In re Marriage of Ross

2015 IL App (2d) 130961

• Court: Appellate Court of Illinois
• Decided: February 13, 2015
• Docket: 2-13-0961
• Status: Unpublished

Opinion

2015 IL App (2d) 130961 No. 2-13-0961 Opinion filed February 11, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court JAMES S. ROSS (Deceased), ) of Du Page County. ) Petitioner, ) ) and ) No. 85-MR-111 ) ANITA ROSS PRUITT, ) ) Respondent and Petitioner-Appellee ) and Cross-Appellant ) ) (Holly Ross, Executor of the Estate of ) Honorable James S. Ross, Respondent-Appellant ) Rodney W. Equi, and Cross-Appellee). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Holly Ross, executor of the estate of James S. Ross (James, but collectively with Holly,

the Estate), appeals from the trial court’s judgment in favor of Anita Ross Pruitt (Anita) on

Anita’s petition for child support that James was ordered to pay Anita in the 1983 decree

dissolving their marriage. We agree with the Estate that Anita’s petition to collect the child

support arrearage was untimely under section 18-12(b) of the Probate Act of 1975 (755 ILCS

5/18-12(b) (West 2012)). Therefore, we reverse the trial court’s judgment. 2015 IL App (2d) 130961

¶2 I. BACKGROUND

¶3 James and Anita were married in 1968 in Oak Park, Illinois. The marriage produced three

children, with the youngest born in 1972. In 1982, James filed for dissolution of the marriage in

Cook County circuit court case number 82-D-24518. In May 1983, a judgment of dissolution was

entered in that case. Anita was awarded physical custody of the children, and James was ordered

to pay her $300 monthly in child support. In 1985, on Anita’s petition, the dissolution judgment

was registered in Du Page County circuit court case number 85-MR-111.

¶4 In May 2008, James died from injuries suffered in a workplace accident. In April 2012,

Anita filed in case number 85-MR-111 a “petition for confirmation of lien, sale of real estate,

and entry of a qualified domestic relations order.” She alleged child support arrearages of

$7,770 and $14,687.34, respectively, in case numbers 82-D-24518 and 85-MR-111. Adding

statutory interest, Anita alleged a total arrearage of $65,976.46. Anita claimed that there was an

existing lien in that amount against the assets of the Estate by operation of section 505(d) of the

Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(d) (West

2012) (“[A] lien arises by operation of law against the real and personal property of the

noncustodial parent for each installment of overdue [child] support owed by the noncustodial

parent.”)). Those assets included real estate that James had owned in Elmhurst and a pension

that he had earned from Iron Workers Mid-America. Anita sought an order directing the sale of

the real estate and applying the proceeds to the support arrearage. She also sought a qualified

domestic relations order (QDRO) applying James’s pension to the arrearage.

¶5 The Estate responded by filing a nine-count motion to strike and dismiss Anita’s petition.

Count II of the motion asserted that Anita’s petition was in the “wrong venue.” Specifically,

the Estate claimed that, because James was deceased and his and Anita’s youngest child was

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long since emancipated, Anita should have brought her action in probate court rather than

domestic relations court.

¶6 Following a hearing on the motion to strike and dismiss, the trial court agreed with the

Estate that the court had no jurisdiction because the divorce action abated upon James’s death.

The court denied the motion to strike and dismiss except as to count II. On that count, the court

entered a dismissal but stayed it “for 60 days, pending the filing of a new action to foreclose any

lien claimed by [Anita].”

¶7 Anita filed a motion to reconsider, citing case law to the effect that a party’s death prior

to entry of the final decree of divorce will abate the divorce proceeding, but that if the death

occurs subsequent to the final decree there is no abatement. See, e.g., Fox v. Coyne, 25 Ill.

App. 2d 352, 360 (1960).

¶8 In its response to the motion to reconsider, the Estate cited section 510(e) of the Marriage

Act (750 ILCS 5/510(e) (West 2012)), which states that “[t]he right to petition for support or

educational expenses, or both, under Sections 505 [(750 ILCS 5/505 (West 2012))] and 513

[(750 ILCS 5/513 (West 2012))] is not extinguished by the death of a parent,” but that “a claim

*** against the estate of a decedent” for support or educational expenses is time-limited “by the

provisions of the Probate Act of 1975 [(Probate Act) (755 ILCS 5/1-1 et seq. (West 2012))], as a

barrable, noncontingent claim.” The Estate contended that Anita’s claim was time-barred under

section 18-12(b) of the Probate Act (755 ILCS 5/18-12(b) (West 2012)), which imposes an outer

limit of two years for claims against a decedent’s estate.

