Non-Modifiability of Vested Child Support

Child support payments that have already become due to the recipient pursuant to the terms of the judgment are vested in favor of the recipient party and are subject to “modification” only by the consent of the recipient party. IMDMA §501(a) provides for the modification of child support payments accruing subsequent to the filing of a petition for modification and giving due notice thereof to the responding party. The concept of non-modifiability of vested child support payments is further entrenched by the provision of §505(d) that each child support installment or payment is deemed to be a “judgment” entered as of the date the particular child support payment became due under the terms of the order for support or judgment.

Sections 510(a) and 505(d) combine to give each child’s support payment the status of a final, non-modifiable, and enforceable judgment in favor of the recipient party. As a “final judgment,” the vested and unpaid child support installment bears interest at the statutory rate under 735 ILCS 5/2-1303 (currently nine percent per anum) commencing 30 days fro the effective date of the “final judgment” as provided in 735 ILCS 5/12-109. The non-modifiable judgment status of vested child support payments places the onus on the obligor parent to follow the statutory procedure for seeking a modification of child support rather than resorting to self-help in unilaterally reducing or discontinuing payment of child support without first obtaining court approval.

A plethora of case law in Illinois upholds the principle that once a child support payment has accrued it becomes a non-modifiable vested right in favor of the recipient party. See e.g., Finley v. Finley, 81 Ill.2d 317, 410 N.E.2d 12, 43 Ill.Dec. 12 (1980). The application of this principle can indeed have harsh results when the obligor parent is unable to comply with the child support provision by reason of involuntary circumstances. In re Marriage of Jobe, 151 Ill.App.3d 998, 503 N.E.2d 1146, 105 Ill.Dec. 140 (4th Dist. 1987), held that the obligor father’s child support obligation could not be suspended retroactively to the time he became disabled; rather, the suspension of the child support obligation was from the time the father filed a motion for modification by reason of his disability.

Similarly, a support obligation cannot be imposed retroactively to cover a period prior to the filing of a petition for modification. For example, when an obligor parent’s child support obligation has been suspended due to disability, suspended child support obligations cannot be imposed after the disability has ended until a subsequent order is entered reinstating that obligation pursuant to a petition for modification. Rodgers v. Rodgers, 118 Ill.App.3d 334, 454 N.E.2d 1153, 73 Ill.Dec. 904 (5th Dist. 1983). When child support has been suspended or abated, it is not uncommon for the court to monitor the period of suspension or abatement, place an affirmative duty on the obligor parent to notify the court when the basis for the suspension or termination has ended, and include in the modification order provisions that are self-executing in reestablishing the child support obligation.

With the enactment of IMDMA §505.1, the court may take a more active and continuing role in monitoring the obligor parent’s progress in obtaining employment to satisfy the obligation to provide child support. Any order issued by a court suspending or abating child support by reason of an obligor parent’s unemployment should necessarily contain a provision requiring that party to actively seek employment and to periodically report (and document) progress to the court. The requirement for periodic reports provides the court with ongoing authority to continue jurisdiction of the child support issue and provides it with a basis for awarding retroactive child support back to the date employment was obtained by the obligor parent even if the recipient parent had not filed a petition to modify the prior order. People ex re. Williams v. Williams, 191 Ill.App.3d 311, 547 N.E.2d 727, 138 Ill.Dec. 560 (4th Dist. 1989). Previously, when a support obligation had been suspended due to the obligor parent’s unemployment, any subsequent modification was applied only prospectively from the filing of the petition for modification. In re Marriage of Boyden, 164 Ill.App.3d 385, 517 N.E.2d 1144, 115 Ill.Dec. 458 (2d Dist. 1987).

While the principle of non-modifiability is widely accepted, it would appear that the courts are deciding the non-modifiability issue on a case-by-case basis, with the equities of the factual circumstances being determinative of whether the vested rights approach is to be strictly applied. Johnston v. Johnston, 196 Ill.App.3d 101, 553 N.E.2d 93, 142 Ill.Dec. 743 (4th Dist. 1990), provided that the doctrine of equitable estoppel could be asserted as a defense to the obligor parent’s liability for past-due child support notwithstanding that a petition for modification was not filed.

