Babcock v. Martinez

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Babcock v. Martinez

State: Illinois

Court: 4th District Appellate

Docket No: 4-05-0662 Rel

Case Date: 10/23/2006

Preview:NO. 4-05-0662 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT LINDA BABCOCK, Petitioner-Appellee and Cross-Appellant, v. RICARDO MARTINEZ, Respondent-Appellant and Cross-Appellee. ) ) ) ) ) ) ) )

Filed: 10/23/06

Appeal from Circuit Court of Macon County No. 03F466 Honorable Albert G. Webber, Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court: As part of a marital settlement agreement, respondent, Ricardo Martinez, agreed to allow petitioner, Linda Babcock, to have custody of their children and to pay a percentage of his net monthly income as child support. The settlement agreement was incorporated into the final judgment of dissolution entered in Cook County, Illinois, in 1987. Two months later, Ricardo moved to the state of Kansas. In 1988, Linda sought enforcement of the support order pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) (Ill Rev. Stat. 1987, ch. 40, par. 1201 et seq.). In April 1988, the Kansas court entered an order, ordering Ricardo to pay $200 per month as child support. In May 1988, the Kansas court increased the monthly support amount to $300. The support payments were automatically deducted from Ricardo's pay. Sixteen years later, in January 2004, Linda filed a petition to increase child support and for payment on arrearages. The trial court held that the Kansas support order did not supersede or modify the original Illinois judgment, and as such, Ricardo had fallen into arrearages in the payment of support in the amount of $92,159.91. He appeals from that order. Because we find the doctrine of equitable estoppel prevented Linda from collecting the arrearage, we reverse the court's

order and remand for further proceedings. I. BACKGROUND Linda and Ricardo were married in Macon County, Illinois, in 1984. They had one son, Ricardo, Jr. (date of birth January 19, 1985). On June 25, 1987, a judgment of dissolution of marriage was entered in Cook County. Linda was pregnant at the time of the dissolution and later, on October 18, 1987, gave birth to the parties' second son, Steven. In August 1987, Ricardo moved to Kansas. On October 29, 2003, Linda filed a petition for registration of the Cook County judgment of dissolution. A copy of the judgment was attached to Linda's petition. The final judgment incorporated a written settlement agreement that awarded custody of the children to Linda subject to Ricardo's visitation rights of "reasonable frequency and for reasonable periods of time." According to the settlement agreement, Linda was represented by counsel and Ricardo was not. The agreement specified that Ricardo was to pay Linda maintenance in "a sum equal to 5% of his net income" for two years or until Linda secured full-time employment, whichever occurred first. Ricardo was to also pay Linda child support in an amount equal to 30% of his net income, "to be increased by 5% for each additional child born to [Linda] as a result of the marriage." Ricardo was to pay all of the children's medical and dental expenses and maintain "such employersponsored group health insurance as may be available" and maintain life insurance with the children as beneficiaries. Ricardo was to "pay all educational expenses of the minor children" as well as "all attorney's fees and costs of this action." On January 6, 2004, the Illinois Department of Public Aid, on Linda's behalf, filed a (1) petition to increase Ricardo's child-support obligation due to Ricardo, Jr.'s enrollment in college. Linda also requested that child support be designated as a fixed amount rather than as a percentage of Ricardo's

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net income. Linda also filed a petition to establish payment on Ricardo's child-support arrearage. On March 30, 2004, Ricardo filed a request to admit, asking Linda to admit or deny the genuineness of certain documents attached to the request. The attached documents included what appeared to be payment records of a history of Ricardo's child support as maintained by a child support enforcement agency in Leavenworth, Kansas. Also included in the attached documents was an order dated May 2, 1988, entered by a district judge in Leavenworth, ordering Ricardo to pay $300 per month in child support for both children. We discern from the record that the Kansas order was the result of a 1988 motion filed by Linda in Macon County case No. 88-F-137, requesting Kansas's assistance in enforcing the Cook County judgment. On April 1, 2004, Ricardo filed a response to Linda's petitions, claiming (1) the Cook County judgment that ordered him to pay a percentage of his net income to Linda as child support was invalid, and (2) Macon County should not "reassume" jurisdiction of Linda's petition to modify because the Kansas court's order already modified the Cook County judgment and was being enforced pursuant to RURESA. On April 12, 2004, Ricardo filed another request to admit listing the amount of child support he claimed was due and the amounts he had paid during specified time frames. Linda did not respond to either request to admit. On April 26, 2004, Ricardo filed a motion for partial summary judgment, claiming that, based upon the undisputed facts, Ricardo was not in arrears as a matter of law and, in fact, had paid more than the amount of support due. On June 4, 2004, on Ricardo's motion, the trial court consolidated Macon County case Nos. 88-F-137 and 87-F-1042 with the current case. The significance of those cases will be discussed below. On June 18, 2004, the State filed a petition to collect maintenance arrearages, claiming