¶9 The motion to reconsider proceeded to hearing. In taking the matter under advisement,

the court noted that its initial impression was that section 510(e) applied to new claims for child

support, not attempts to collect arrearages of support previously ordered.

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¶ 10 The court subsequently granted the motion to reconsider, finding that Anita was “entitled

to attempt enforcement of any child support arrearage against the [E]state in this court.” The

Estate subsequently filed its response and affirmative defenses to Anita’s petition. On Anita’s

motion, the court struck the response as too indefinite. In its amended response, the Estate

brought several affirmative defenses. For instance, the Estate claimed laches and also

reasserted that Anita’s petition was barred under section 510(e) of the Marriage Act and section

18-12(b) of the Probate Act.

¶ 11 Further motion practice followed, and ultimately the court struck all affirmative defenses

raised by the Estate except for laches. Anita’s petition then proceeded to a bench trial. The

court found in Anita’s favor and entered judgment against the Estate for $68,562.70, which

comprised a child support arrearage of $22,457.34 plus $46,105.36 in statutory interest. The

court also entered a QDRO against James’s pension. Finally, the court awarded Anita costs but

declined to award her attorney fees.

¶ 12 The Estate filed a notice of appeal challenging the trial court’s judgments (1) granting

Anita’s motion to reconsider the dismissal of her petition; (2) striking the Estate’s affirmative

defenses except for laches; and (3) finding, after trial, that laches did not apply to Anita’s claim.

Anita cross-appealed the denial of attorney fees.

¶ 13 II. ANALYSIS

¶ 14 The Estate raises several contentions on appeal. One of them is that the trial court erred

in ruling that section 510(e) of the Marriage Act, which incorporates the time limits of section

18-12(b) of the Probate Act, did not bar Anita’s claim against the Estate for overdue child

support. The trial court’s disagreement with the Estate over the impact of section 510(e) and

section 18-12(b) on this case was the basis both for the court’s judgment vacating its dismissal of

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Anita’s petition and for its later judgment striking the Estate’s affirmative defenses, one of which

renewed the Estate’s contention that Anita’s claim was time-barred under those sections. We

agree with the Estate that Anita’s claim was indeed time-barred under section 510(e) and section

18-12(b).

¶ 15 We begin with section 505(a) of the Marriage Act (750 ILCS 5/505(a) (West 2012)),

which provides that, in a proceeding for dissolution of marriage, the trial court “may order either

or both parents owing a duty of support to a child of the marriage to pay an amount reasonable

and necessary for the support.” (Section 513 of the Marriage Act (750 ILCS 5/513 (West

2012)), which is not involved in this appeal but is cited in section 510(e), permits the court in a

dissolution proceeding to make an award for the support of non-minor children.) Section 510

of the Marriage Act (750 ILCS 5/510 (West 2012)) concerns proceedings for the modification or

termination of provisions for spousal maintenance, child support, educational expenses, and

property disposition. Applicable here are subsections (d) and (e) of section 510, which state:

“(d) Unless otherwise provided in this Act, or as agreed in writing or expressly

provided in the judgment, provisions for the support of a child are terminated by

emancipation of the child, or if the child has attained the age of 18 and is still attending

high school, provisions for the support of the child are terminated upon the date that the

child graduates from high school or the date the child attains the age of 19, whichever is

earlier, but not by the death of a parent obligated to support or educate the child. An

existing obligation to pay for support or educational expenses, or both, is not terminated

by the death of a parent. When a parent obligated to pay support or educational

expenses, or both, dies, the amount of support or educational expenses, or both, may be

enforced, modified, revoked or commuted to a lump sum payment, as equity may require,

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and that determination may be provided for at the time of the dissolution of the marriage

or thereafter.

(e) The right to petition for support or educational expenses, or both, under

Sections 505 [(750 ILCS 5/505 (West 2012))] and 513 [(750 ILCS 5/513 (West 2012))] is

not extinguished by the death of a parent. Upon a petition filed before or after a parent’s

death, the court may award sums of money out of the decedent’s estate for the child’s

support or educational expenses, or both, as equity may require. The time within which

a claim may be filed against the estate of a decedent under Sections 505 and 513 and

subsection (d) and this subsection shall be governed by the provisions of the Probate Act

of 1975 [(755 ILCS 5/1-1 et seq. (West 2012))], as a barrable, noncontingent claim.”

