March 2, 2001

No. 2--00--0005

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE RAPP delivered the opinion of the court:

Petitioner, Elena M. Mitchell, now known as Elena M. Bloomingdale, appeals the circuit court's order dissolving hermarriage to respondent, Kevin R. Mitchell. Petitioner contends that the court erred by (1) refusing to award her the fullamount of child support arrearages respondent allegedly owed; and (2) refusing to order respondent to exercise hisvisitation with the parties' children.

This was the second time the parties were married to each other. In April 1991, the circuit court of Ogle County dissolvedtheir first marriage. The decree awarded custody of the parties' two children to petitioner and ordered respondent to pay$73 per week as child support.

On February 14, 1992, the parties remarried each other. They apparently separated in May 1994. In 1999, petitioner soughtto dissolve the second marriage. The parties agreed to transfer the Ogle County case to De Kalb County and consolidate itwith this case. The court again awarded custody of the children to petitioner and ordered respondent to pay $96.60 perweek as child support.

Petitioner claimed a child support arrearage of more than $20,000. This figure included allegedly overdue paymentspursuant to the Ogle County decree of $73 per week until March 16, 1999, and $96.60 per week after that date. The courtfound an arrearage of $4,864.60. This amount included payments pursuant to the Ogle County decree until the parties'remarriage on February 14, 1992, as well as past-due payments under the current decree.

The court denied petitioner's motion to require respondent to exercise his visitation with the children. Instead, the courtordered respondent to pay for day-care costs when he did not exercise visitation. Petitioner filed a timely notice of appeal.

Petitioner first contends that the trial court erred in finding that child support did not continue to accrue pursuant to theOgle County decree during the parties' second marriage. Petitioner points out that child support payments become a vestedright of the receiving spouse as they become due and a court cannot modify them retroactively. Thus, because no petitionto modify child support was ever filed, the payments pursuant to the Ogle County decree continued to accrue. Petitionerfurther maintains that the public policy of assuring that children of divorced parents are provided with adequate support isso strong that even the parties' remarriage to each other should not be able to terminate the respondent's support obligation.

We note that respondent has not filed a brief in this court. However, we will consider themerits of the appealunder the standard set forth in First Capitol Mortgage Corp. v. TalandisConstruction Corp., 63 Ill. 2d 128 (1976).

Preliminarily, we note that the trial court awarded petitioner an arrearage forchild support payments that accrued prior to February 14, 1992, the date of theparties' remarriage. Respondent has not filed a cross-appeal to contest thisruling. Moreover, petitioner does not dispute the amount of the arrearage. Also,the parties do not question the propriety of combining the arrearages due from the first dissolution action and the temporarysupport order entered in this case and awarding both in a single order. Thus, we do not consider these issues.

It appears that the precise issue petitioner raises--whether child support ordered by a dissolution decree continues to accrueafter the parties remarry each other--is one of first impression in Illinois. In Davis v. Davis, 68 Cal. 2d 290, 437 P.2d 502,66 Cal. Rptr. 14 (1968), the California Supreme Court rejected this contention, holding that the wife could not enforce thechild support provisions of a prior divorce decree as to payments that accrued after the parties remarried each other. Davis,68 Cal. 2d at 291, 437 P.2d at 502-03, 66 Cal. Rptr. at 16. The court noted that this holding was consistent with the goal ofreestablishing the family unit for the benefit of both the parties and the children. Davis, 68 Cal. 2d at 293, 437 P.2d at 504,66 Cal. Rptr. at 16; see also Griffis v. Griffis, 202 W. Va. 203, 215, 503 S.E.2d 516, 521 (1998) (parties' remarriageautomatically terminated future child support installments but did not nullify arrearage for payments past due at time ofremarriage).

Petitioner does not cite Davis or Griffis, but argues that the trend of recent cases is to reject the conclusion that a priordivorce or dissolution decree becomes unenforceable after the parties to it remarry each other. To resolve this issue, wemust examine those cases in some detail.

