme Court rejected this contention, holding that the wife could not enforce the child support provisions of a prior divorce decree as to payments that accrued after the parties remarried each other. Davis, 68 Cal.2d at 291, 437 P.2d at 502-03, 66 Cal.Rptr. at 16. The court noted that this holding was consistent with the goal of reestablishing the family unit for the benefit of both the parties and the children. Davis, 68 Cal.2d at 293, 437 P.2d at 504, 66 Cal.Rptr. at 16; see also Griffis v. Griffis, 202 W.Va. 203, 215, 503 S.E.2d 516, 521 (1998) (parties' remarriage automatically terminated future child support installments but did not nullify arrearage for payments past due at time of remarriage).

Petitioner does not cite Davis or Griffis, but argues that the trend of recent cases is to reject the conclusion that a prior divorce or dissolution decree becomes unenforceable after the parties to it remarry each other. To resolve this issue, we must examine those cases in some detail.

In Ringstrom v. Ringstrom, 101 Ill. App.3d 677, 57 Ill.Dec. 193, 428 N.E.2d 743 (1981), the Fourth District reiterated the well-established principle that when divorced parties remarry each other the prior decree is void. Ringstrom, 101 Ill. App.3d at 679, 57 Ill.Dec. 193, 428 N.E.2d 743. The court went on to hold that, upon their remarriage, the parties are restored to their rights as if they had never been divorced. Ringstrom, 101 Ill.App.3d at 680-81, 57 Ill.Dec. 193, 428 N.E.2d 743. As a result, the wife could not collect even support payments that had become due prior to the remarriage. Ringstrom, 101 Ill.App.3d at 679, 57 Ill.Dec. 193, 428 N.E.2d 743.

In re Marriage of Parks, 258 Ill.App.3d 479, 196 Ill.Dec. 574, 630 N.E.2d 509 (1994), the court attempted to clarify Ringstrom`s holding. The specific issue there was the husband's obligation pursuant to the first decree to pay the wife $5,000 as maintenance in gross. The court stated that a careful reading of Ringstrom revealed the holding to be that the prior decree is not "void," but merely unenforceable. Parks,258 Ill.App.3d at 482,196 Ill.Dec. 574,630 N.E.2d 509. The court noted that most of the earlier reported cases involved issues of child custody and support and deemed it "sensible that the remarriage of parties to a divorce nullif[ies] the prior divorce decree with respect to child custody and child support." Parks,258 Ill.App.3d at 483,196 Ill.Dec. 574,630 N.E.2d 509. The court explained that in the case of child support, "upon the remarriage of the parties, they are restored to their rights and obligations as if never divorced, and there is no further obligation to pay child support under the divorce decree." Parks,258 Ill.App.3d at 483,196 Ill.Dec. 574,630 N.E.2d 509.

Parks held that issues involving maintenance and property rights were different and, as to those issues, the parties' subsequent remarriage merely rendered unenforceable the prior decree. Thus, "with respect to provisions of the divorce decree which have not been fully executed, upon remarriage of the parties, no action may be brought to enforce those provisions." Parks, 258 Ill.App.3d at 484, 196 Ill.Dec. 574, 630 N.E.2d 509. Such a result was appropriate, the court said, to prevent parties "who have chosen to begin marriage anew from squabbling in court about their respective failings under the prior divorce decree." Parks, 258 Ill.App.3d at 484, 196 Ill.Dec. 574, 630 N.E.2d 509. The court did state, however, that its holding did not necessarily preclude the wife from raising the issue in the second divorce action, which apparently was pending under another case number. Parks, 258 Ill.App.3d at 485, 196 Ill.Dec. 574, 630 N.E.2d 509.

Because Parks involved alimony in gross, the court had no reason to distinguish between installments of support or maintenance that were due to be paid before the remarriage and those that were not due until after the remarriage. In In re Marriage of Root, 774 S.W.2d 521 (Mo. App.1989), the court squarely faced this distinction. Noting that state law deemed overdue child support payments a judgment in favor of the receiving spouse, the court held that the trial court erred in barring the wife from collecting child support installments that had become due before the parties remarried each other. Root, 774 S.W.2d at 527.

In discussing earlier cases, Root distinguished Davis but clearly approved of its holding that the wife could not recover support installments that would have been due after the remarriage. The court stated:

"It would be absurd to hold that once parents remarry each other and the family is again intact and residing in the same household, the former noncustodial parent must pay future installments of child support to the other parent per the past divorce decree. That is to say, the remarriage should terminate the former noncustodial parent's duty to pay any child support that would have become due after the remarriage." (Emphasis in original.) Root, 774 S.W.2d at 523.

In Schaff v. Schaff, 446 N.W.2d 28 (N.D. 1989), the parties to a paternity decree subsequently married. The court treated the paternity case as equivalent to a prior divorce action between the parties and held that their marriage nullifed the prior decree, at least as to future installments of child support. Schaff, 446 N.W.2d at 31. The court explained the rationale that parties who marry no longer have separate rights of custody or support and recited the above-quoted passage from Root. Schaff, 446 N.W.2d at 31

. In a footnote, the court referred to the conflict between Root and Ringstrom regarding support installments accruing before the remarriage, but declined to resolve the issue because the wife was not making a claim for past-due support. Schaff, 446 N.W.2d at 31 n. 5; see also Griffis, 202 W.Va. at 214,

503 S.E.2d at 521.

It is thus true, as petitioner argues, that Root "rejected Ringstrom," but only to the extent that Ringstro...