(Emphasis added.) 750 ILCS 5/510(d), (e) (West 2012).

¶ 16 In the italicized language in the last sentence of subsection (e), the legislature mentions

claims under subsection (d) separately from claims under subsection (e). We presume that the

legislature thereby contemplated a substantive distinction between two types of claims for

support against a deceased parent’s estate. See People ex rel. Sherman v. Cryns, 203 Ill. 2d

264, 280 (2003) (“Each word, clause and sentence of the statute, if possible, must be given

reasonable meaning and not rendered superfluous.”). Evidently, the distinction is that

subsection (d), in its final two sentences, concerns a claim against an estate based on a support

obligation existing at the parent’s death, while the first two sentences of subsection (e) concern a

claim against the estate for an initial or “new” award of support. The comprehensive

conjunctive in the final sentence of subsection (e) subjects to the Probate Act all claims for

support against an estate, whether the claims are based on support obligations existing at the

parent’s death or are “new” claims for support. Moreover, with respect to the class of claims

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based on existing support obligations, there is no language in subsection (e) excepting claims for

support arrearages from the governance of the Probate Act. Therefore, Anita’s claim for an

arrearage is governed by the Probate Act.

¶ 17 Section 18-12 of the Probate Act specifies limitations periods for claims against a

decedent’s estate, providing in relevant part:

“(a) Every claim against the estate of a decedent, except expenses of

administration and surviving spouse’s or child’s award, is barred as to all of the

decedent’s estate if:

(1) Notice is given to the claimant as provided in Section 18-3 and the

claimant does not file a claim with the representative or the court on or before the

date stated in the notice; or

(2) Notice of disallowance is given to the claimant as provided in Section

18-11 and the claimant does not file a claim with the court on or before the date

stated in the notice; or

(3) The claimant or the claimant’s address is not known to or reasonably

ascertainable by the representative and the claimant does not file a claim with the

representative or the court on or before the date stated in the published notice as

provided in Section 18-3.

(b) Unless sooner barred under subsection (a) of this Section, all claims which

could have been barred under this Section are, in any event, barred 2 years after

decedent’s death, whether or not letters of office are issued upon the estate of the

decedent.” (Emphasis added.) 755 ILCS 5/18-12 (West 2012).

Anita’s claim was brought more than two years after James’s death. Thus it was barred.

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¶ 18 Our reading of section 510(e) finds support in In re Marriage of Epsteen, 339 Ill. App. 3d

586, 597 (2003), where the First District rejected the suggestion that section 510(e) subjects to

the Probate Act only “new claim[s] for support,” not claims for “enforcement [or] modification

[of] an existing court order.”

¶ 19 Anita, however, proposes several reasons why section 510 does not apply to claims for

child support arrearages. First, she cites sections of the Code of Civil Procedure (Code) (735

ILCS 5/1-101 et seq. (West 2012)) regarding the revival and enforcement of judgments. These

sections apply here, Anita claims, because judgments of arrearage, and related liens, have

already arisen in this case by operation of law. She cites section 505(d) of the Marriage Act

(750 ILCS 5/505(d) (West 2012)):

“(d) Any new or existing support order entered by the court under this Section

shall be deemed to be a series of judgments against the person obligated to pay support

thereunder, each such judgment to be in the amount of each payment or installment of

support and each such judgment to be deemed entered as of the date the corresponding

payment or installment becomes due under the terms of the support order. Each such

judgment shall have the full force, effect and attributes of any other judgment of this

State, including the ability to be enforced. Notwithstanding any other State or local law

to the contrary, a lien arises by operation of law against the real and personal property

of the noncustodial parent for each installment of overdue support owed by the

noncustodial parent.” (Emphasis added.)

Before moving to the Code sections that Anita cites, we reemphasize that section 510(e) of the

Marriage Act subjects to the Probate Act all claims for child support, including those based on

arrearages existing when the payor died. Although a support arrearage automatically creates a

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lien against the payor’s property, the existence of a lien does not obviate the need to file a claim

under the Probate Act against the payor’s estate. See In re Estate of Garawany, 80 Ill. App. 3d

401, 404 (1980) (“It is *** long established that the filing of a lien for the amount claimed from

an estate is not equivalent to the filing of a claim.”).