In Ringstrom v. Ringstrom, 101 Ill. App. 3d 677 (1981), the Fourth District reiterated the well-established principle thatwhen divorced parties remarry each other the prior decree is void. Ringstrom, 101 Ill. App. 3d at 679. The court went onto hold that, upon their remarriage, the parties are restored to their rights as if they had never been divorced. Ringstrom,101 Ill. App. 3d at 680-81. As a result, the wife could not collect even support payments that had become due prior to theremarriage. Ringstrom, 101 Ill. App. 3d at 679.

In re Marriage of Parks, 258 Ill. App. 3d 479 (1994), the court attempted to clarify Ringstrom's holding. The specific issuethere was the husband's obligation pursuant to the first decree to pay the wife $5,000 as maintenance in gross. The courtstated that a careful reading of Ringstrom revealed the holding to be that the prior decree is not "void," but merelyunenforceable. Parks, 258 Ill. App. 3d at 482. The court noted that most of the earlier reported cases involved issues ofchild custody and support and deemed it "sensible that the remarriage of parties to a divorce nullif[ies] the prior divorcedecree with respect to child custody and child support." Parks, 258 Ill. App. 3d at 483. The court explained that in the caseof child support, "upon the remarriage of the parties, they are restored to their rights and obligations as if never divorced,and there is no further obligation to pay child support under the divorce decree." Parks, 258 Ill. App. 3d at 483.

Parks held that issues involving maintenance and property rights were different and, as to those issues, the parties'subsequent remarriage merely rendered unenforceable the prior decree. Thus, "with respect to provisions of the divorcedecree which have not been fully executed, upon remarriage of the parties, no action may be brought to enforce thoseprovisions." Parks, 258 Ill. App. 3d at 484. Such a result was appropriate, the court said, to prevent parties "who havechosen to begin marriage anew from squabbling in court about their respective failings under the prior divorce decree." Parks, 258 Ill. App. 3d at 484. The court did state, however, that its holding did not necessarily preclude the wife fromraising the issue in the second divorce action, which apparently was pending under another case number. Parks, 258 Ill.App. 3d at 485.

Because Parks involved alimony in gross, the court had no reason to distinguish between installments of support ormaintenance that were due to be paid before the remarriage and those that were not due until after the remarriage. In In reMarriage of Root, 774 S.W.2d 521 (Mo. App. 1989), the court squarely faced this distinction. Noting that state lawdeemed overdue child support payments a judgment in favor of the receiving spouse, the court held that the trial court erredin barring the wife from collecting child support installments that had become due before the parties remarried each other. Root, 774 S.W.2d at 527.

In discussing earlier cases, Root distinguished Davis but clearly approved of its holding that the wife could not recoversupport installments that would have been due after the remarriage. The court stated:

"It would be absurd to hold that once parents remarry each other and the family is again intact and residing in the samehousehold, the former noncustodial parent must pay future installments of child support to the other parent per the pastdivorce decree. That is to say, the remarriage should terminate the former noncustodial parent's duty to pay any childsupport that would have become due after the remarriage." (Emphasis in original.) Root, 774 S.W.2d at 523.

In Schaff v. Schaff, 446 N.W.2d 28 (N.D. 1989), the parties to a paternity decree subsequently married. The court treatedthe paternity case as equivalent to a prior divorce action between the parties and held that their marriage nullifed the priordecree, at least as to future installments of child support. Schaff, 446 N.W.2d at 31. The court explained the rationale thatparties who marry no longer have separate rights of custody or support and recited the above-quoted passage from Root. Schaff, 446 N.W.2d at 31. In a footnote, the court referred to the conflict between Root and Ringstrom regarding supportinstallments accruing before the remarriage, but declined to resolve the issue because the wife was not making a claim forpast-due support. Schaff, 446 N.W.2d at 31 n.5; see also Griffis, 202 W. Va. at 214, 503 S.E.2d at 521.

