Marriage of Henry, In re

• Decision Date: 21 October 1993
• Docket Number: No. 74406,74406
• Citation: 622 N.E.2d 803,156 Ill.2d 541,190 Ill.Dec. 773
• Parties: , 190 Ill.Dec. 773, 34 A.L.R.5th 833 In re MARRIAGE OF Czarist HENRY and Joseph Henry, Appellee (The People of the State of Illinois ex rel. the Department of Public Aid, Appellant).
• Court: Illinois Supreme Court

Page 803

622 N.E.2d 803

156 Ill.2d 541, 190 Ill.Dec. 773, 34

A.L.R.5th 833

In re MARRIAGE OF Czarist HENRY and Joseph Henry, Appellee (The People of the State of Illinois ex rel. the Department of Public Aid, Appellant).

No. 74406.

Supreme Court of Illinois.

Oct. 21, 1993.

Roland W. Burris, Atty. Gen., Springfield, and William Haine, State's Atty., Edwardsville (Rosalyn B. Kaplan, Sol. Gen., Chicago, and Robert G. Toews, Asst. Atty. Gen., Mt. Vernon, of counsel), Norbert J. Goetten, Stephen E. Norris and Gerry R. Arnold, of the Office of the State's Attys. Appellate Prosecutor, for appellant.

No appearance for appellee.

Justice NICKELS delivered the opinion of the court:

The Illinois Department of Public Aid (Department), to which petitioner assigned her rights in this matter as a recipient of public aid (see 750 ILCS 15/2.1 (West 1992)), appeals the finding of the trial court that payment of a social security dependent disability allowance to the parties' minor daughter fulfilled respondent's child support obligation for those months during which the allowance was paid, a finding which the appellate court affirmed in an unpublished order (No. 5-89-0390 (unpublished order under Supreme Court Rule 23)). We allowed the Department's petition for leave to appeal (134 Ill.2d R. 315) and now affirm the appellate court.

In 1981, Czarist Henry filed a petition to dissolve her marriage to respondent, Joseph Henry, which was granted. The judgment further required Joseph to pay $50 per week in child support for the parties' two children, Aaron and Cammee, born in 1968 and 1974 respectively. However, Joseph failed to meet his child support obligations, and as a result in 1983 and again in 1985, orders were entered for payment of the original amount of child support plus payment of an additional amount towards the arrearage. In addition, in 1985, an order for withholding and a turnover order against Joseph's State and Federal income tax refunds were entered.

In February 1989, Joseph contacted the trial court by letter, which the trial court treated as a petition for modification. Specifically, Joseph's letter indicated that Aaron, who was about to turn 21 years of age, had been self-supporting for three years. Joseph also indicated that he had been found disabled in October 1987 and that a social security dependent disability allowance well in excess of Joseph's child support obligation had begun at that time. Although Joseph himself had also been receiving public aid since 1987 and had contacted the Department in an attempt to obtain relief from his child support obligation, he continued to be charged with such obligation. His letter further indicated that between 1985 and 1987, his wages had been garnished as ordered and his tax refunds applied toward the arrearage. On this stipulated record, the trial court found that "it would be inequitable to find that [Joseph] did not fulfill his support obligation commencing October, 1987" when payment of the social security dependent disability benefits had begun, and accordingly Joseph's child support was only in arrears through September 1987.

The Department appealed, and the appellate court reversed and remanded for modification of the trial court's order. However, because Joseph had not filed a brief in the appellate court, the trial court appointed counsel for the purpose of seeking a rehearing in the appellate court. The petition for rehearing was granted, the appellate court vacated its previous order and entered a modified order affirming the trial court's findings. As stated, the Department's petition for leave to appeal was granted.

The issue presented is not whether a trial court may retroactively modify or alter a previously entered order for child support. Dissolution of marriage and collateral matters such as child support are entirely statutory in origin and nature (Strukoff v. Strukoff (1979), 76 Ill.2d 53, 60, 27 Ill.Dec. 762, 389 N.E.2d 1170), and, in light of the legislature's clear pronouncement that "any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party," a trial court has no authority to retroactively modify a child support order (750 ILCS 5/510(a) (West 1992)), unlike other States (see Mass.Ann.Laws ch. 208, § 37 (Law. Co-op.1981); Cal.Civ.Code § 4705 (Deering 1984) (credit for social security disability payments required)). In contrast, the issue in the instant appeal is whether payment of a social security dependent disability allowance on behalf of the obligated parent satisfied such parent's child support obligation.

The Department relies on this court's decision in Finley v. Finley (1980), 81 Ill.2d 317, 43 Ill.Dec. 12, 410 N.E.2d 12, together with precedent from the State of Washington, both of which in turn were the basis of the Appellate Court, Third District's decision in In re Estate of Nakaerts (1982), 106 Ill.App.3d 166, 61 Ill.Dec. 950, 435 N.E.2d 791, on which the Department further relies. However, we conclude that the Nakaerts court, like the Department here, interpreted the holding of Finley too broadly.

