People Ex Rel. Meyer v. Nein

568 N.E.2d 436, 209 Ill. App. 3d 1087, 154 Ill. Dec. 436, 1991 Ill. App. LEXIS 451

• Court: Appellate Court of Illinois
• Decided: February 28, 1991
• Docket: 4-90-0459
• Status: Published

Opinions

PRESIDING JUSTICE LUND

delivered the opinion of the court:

The question in this case is whether a trial court can reduce child support payments because the obligor has been incarcerated and, as a result, has lost his income for conduct unrelated to the dissolution action. We find no authority in Illinois case law, but conclude the trial court has such authority.

Respondent Larry Nein was ordered to pay child support by an order entered subsequent to the dissolution judgment. He was subsequently sentenced to jail for several months, and he petitioned for modification of the payments. At the time of the petition, he was in arrears in support payments. The child support payments were suspended by the trial court for the period of incarceration. The Illinois Department of Public Aid (Department), intervener, appeals.

A petition to modify child support (Ill. Rev. Stat. 1989, ch. 40, par. 510) must be decided on the facts of each case, and the decision rests within the sound discretion of the trial court. See In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 330, 547 N.E.2d 749, 751.

The Department would have us say that one convicted of any offense lacks clean hands, and that person should never be able to seek a modification of child support payments due to the resulting incarceration by using the equitable powers of the court. Our supreme court has stated:

“The maxim of coming into court with clean hands does not go so far as to prohibit a court of equity from giving its aid to a bad or faithless man or a criminal. The misconduct must be in the transaction complained of. If one is not guilty of inequitable conduct toward the defendant in the transaction in litigation his hands are as clean as the court can require.” Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 243, 148 N.E.2d 727, 730.

We decline to adopt the position advanced by the State. What happens when one without assets, paying child support for a young child, is incarcerated ■ for 10 or more years? The State relies on Ohler v. Ohler (1985), 220 Neb. 272, 369 N.W.2d 615. There, the court affirmed dismissal of a petition to modify for failure to state a cause of action, although the movant was sentenced to 15 years’ incarceration and had no other assets. Having considered all of the authorities from other States, we agree with the Pennsylvania court, which compared incarceration to an involuntary loss of employment (Leasure v. Leasure (1988), 378 Pa. Super. 613, 616, 549 A.2d 225, 227; accord Peters v. Peters (Ohio Ct. App. 1990), 69 Ohio App. 3d 275, 276, 590 N.E.2d 777,); we also agree, however, that incarceration, as a foreseeable result of criminal activity, does not ipso facto relieve one of the obligation to pay child support (Division of Child Support Enforcement ex rel. Harper v. Barrows (Del. 1990), 570 A.2d 1180, 1183 (and cases cited therein)). Decisions on modification, when questions of this type appear, are best left to the discretion of the trial court. This view is consistent with the decisions of the courts of other States, apart from the decision in Ohler; and the exercise of that discretion has generally been guided by principles summarized in Barrows:

“We have found no jurisdiction which currently suspends or discharges child support obligations if an affirmative showing has been made that an incarcerated support obligor has available assets.⁸

In this case, we have only the common law record before us and no transcripts of or bystander’s reports (107 Ill. 2d R. 323(c)) on hearings held. Deficiencies in the record must be resolved against the appellant. On the basis of this record, we conclude the trial court’s decision was not against the manifest weight of the evidence.

Affirmed:

GREEN, J., concurs.

8 See Clemans v. Collins, 679 P.2d 1041, 1042 (Alaska 1984) (court remanded to decide if incarcerated, obligated parent has available assets to meet child support payments); In re Marriage of Vetternack, 334 N.W.2d 761, 763 (Iowa 1983) (equity in home reduced to pay support obligation); Noddin v. Noddin, 455 A.2d at 1053 (child support should not be reduced ‘where his own conduct has resulted in his loss of high-earning employment and he has at least one valuable asset’); Pierce v. Pierce, 162 Mich. App. 367, 412 N.W.2d 291, 293 (1987) (assets may be applied to meet child support obligation during incarceration); Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867, 869 (1984) (incarcerated parent not liable for child support unless it is affirmatively shown that assets are available, but that it would be inequitable to force the wife/mother to sell the home to meet the father’s obligation); Edmonds and Edmonds, 53 Or. App. 539, 633 P.2d 4, 5 (1981) (no liability without affirmative showing of assets); Leasure v. Leasure, 549 A.2d at 227 (no obligation for incarcerated parent to pay child support ‘unless that parent possesses another asset from which funds could be generated.’). Two jurisdictions have continued a prior support obligation even when no assets are available. See Ohler v. Ohler, 369 N.W.2d at 618 (incarcerated parent comes to equitable divorce and support hearing with ‘unclean hands’). *** All jurisdictions agree that if the obligor entered prison for non-payment of child support or to deliberately avoid the support obligation, no reduction or discharge will be permitted and the arrearages will simply increase regardless of whether assets are available. See, e.g., Foster v. Foster, 471 N.Y.S.2d at 869; Edmonds and Edmonds, 633 P.2d at 6; Leasure v. Leasure, 549 A.2d at 227.” Barrows, 570 A.2d at 1183 & n.8.