It is thus true, as petitioner argues, that Root "rejected Ringstrom," but only to the extent that Ringstrom held that the wifecould not recover support installments that accrued before the remarriage. We agree with Davis, Root, Schaff, and Griffisthat it would be undesirable to hold that parties to a divorce decree who later remarry may continue to enforce provisions ofthe prior decree against each other. All of the above cases, despite their sometimes discordant holdings, make clear thatparties, once married, can thereafter either be married to each other or divorced from each other; they cannot be both at thesame time. Parties who choose to remarry cannot continue to enforce selected provisions of the prior decree relating tochild custody and support. To do so would inevitably create friction in the marriage, and any attempt by a court to enforcesuch a right would likely be viewed as an unwarranted governmental interference in the marital relationship.

Petitioner observes, however, that Illinois law provides that past-due child support payments are a vested right of thereceiving spouse (In re Marriage of Johnson, 106 Ill. App. 3d 502, 512 (1982)) that cannot be modified by the courtretroactively (In re Marriage of Henry, 156 Ill. 2d 541, 544 (1993)). This merely begs the question because callingsomething a vested right implies the existence of an enforceable obligation to begin with. Because the prior decree isunenforceable as to installments accruing after the parties' remarriage, the receiving spouse cannot have a vested right tothose payments. Here, the court awarded petitioner an arrearage for the payments that were due before the remarriage andrespondent is not challenging that ruling. Petitioner cannot claim a vested right in payments rendered unenforceable by theparties' remarriage.

Petitioner further contends that this state's interest in ensuring that children of broken marriages are adequately provided foris so strong that it justifies abrogating the usual rule that a prior dissolution decree may not be enforced after the partiesremarry. When divorced parties remarry, the general obligations to support one's family again apply. See Parks, 258 Ill.App. 3d at 483; Davis, 68 Cal. 2d at 292, 437 P.2d at 503, 66 Cal. Rptr. at 15. When parties remarry, they agree to look toeach other for the support of themselves and their children. Parties who remarry should not be placed in a differentsituation than parties who have not been previously married and divorced.

We are aware that in this case the parties were separated for much of their second marriage and thus the presumption thatpeople living under the same roof will support each other and their children does not necessarily apply. However,petitioner could have filed an action for dissolution or separate maintenance at any time. Her failure to do so does notjustify allowing her to invoke selected provisions of the prior decree.

The trial court's order setting the child support arrearage is affirmed.

Petitioner also contends that the trial court erred in denying her petition to require respondent to exercise his visitation withhis children. This, too, appears to be an issue of first impression in this state.

The Illinois Marriage and Dissolution of Marriage Act (the Act) provides that a "parent not granted custody of the child isentitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously thechild's physical, mental, moral or emotional health." 750 ILCS 5/607(a) (West 1998). However, petitioner cites noprovision of the Act that authorizes a court to require the noncustodial parent to exercise visitation. The dissolution of amarriage and related matters are entirely statutory in origin. Henry, 156 Ill. 2d at 544. Therefore, we are reluctant to readinto the statute a remedy that the legislature did not specifically authorize.

Our research has not revealed any case addressing this precise issue. In general, the Act requires the trial court to determinecustody with regard to the best interests of the child. 750 ILCS 5/602(a) (West 1998). Visitation is a form of custody. Inre Marriage of Fields, 283 Ill. App. 3d 894, 901 (1996). At least one court has observed that visitation is primarily the rightof the child and only incidentally that of the visiting parent. In re Marriage of Oswald, 847 P.2d 251, 254 (Colo. App.1993). Visitation should not be used to penalize or reward parents for their conduct. In re Marriage of Solomon, 84 Ill.App. 3d 901, 908 (1980).

In spite of these admonitions, while some courts have upheld the rights of parents to enforce visitation with their children(see, e.g., In re Marriage of Marshall, 278 Ill. App. 3d 1071 (1996)), we are aware of no case that has recognized areciprocal right of children to enforce visitation with a parent. The comments to the Uniform Marriage and Divorce Act, onwhich Illinois' Act is based, state, without elaboration, "Although the judge should never compel the noncustodial parent tovisit the child, visitation rights should be arranged to an extent and in a fashion which suits the child's interest rather thanthe interest of either the custodial or noncustodial parent." Uniform Marriage & Divorce Act