¶ 20 We move to the Code sections on which Anita relies. Section 2-1602 of the Code (735

ILCS 5/2-1602 (West 2012)) concerns the revival of judgments and provides pertinently:

“(a) A judgment may be revived by filing a petition to revive the judgment in the

seventh year after its entry, or in the seventh year after its last revival, or in the twentieth

year after its entry, or at any other time within 20 years after its entry if the judgment

becomes dormant. The provisions of this amendatory Act of the 96th General Assembly

are declarative of existing law.

***

(g) This Section does not apply to a child support judgment or to a judgment

recovered in an action for damages for an injury described in Section 13-214.1 [(735

ILCS 5/13-214.1 (West 2012))], which need not be revived as provided in this Section

and which may be enforced at any time as provided in Section 12-108 [(735 ILCS

5/12-108 (West 2012))].” (Emphasis added.)

¶ 21 Section 12-108 (735 ILCS 5/12-108 (West 2012)), cited in section 2-1602, concerns the

enforceability of judgments, stating in relevant part:

“(a) Except as herein provided, no judgment shall be enforced after the expiration of 7

years from the time the same is rendered, except upon the revival of the same by a

proceeding provided by Section 2-1601 of this Act [(735 ILCS 5/2-1601 (West 2012))];

but real estate, levied upon within the 7 years, may be sold to enforce the judgment at any

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time within one year after the expiration of the 7 years. A judgment recovered in an

action for damages for an injury described in Section 13-214.1 [(735 ILCS 5/13-214.1

(West 2012))] may be enforced at any time. Child support judgments, including those

arising by operation of law, may be enforced at any time.” (Emphasis added.)

¶ 22 We have found nothing in the Code, the Marriage Act, or the Probate Act to explain the

interplay of these statutes as to the question at hand. It also appears that no published Illinois

decision has addressed the issue.

¶ 23 In deciding the matter, however, we have recourse to the canons of statutory

interpretation. “[W]here there are two statutory provisions, one of which is general and

designed to apply to cases generally, and the other is particular and relates to only one subject,

the particular provision must prevail.” (Internal quotation marks omitted.) Hernon v. E.W.

Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992).

¶ 24 Under this canon, section 510(e) governs because it has the greater particularity.

Sections 2-1602 and 12-108 of the Code concern child support judgments generally, while

section 510(e) specifically addresses child support claims (including, as we have emphasized,

claims for arrearages) against a deceased payor’s estate.

¶ 25 Anita does not cite it, but section 12-157 of the Code (735 ILCS 5/12-157 (West 2012))

explains how the death of a judgment debtor affects the enforceability of an existing judgment:

“If a person dies, after a court enters on judgment for the payment of money against him

or her, the judgment may be enforced against the real estate of such deceased person, or a

sale may be made under such judgment, without reviving the judgment against his or her

heirs, legatees or legal representatives. No sale shall be made until after the expiration

of 12 months from the death of such deceased person, nor shall any sale be had on such

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judgment until the person in whose favor the judgment is sought to be enforced shall give

to the executor or administrator, or if there is neither, the heirs of the deceased, at least 3

months’ notice of the existence of such judgment, before proceeding to sell, which notice

shall be in writing if the parties required to be notified reside or may be found within the

State, and their place of residence known, otherwise publication notice shall be given in

the same manner as is provided for other civil cases.”

Section 12-157 is a general provision on the survival of judgments against a party who later dies;

it speaks of judgments generally and does not address judgments for child support specifically.

(In an interesting comparison, sections 2-1602 and 12-108 of the Code address the enforceability

of child support judgments but do not specifically address enforceability against a decedent’s

estate.) Section 510(e) of the Marriage Act, by contrast, specifically addresses child support

claims against the estate of a deceased, and its sweeping language renders all such claims subject

to the Probate Act, including those based on judgments and liens that have arisen automatically

by operation of section 505(d) of the Marriage Act. Therefore, section 510(e) is the more

particular provision.

¶ 26 Moreover, section 12-157 is not at odds with section 18-12 of the Probate Act. The first

sentence of section 12-157 address a subject—the revival of judgments—about which section

18-12 simply is not concerned. The remainder of the section establishes a 12-month waiting

period for the sale of the deceased’s real property in satisfaction of the judgment and requires

that advance notice of the sale be given to the executor or administrator of the deceased’s estate

or, if there is none, to the heirs of the deceased. There is no facial conflict between these sale

and notice provisions and the time strictures in section 18-12 for filing a claim against an estate.

