State of Ariz. ex rel. Painter v. Painter

• Court: Appellate Court of Illinois
• Writing for the Court: JOHNSON
• Citation: State of Ariz. ex rel. Painter v. Painter, 606 N.E.2d 298, 238 Ill.App.3d 796, 179 Ill.Dec. 466 (Ill. App. 1992)
• Decision Date: 05 November 1992
• Docket Number: No. 1-91-0049,1-91-0049
• Parties: , 179 Ill.Dec. 466 The STATE OF ARIZONA ex rel. Tara Grant PAINTER, Petitioner-Appellee, v. Jack Ward PAINTER, Respondent-Appellant.

Page 298

606 N.E.2d 298

238 Ill.App.3d 796, 179 Ill.Dec. 466

The STATE OF ARIZONA ex rel. Tara Grant PAINTER, Petitioner-Appellee, v. Jack Ward PAINTER, Respondent-Appellant.

No. 1-91-0049.

Appellate Court of Illinois First District, Fourth Division.

Nov. 5, 1992.

Rehearing Denied Dec. 28, 1992.

Bernard Hammer, Ltd., Chicago, for respondent-appellant.

Jack O'Malley, Cook County State's Atty., Chicago (Obyrietta Gammett Scott and Leonard N. Foster, Asst. State's Attys., of counsel), for petitioner-appellee.

Justice JOHNSON delivered the opinion of the court:

Jack Ward Painter (respondent), appeals from an order of the circuit court of Cook County denying his motion for attorney fees in a child support proceeding arising under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) (Ill.Rev.Stat.1987, ch. 40, par. 1201 et seq.). On appeal, the issues for review are whether the trial court (1) erred in finding that the Coconino County Court of the State of Arizona had jurisdiction to receive, certify and forward petitioner's RURESA petition; (2) erred in finding that the assistant State's Attorney was not required to sign the URESA petition pursuant to Supreme Court Rule 137 (134 Ill.2d R. 137); (3) abused its discretion in denying respondent's request for attorney fees and expenses pursuant to Supreme Court Rule 137 and section 2-611 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-611); and (4) erred in finding that the State of Arizona was not subject to the jurisdiction of the Illinois courts.

We affirm.

Tara Grant Painter (petitioner) and respondent were divorced in Travis County, Texas, on January 14, 1986. Petitioner was awarded custody of the parties' two minor children. Respondent was ordered to pay petitioner child support of $325 per month per child, or $400 per month if only one child remained eligible for support. Following the dissolution of their marriage, respondent moved to Cook County, Illinois, and petitioner moved to Yavapai County, Arizona.

On January 31, 1989, petitioner filed a RURESA complaint in Coconino County, Arizona, alleging that respondent was $1,300 in arrears. As provided for under RURESA, the Cook County State's Attorney issued notice for respondent to file an appearance. On August 31, 1989, respondent met with Assistant State's Attorney Susan Plass. Respondent offered to produce cancelled checks to show that he was not delinquent. Attorney Plass declined to review the documents and advised respondent to obtain counsel.

Prior to court on November 14, 1989, respondent obtained an attorney and reviewed his records with Assistant State's Attorney Plass. Once in court, respondent moved to dismiss the action for lack of subject matter jurisdiction. After an extensive hearing on the matter, respondent's motion was denied.

Respondent's counsel also moved to strike the petition on the ground that it was not signed by the assistant State's Attorney as required by Supreme Court Rule 137. Again, the trial court heard extensive arguments on the issue. The trial court found that the petition was properly certified by the State of Arizona and denied respondent's motion.

During the hearing, the State alleged that respondent was in arrears for December 1988 and January 1989 child support payments. Respondent presented evidence that he transferred $2,000 from his bank account to petitioner's account in June of 1988. Respondent claimed that this was an advance on child support and deducted $2,300 from his payments. The State claimed that the $2,000 was a loan. The State contended that the loan payment could not be offset against future child support payments. The trial court found that respondent was not in arrears and ordered future payments to be made to the Clerk of the Circuit Court of Cook County. Respondent moved for sanctions against petitioner, the State's Attorney of Cook County, Assistant State's Attorney Plass, and the State of Arizona. After a hearing, this motion was denied.

On appeal, respondent contends that the court erred in denying his motion for sanctions and attorney fees. Although the trial court found respondent was not in arrears on his child support payments, he also appeals procedural and substantive issues which were decided during the underlying claim. Respondent does not seek reversal of the underlying claim; however, he raises these issues to support his contention that he is entitled to reimbursement of his expenses pursuant to Supreme Court Rule 137.

