People Ex Rel. Wray v. Brassard

589 N.E.2d 1012, 226 Ill. App. 3d 1007, 168 Ill. Dec. 612, 1992 Ill. App. LEXIS 380
CourtAppellate Court of Illinois
DecidedMarch 19, 1992
Docket4-91-0281
StatusPublished
Cited by12 cases

This text of 589 N.E.2d 1012 (People Ex Rel. Wray v. Brassard) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People Ex Rel. Wray v. Brassard, 589 N.E.2d 1012, 226 Ill. App. 3d 1007, 168 Ill. Dec. 612, 1992 Ill. App. LEXIS 380 (Ill. Ct. App. 1992).

Opinion

JUSTICE LUND

delivered the opinion of the court:

On July 11, 1975, a decree of divorce was granted in the circuit court of Douglas County to Judith Brassard (now Wray) from defendant Richard Brassard. Custody of four minor children was awarded to Judith. Defendant was ordered to pay $60 per week as child support through the circuit clerk for the children, to begin July 21, 1975. After the entry of this decree, defendant moved to Arkansas; in 1980, he moved to Alabama; in 1983, he returned to Illinois. From July 21, 1975, to September 1989, defendant made no child support payments to the circuit clerk.

On July 20, 1989, the Illinois Department of Public Aid filed a petition for adjudication of contempt on behalf of Judith, asking that defendant be held in contempt of court for failure to comply with the divorce decree as to payment of child support. The petition sought a child support arrearage of over $44,000, plus attorney fees, costs, continued support, and sanctions. At the time of filing of the petition, three of the four children had attained the age of majority. At the initial hearing on the petition, defendant appeared pro se. He admitted he had been employed in various jobs since 1975 and that he had not paid any child support payments as ordered. At the conclusion of the hearing, the trial court found a child support arrearage of $44,340. It also found that defendant had the financial ability to pay $32,580 of that arrearage and that he was in indirect civil contempt of court. An order of withholding was entered for payment of current support. The question of sanctions was continued to a later hearing date.

Defendant then hired an attorney and filed a motion to vacate the judgment. That motion alleged that defendant had a meritorious defense to the petition, based upon the statute of limitations. The trial court allowed the motion and vacated the judgment.

Defendant filed a motion to dismiss the petition, alleging the five-year statute of limitations as set forth in section 13 — 205 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13—205) barred the collection of that portion of the arrearage accrued prior to July 20, 1984. The motion also alleged that no judgment based upon the July 11, 1975, decree could be entered, when that decree had not been revived within seven years of its entry, pursuant to section 6 of “An Act in regard to judgments ***” (Ill. Rev. Stat. 1981, ch. 77, par. 6) or section 2—1601 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—1601).

The trial court denied this motion and set the petition for hearing. Defendant filed a response to the petition in which he set forth affirmative defenses, alleging alternatively that payments accrued prior to July 20, 1984, were barred by the 5-year statute of limitations, that the 10-year statute of limitations (Ill. Rev. Stat. 1987, ch. 110, par. 13—206) barred collection of payments accrued prior to July 20, 1979, and that collection of all sums was barred due because the 1975 decree had not been revived within seven years. On July 9, 1990, after hearings and receiving arguments of counsel, the trial court found the statute of limitations was tolled while defendant resided outside the State of Illinois. It determined that when he returned to Illinois in 1983, the five-year statute of limitations began to run, expiring in 1988. The court found that collection of all support payments which had accrued prior to July 20, 1984, was barred by that statute. The court further found that the five-year limitations period would begin to run on each installment as it came due, thus barring collection of all installments which had accrued more than five years prior to the commencement of the action. A written order was required to be prepared, and the written order was entered on July 24, 1990. In the order, the circuit clerk was ordered to recompute defendant’s arrearage. The hearing on the petition was continued to the next month. Subsequently, that hearing was continued several times.

Plaintiff filed a motion to reconsider, alleging that the 1975 divorce decree was a money judgment and that the 20-year statute of limitations contained in section 13 — 218 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—218) applied, thus making all past-due payments subject to collection. This motion was denied in October 1990. Thereafter, plaintiff filed a motion asking the trial court to enter judgment in favor of Judith and against defendant for child support arrearage and to order payments on the arrearage.

Finally, at a hearing on February 14, 1991, defendant’s arrearage was established at $16,140. He was ordered to continue paying $60 per week in current support payments for the remaining minor child and $35 per week on the arrearage. He was further ordered to continue paying $95 per week on the arrearage once the minor child attained majority. The court directed a written order to be prepared, and it was entered on March 13, 1991. At plaintiff’s request, the trial court made the finding under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no just reason for delaying enforcement or appeal of the order. No order was entered as to possible sanctions against defendant for the contempt finding made earlier by the trial court, and the written order did not provide for a continued hearing for that purpose. Plaintiff now appeals, claiming the trial court erred as a matter of law in applying the five-year statute of limitations to the arrearage accrued prior to July 20,1984.

Before we reach the merits of this appeal, we must decide a jurisdictional question which has been raised and briefed by defendant. Plaintiff’s notice of appeal states the appeal is from orders of the trial court entered on July 9, 1990, October 26, 1990, and March 13, 1991. Defendant maintains we should dismiss this appeal as not being timely filed. He contends this is really an appeal of the trial court’s order of July 24, 1990, in which it found that collection of all child support arrearage accrued prior to July 20, 1984, was barred. At this point, defendant says that the court made a final determination of the monetary issues involved in the case. He points out that plaintiff filed a motion for reconsideration of that order which was denied on October 26, 1990. He believes plaintiff should have filed the notice of appeal of the July 24, 1990, order by August 23, 1990, and certainly no later than 30 days after the motion for reconsideration was denied. He points out that the court’s order of March 13, 1991, did not refer to its July 24, 1990, order finding that collection of the arrearage accrued prior to July 20, 1984, was barred. In fact, it recites an agreement between the parties as to the amount of the arrearage ($16,140) on which the judgment would be entered. However, we note the order does make reference to the fact that the judgment amount constitutes an arrearage accumulated since July 20, 1984. Plaintiff’s petition alleged an arrearage accrued from 1975, and the court initially found this allegation to be true. Therefore, the March 13, 1991, order implicitly referenced the prior order barring collection of some of the arrearage.

We find that plaintiff’s appeal is timely filed. While the trial court’s order of July 24, 1990, determined that some of defendant’s arrearage was not subject to collection, it did not make any finding as to the amount of the arrearage. Nor did it make any findings as to the issue of contempt.

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Cite This Page — Counsel Stack

Bluebook (online)
589 N.E.2d 1012, 226 Ill. App. 3d 1007, 168 Ill. Dec. 612, 1992 Ill. App. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-wray-v-brassard-illappct-1992.