Section 12-157 may be read to assume that a claim with respect to the deceased debtor’s real

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estate was filed against the estate in compliance with section 18-12. See Martinez v. County of

Stephenson, 268 Ill. App. 3d 427, 430 (1995) (“Statutes that address the same subject matter are

in pari materia and, if possible, should receive harmonious and consistent constructions.”).

¶ 27 We turn to Anita’s remaining reasons for why we should not apply section 510 of the

Marriage Act to her claim for overdue child support. First, Anita cites remarks from case law

that, in her view, demonstrate “the inviolability of lien rights.” She quotes the following

remark from Tinney v. Wolston, 41 Ill. 215, 219 (1866): “There is no rule of law better

recognized than that a person who gives to another a valid lien, or against whom the law has

created a lien, is unable, by any act of his short of discharging it, to impair or affect it.” She

also cites these remarks from Temesvary v. Houdek, 301 Ill. App. 3d 560, 564-65 (1998):

“The legislature has the power, subject to constitutional limitations, to provide for liens to

secure the payment of debts and other obligations, and legislative authority exists to

create by statute a right of lien where no such right existed at common law. [Citation.]

Lien laws are liberally construed to effect the purpose intended by the legislature.”

¶ 28 These statements do not on their face bar application of the Marriage Act and the Probate

Act to Anita’s claim, and she provides no context from the cases by which we might better

evaluate their pertinence. Therefore, we reject this point.

¶ 29 Anita also characterizes her claim for delinquent child support as an in rem action that

operates independently of the strictures of section 18-12 of the Probate Act. Comparing claims

for overdue support to mortgage foreclosure actions, Anita cites the holding of the First District

in Financial Freedom v. Kirgis, 377 Ill. App. 3d 107, 127 (2007), that an action to foreclose a

mortgage, being an action in rem, is not subject to section 18-12. In so holding, the Financial

Freedom court relied on two supreme court decisions, Markus v. Chicago Title & Trust Co., 373

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Ill. 557, 561 (1940), and Waughop v. Bartlett, 165 Ill. 124, 129-30 (1896), which held that a

foreclosure action is an in rem proceeding. Anita fails to acknowledge, however, that the

supreme court’s decision in ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526, 538

(2010), overruled Markus, Waughop, and Financial Freedom and held that foreclosure actions

are quasi in rem, not in rem, proceedings. In its reply brief, the Estate points out the omission,

yet in her reply brief in support of her cross-appeal, Anita does not explain or even recognize her

omission. We do not know whether her failure to acknowledge ABN AMRO was deliberate or,

as the Estate charitably characterizes it, a “critical mistake.” Whatever the case, we admonish

Anita’s counsel that reliance on a decision without disclosure that it has been overturned is

simply unacceptable.

¶ 30 As Anita provides no authority apart from Markus, Waughop, and Financial Freedom for

her notion that proceedings for overdue child support are in rem proceedings, we reject her

contention.

¶ 31 In conclusion, we hold that section 510(e) of the Marriage Act applies to Anita’s claim

against the Estate for overdue child support. Under section 18-12(b) of the Probate Act, which

section 510(e) incorporates, Anita’s claim is untimely and, consequently, barred. Therefore, the

trial court erred in granting Anita’s motion to reconsider its dismissal of her petition. Since our

decision on this issue is dispositive of this appeal, we need not address the Estate’s remaining

contentions of error. Also, our decision moots Anita’s cross-appeal of the trial court’s decision

denying her request for attorney fees in connection with her claim against the Estate.

¶ 32 We note that the court had originally stayed the dismissal of Anita’s petition “for 60 days,

pending the filing of a new action to foreclose any lien claimed by [Anita].” As Anita’s claim

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for overdue support falls under, and is categorically foreclosed by, section 510(e) of the Marriage

Act, we direct the court on remand to enter a dismissal with prejudice.

¶ 33 III. CONCLUSION

¶ 34 For the foregoing reasons, we reverse the judgment of the circuit court of Du Page

County and remand this case for the court to dismiss with prejudice Anita’s petition for overdue

child support.

¶ 35 Reversed and remanded with directions.

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