We first address respondent's contention that the trial court did not have subject matter jurisdiction over this action. Despite respondent's suggestion, subject matter jurisdiction cannot be waived on review. Swope v. Northern Illinois Gas Co. (1991), 221 Ill.App.3d 241, 243, 163 Ill.Dec. 665, 581 N.E.2d 819.

As a preliminary matter, we note that RURESA has been adopted in nearly all 50 States, including Arizona. (See Ariz.Rev.Stat.1987, § 12-1651 et seq.) The purposes of RURESA are to improve and extend by reciprocal legislation the enforcement of duties of support, and to enable the dependent in one State to enforce a duty of obligation of support owed by a person residing in another State. (People ex rel. LeGout v. Decker (1992), 146 Ill.2d 389, 396, 166 Ill.Dec. 928, 586 N.E.2d 1257.) A court acting pursuant to RURESA has jurisdiction to hear cases which fall within the general category of support enforcement. See Ill.Rev.Stat.1987, ch. 40, par. 1210.

In order to adequately address the issues, an explanation of a RURESA proceeding is required. The Supreme Court of Nebraska explained the application of RURESA as follows:

"RURESA provides two civil remedies. Under the first, * * * [ ] the party claiming support, the obligee, may bring suit in the obligee's home state, the initiating state (not necessarily the same state which entered the dissolution decree), and obtain a judgment for support in the state in which the obligor is present, the responding state. 1 H. Clark, The Law of Domestic Relations in the United States § 7.6 (2d ed. 1987); [Ill.Rev.Stat.1987, ch. 40, pars. 1204, 1208.] This part of the act contemplates that the obligee file in the initiating state a petition for support; if the initiating state court determines that the petition 'sets forth facts from which it may be determined that the obligor owes a duty of support[ ] and that a court of the responding state may obtain jurisdiction of the obligor or his property,' then the initiating state court shall forward the petition to the responding state. [Ill.Rev.Stat.1987, ch. 40, par. 1214.] Thus, the initiating state court only determines whether further proceedings are warranted. [Citations.] Upon receipt of the petition, the responding state court notifies the prosecuting state attorney, who 'shall take all action necessary ... to enable the court to obtain jurisdiction over the obligor or his property and shall request ... a hearing and give notice thereof to the obligor ...' [Ill.Rev.Stat.1987, ch. 40, par. 1218(b).] The responding state court then holds a hearing and must reach a determination as to whether the obligor owes a duty of support; if it so finds, 'it may order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order.' [Ill.Rev.Stat.1987, ch. 40, par. 1224.] The same procedure may be used when the obligee and obligor are in different counties of the same state. [See People ex rel. LeGout v. Decker (1992), 146 Ill.2d 389, 166 Ill.Dec. 928, 586 N.E.2d 1257.]

The second remedy[ ] * * *[ ] allows the beneficiary of an outstanding support judgment of another state to register that judgment in the state where the obligor is present and provides a summary procedure for enforcing that judgment in the obligor's state as if the registered judgment were one rendered by a court of that state. 1 H. Clark, supra; [Ill.Rev.Stat.1987, ch. 40, par. 1235 et seq.]." Formanack v. Formanack (1990), 234 Neb. 325, 331, 451 N.W.2d 250, 255.

Respondent contends that petitioner was not a resident of Coconino County when she filed the RURESA petition and, therefore, Coconino County lacked jurisdiction to receive, certify, and forward the RURESA petition. Respondent submitted a map to the trial court to support his position that petitioner lived in Yavapai County, a county which adjoins Coconino. Respondent contends that proceedings to enforce duties of support must be originated in the county of residence of the respondent or petitioner in order to be an appropriate county. Ariz.Rev.Stat.1987, § 12-2452(B).

The State counters that petitioner did live in Coconino County at the time the petition was filed. The State argues that based on the map respondent presented it was impossible to determine otherwise. The State further counters that the RURESA provision requires filing "in the appropriate court of any State in which obligee resides." (Ariz.Rev.Stat.1987, § 12-1660.) Based on this provision, the State argues that the proceeding need not be originated in petitioner's resident county in order for it to be an appropriate county.

In this case, we believe the trial court's finding is supported by both fact and law. First, the trial court did not believe respondent's map was conclusive on the question of whether petitioner resided in Yavapai County. The trial court found that petitioner filed her action in the appropriate county. Cognizant that the trial court's finding on a question of fact will not be reversed absent an abuse of discretion, we find that the trial court did not error in denying respondent's motion to dismiss for lack of subject matter jurisdiction.

Second, even if the action was filed in an improper county, Coconino County was not deprived of jurisdiction to receive, certify and forward the petition. Section 12-1660 of RURESA provides that "[t]he complaint may be filed in the appropriate court of any state in which the...