In Finley, this court held that a parent obliged to make a single, undifferentiated child support payment for several children could not unilaterally reduce such payment pro rata as each child reached majority. (Finley, 81 Ill.2d at 329, 43 Ill.Dec. 12, 410 N.E.2d 12.) There can be no dispute that a decrease in the amount of child support works a modification of a support order (Finley, 81 Ill.2d at 329, 43 Ill.Dec. 12, 410 N.E.2d 12), which is beyond the court's authority (750 ILCS 5/510(a) (West 1992)). In contrast in this instance, however, the trial court did not reduce the amount of child support. The trial court below expressly provided that the 1985 order of support continued in full force and effect. Thus, the trial court merely found that social security dependent disability benefits paid on behalf of the noncustodial parent satisfied that parent's child support obligation for the period such benefits were received, and only the method of payment, or payor, was changed. Our own provision for an order of withholding contemplates similar third-party payments on behalf of an obligated parent. 750 ILCS 5/706.1 (West 1992); see also Sullivan v. Stroop (1990), 496 U.S. 478, 488 n. 3, 110 S.Ct. 2499, 2506 n. 3, 110 L.Ed.2d 438, 448 n. 3 (Blackmun, J., dissenting, joined by Brennan & Marshall, JJ.).

Further, the rationale that the amount required to support a second child is incrementally less than that necessary to support one child supported this court's decision in Finley. Economists refer to such phenomena as economies of scale. Common sense resulted in the similar adage that two can live as cheaply as one. (See Bowen v. Gilliard (1987), 483 U.S. 587, 599-600, 107 S.Ct. 3008, 3016, 97 L.Ed.2d 485, 500 (" 'common sense proposition that individuals living with others usually have reduced per capita costs because many of their expenses are shared.' " [Citation.] ).) Our own legislature has codified such commonsense and economic theory in the statutory guidelines for establishing child support, which reflect that 20% of a noncustodial parent's net income is necessary to support a single child, but that incrementally only an additional 5% is needed for a second child. (750 ILCS 5/505(a)(1) (wesT 1992).) finley's logic, however, is not applicable in a situation such as this where only the method of payment was altered and the amount of child support remained unchanged.

Like the court in Nakaerts, the Department also further relies on precedent from the State of Washington. Washington is among the minority of jurisdictions that have held that credit for the payment of social security dependent disability allowances is an impermissible retroactive modification of a support order. (See Hinckley v. Hinckley (Wyo.1991), 812 P.2d 907; Arnoldt v. Arnoldt (1990), 554 N.Y.S.2d 396, 147 Misc.2d 37; Guthmiller v. Guthmiller (N.D.1989), 448 N.W.2d 643; Gerlich v. Gerlich (Minn.App.1986), 379 N.W.2d 689; Zirkle v. Zirkle (1983), 172 W.Va. 211, 304 S.E.2d 664; In re Marriage of Cope (1981), 291 Or. 412, 631 P.2d 781; Fowler v. Fowler (1968), 156 Conn. 569, 244 A.2d 375; Chase v. Chase (1968), 74 Wash.2d 253, 444 P.2d 145.) However, the overwhelming majority of jurisdictions have held that payment of a social security dependent disability allowance paid on behalf of a noncustodial parent satisfied such parent's child support obligation. (See Hanthorn v. Hanthorn (1990), 236 Neb. 225, 460 N.W.2d 650; Board v. Board (Ky.1985), 690 S.W.2d 380; Justice v. Scruggs (1985), 286 S.C. 165, 332 S.E.2d 106; Bowden v. Bowden (Ala.Civ.App.1983), 426 So.2d 448; In re Marriage of Meek (Colo.App.1983), 669 P.2d 628, 630; Children & Youth Services v. Chorgo (1985), 341 Pa.Super. 512, 491 A.2d 1374; Folds v. Lebert (La.App.1982), 420 So.2d 715; Mooneyham v. Mooneyham (Miss.1982), 420 So.2d 1072; Davis v. Davis (1982), 141 Vt. 398, 449 A.2d 947; In re Marriage of Denney (1981), 115 Cal.App.3d 543, 171 Cal.Rptr. 440 (statute expressly provides for credit for social security payments); Newton v. Newton (Mo.App.1981), 622 S.W.2d 23; Lopez v. Lopez (1980), 125 Ariz. 309, 609 P.2d 579; Mask v. Mask (1980), 95 N.M. 229, 620 P.2d 883; Griffin v. Avery (1980), 120 N.H. 783, 424 A.2d 175; Perteet v. Sumner (1980), 246 Ga. 182, 269 S.E.2d 453; Potts v. Potts (Iowa 1976), 240 N.W.2d 680; Andler v. Andler (1975), 217 Kan. 538, 538 P.2d 649; Cash v. Cash (1962), 234 Ark. 603, 353 S.W.2d 348.) Moreover, we find the logic of the Washington court in Chase v. Chase, on which both the Department and the Nakaerts court relied, flawed.

The Chase court ruled that receipt of social security dependent disability benefits was a change in circumstances, to be considered with all other circumstances and to be considered prospectively only. (Chase, 74 Wash.2d at 259, 444 P.2d at 149.)...