In this case, one of the parties’ children resided on a full-time basis with the obligor parent under a written agreement between the parties that the recipient parent would not expect child support from the obligor parent, and the obligor parent did in fact support the child in his custody. The parties’ other remaining unemancipated child continued to reside with the recipient parent, and the obligor parent did not pay any child support for the child remaining in the custody of the recipient parent but ruled that the obligor parent was not responsible for the child support attributable to the child in his custody and that the recipient parent was equitably estopped from asserting any claim to child support for that child. In so ruling, the court based its application of the doctrine of equitable estoppel on the facts that the subject child was in the actual custody of the obligor parent on a permanent basis, the child’s right of support was not infringed as the obligor parent actually supported that child, the recipient parent had led the obligor parent to believe that he did not need to provide support for that child, and the recipient parent would be getting a windfall for support she did not actually furnish.

The doctrine of equitable estoppel was likewise applied in In re Marriage of Webber, 191 Ill.App.3d 327, 547 N.E.2d 749, 138 Ill.Dec. 582 (4th Dist. 1989), in which the recipient parent was denied a judgment for unpaid “court-ordered” child support that had accrued during a time for which the child in question was in the actual custody of the obligor parent even though there was a dispute as to whether the recipient parent had agreed that the obligor parent would be not required to furnish support while that child was in the obligor’s actual custody. In both cases, the threshold question was whether the child support arrearage was in fact vested and therefore not subject to modification without the filing of a petition pursuant ot IMDMA §510.

The Fifth District considered this same issue in a case in which the obligor parent filed a petition for modification requesting termination of the child support obligation after learning later that the minor child had not resided with the recipient parent on a permanent basis for several months. Meyer v. Meyer, 222 Ill.App.3d 357, 583 N.E.2d 716, 164 Ill.Dec. 800 (5th Dist. 1991). In reversing the trial court’s holding that the obligor parent owed an arrearage and was required to continue child support, the appellate court stated that the obligor parent’s child support obligations had automatically ended by operation of law under IMDMA §510(d) upon emancipation of the child and, since no child support installments accrued from the effective date of the child’s emancipation, none could become vested in favor of the recipient parent.

In Meyer, the minor child’s emancipation was established by his permanent residency away from the recipient parent, his enrollment in the Job Corps, and his establishment of a separate residence demonstrating an intention and desire to remain independent of his parents notwithstanding the fact that the child had not attained the age of majority. Unless otherwise agreed in writing or expressly provided for in the judgment provisions for the support of a child are terminated by emancipation of the child. DMA §510(d)

When there is a judgment for unallocated maintenance and child support, the recipient parent remarries, and the right to maintenance is consequently terminated under IMDMA §510(c), the court can retroactively modify the unallocated maintenance and child support payment from the date of remarriage by terminating the maintenance portion of the unallocated sum and determining the child support payment effective from that date and is not restricted to modifying the award only from the date the obligor parent filed a petition for modification. In re Marriage of Erickson, 136 Ill.App.3d 907, 483 N.E.2d 692, 91 Ill.Dec. 346 (2d Dist. 1985). In Erickson, the trial court implicitly divided the hybrid order of unallocated child support and maintenance, then terminated the maintenance portion of that order under IMDMA §510(c) and entered the modified support provision effective as of the date of the recipient party’s remarriage. A subsequent First District case, In re Marriage of Hawking, 240 Ill.App.3d, 608 N.E.2d 327, 181 Ill.Dec. 254 (1st Dist. 1992), stands for the proposition that an order may not be retroactively modified prior to service of notice of a petition to modify. That case, however, did not comtemplate the payment of continuous child support. It was restricted to its facts in In re Marriage of Campbell, 252 Ill.App.3d 653, 624 N.E.2d 1230, 191 Ill.Dec. 852 (1st Dist. 1993).

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