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Ricardo had not paid maintenance pursuant to the Cook County judgment in the amount of 5% of his net income for the two years following the entry of the final judgment. On July 14, 2004, Linda filed a motion for summary judgment arguing the Kansas support order did not modify the Cook County judgment and thus Ricardo had a child-support arrearage. On July 27, 2004, Linda filed a petition seeking reimbursement from Ricardo for Ricardo, Jr.'s educational expenses. On August 30, 2004, the trial court conducted a hearing on the parties' cross-motions for summary judgment, reserving argument on Linda's motion for educational support until November 9, 2004. Ricardo argued that the provisions of the Cook County judgment (specifying his child-support obligation as a percentage and not a fixed amount) did not "correspond with the guidelines in any way." According to Ricardo's motion, in 1987, without registering the Cook County judgment, Linda brought an action in Macon County (No. 87-F-1042). As a result of that action, a Leavenworth County, Kansas, case was commenced (No. 88-R-101) as a reciprocal support action pursuant to RURESA. In April 1988, the Kansas court, after finding that it had jurisdiction over the parties and the subject matter, ordered Ricardo pay $200 per month in child support. That Kansas order involved Ricardo, Jr., only. In 1988, Linda brought another action in Macon County (No. 88-F-137) again seeking child support, but this time for both children. In May 1988, the Kansas court ordered Ricardo to pay $300 per month as support for both children. The payments were deducted automatically from Ricardo's pay for almost 17 years. Thereafter, Linda filed the current 2003 action seeking registration and enforcement of the Cook County judgment. Ricardo argued that the "first legitimate order in this case was the Kansas order" because, according to Ricardo, Illinois prohibits the designation of child support as a percentage. He claimed the Cook County judgment was not enforceable for that reason, and judgment should be entered in his favor as he has fully complied with the Kansas order for the past 16 years.

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In response to Ricardo's argument, Linda argued that the Cook County judgment should be enforced with Ricardo receiving credit for the payments made pursuant to the Kansas order. Linda asked the trial court to calculate the amount of child support Ricardo should have been paying since 1987 based upon 35% of his net income as set forth in the Cook County judgment. On October 13, 2004, the trial court granted summary judgment in Linda's favor on the issues relating to past-due child support, relying on the fact that the Cook County judgment incorporated an agreement between the parties. The court also found that RURESA did not allow the Kansas orders to supercede and lower the amount of support owed under the Cook County order. The court held the 1987 Cook County order was enforceable and the parties were directed to calculate the amount of arrearage owed by Ricardo for support. The arrearage should represent the difference between the amount due pursuant to the Cook County order and the amounts Ricardo paid pursuant to the Kansas orders. The court found that Linda's pursuit of maintenance was time barred and entered summary judgment in Ricardo's favor on that issue. On November 5, 2004, Ricardo filed a motion for reconsideration or for clarification of the October 13, 2004, order. On January 27, 2005, Ricardo filed a motion for judgment on the pleadings, claiming Linda's failure to respond to the April 12, 2004, request to admit, by operation of law, deemed the averments therein admitted. On January 27, 2005, the trial court conducted a hearing on all pending matters. Linda testified that she resided in Decatur, Illinois, with her current husband (whom she married in July 1988) and Steven, who was 17 years old at the time. Linda testified that she had received child-support payments through the "State Disbursement Unit of Illinois" from Kansas, but had never received any payments toward the children's medical bills. According to Linda, Ricardo had never met his son Steven and had not seen his son Ricardo, Jr., since the child was 2 1/2 years old. Linda testified that she did not have an

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address or phone number with which to communicate with Ricardo when he moved to Kansas. On cross-examination, Linda said she had an address for Ricardo in Kansas in 1988 "[a]nd a couple other times, but other than that, [she had] always called directory assistance long distance, and his number ha[d] always been unlisted." In 1988, while she was pregnant with Steven, Linda drove to Kansas and found Ricardo. In 1993, she placed an advertisement in the newspaper in Kansas and he responded. She denied that she told him in 1993 that she did not want anything from him for the children. (Ricardo's testimony differs.) In 2003, Linda wrote Ricardo a letter indicating that she would not seek "back support for the 35 percent of net" if he helped her, but he declined. Linda said she "tried every month" to collect more money from Ricardo while he was paying pursuant to the Kansas order. Ricardo testified as an adverse witness that he resided with his current wife, 18-year-old stepson, and 12-year-old daughter. He moved to Kansas in August 1987. He had worked at the Lansing Correctional Facility from September 1987 until August 2002. When Ricardo left his employment, he accepted a pension buyout in the approximate amount of $20,000. Ricardo said that except during a few "brief periods," he had worked two jobs during the past 20 years. He had been with his current employer, Ree's Contracting, since February 2003. According to his W-2, Ricardo earned approximately $51,000 in 2004. His wife was the deputy warden's secretary for Lancing Correctional Facility. Ricardo testified that he and his current wife's gross income was $80,587 in 2001; $123,790 in 2002; and $73,216 in 2003. Upon questioning by his counsel, Ricardo testified that prior to the entry of the Kansas order, he had mailed child-support checks directly to Linda, though he did not testify to the amount of each check sent. When the Kansas order was entered, he assumed the $300 was the set amount in full that he had to pay. The amount was reduced to $150 when Ricardo, Jr., turned 18 years old. Ricardo said he never had health insurance on the children and never received any medical bills for them. He added the children to his health insurance for the first time in October 2004.

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Ricardo testified that had he known the Cook County judgment would be enforced, he would have tried to modify it "a long time ago." He said he had lived at the same address in Kansas since February 1992. After Linda's August 1987 visit to Kansas, he did not see her again. Soon thereafter, Ricardo's mother informed him of the advertisement Linda had placed in the newspaper. His mother gave Ricardo the address and he wrote to the children. A few weeks later, Ricardo received photographs and a letter from each of the children and one from Linda. Linda asked Ricardo not to contact the children anymore as it "`causes too many problems.'" According to Ricardo, Linda told him she did not need anything from him, she was remarried, and her new husband was considering adopting the children. She would contact him about that at a later date. At the close of the evidence, the trial court took the matter under advisement. On March 8, 2005, the trial court, by docket entry, ordered Ricardo to pay Linda $802.76 per month as current child support ($400) and payment toward his arrearage ($402.76) of $92,159.91. He was also ordered to reimburse Linda for the children's medical expenses in the amount of $200 per month toward the total due of $8,257.76. The court denied Linda's petition for educational support, finding Ricardo was financially unable, due to the amounts ordered to be paid on child support and arrearages, to contribute to Ricardo, Jr.'s educational expenses. On March 29, 2005, Ricardo filed a motion for reconsideration and clarification on the child-support order. On June 27, 2005, the trial court conducted a hearing on Ricardo's motion. The court took the matter under advisement and on July 5, 2005, denied Ricardo's motion for reconsideration or clarification. This appeal followed. II. ANALYSIS A. Effect of Kansas Order First, Ricardo claims the trial court erred in ruling that the Kansas order did not supercede

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the Cook County judgment. He claims the court in Illinois, via its transmittal order, requested the court in Kansas to establish a new child-support order, not to simply enforce the judgment previously entered. Ricardo also argues it was evident that the Kansas order established a new and enforceable order because the provision in the Cook County judgment ordering child support as a percentage of Ricardo's income was invalid. This is a question of law, and therefore we will conduct a de novo review. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998). Our supreme court has addressed the issue of the legal effect of child-support provisions designated in terms of percentages rather then specific dollar amounts. See In re Marriage of Mitchell, 181 Ill. 2d 169, 692 N.E.2d 281 (1998). In Mitchell, the parties entered into a settlement agreement whereby the husband was obligated to pay child support to the wife in the monthly amount of $450 or 25% of the husband's net income, whichever was greater. Relying on the language of section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/505(a)(5) (West 2004)), both the trial court and the appellate court found the percentage provision in the agreement void and unenforceable. Mitchell, 181 Ill. 2d at 172-73, 692 N.E.2d at 283. Section 505(a)(5) states that "the final order [for child support] in all cases shall state the support level in dollar amounts." 750 ILCS 5/505(a)(5) (West 2004). Construing the language of this statutory section, the supreme court held that child-support orders must be expressed in terms of dollar amounts and not as a percentage of net income. Mitchell, 181 Ill. 2d at 173, 692 N.E.2d at 283. Any judgment entered contrary to the statute (by ordering child support in the form of a percentage) was considered an erroneous judgment. However, such an order did not affect the court's jurisdiction to enter the order, and thus, the judgment was not void, but voidable. Mitchell, 181 Ill. 2d at 175, 692 N.E.2d at 284. The court stated:

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"It is enough to conclude here that the present order was voidable and not void under either our traditional mode of analysis or the view expressed in the Restatement [(Second) of Judgments

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