Petition and Notice

A temporary child support order may be revoked or modified before final judgment upon a showing by an affidavit and upon hearing as provided in IMDMA §501(d)(2). Modification of temporary child support involves the filing of a petition requesting modification accompanied by affidavit demonstrating a factual basis for the modification and notice, which is essentially the same procedure used in initiating a proceeding for temporary child support. See §4.84 below for a sample petition.

A post-judgment proceeding to enforce or modify child support is governed procedurally by the provisions of IMDMA §511. Modification or enforcement of child support must be sought by petition, which is a formal request or application made in writing requesting judicial action. Benton Coal Mining Co. v. Industrial Commission, 321 Ill. 208, 151 N.E. 520, 523 (1926). The relief sought should be prayed for in the petition. In re Marriage of Adams, 92 Ill.App.3d 797, 416 N.E.2d 316, 48 Ill.Dec. 285 (1st Dist. 1981). The court is without subject matter jurisdiction to modify a prior judgment or order unless a petition for modification is filed, as required by IMDMA §511. Ottwell v. Ottwell, 167 Ill.App.3d 901, 522 N.E.2d 328, 118 Ill.Dec. 873 (5th Dist. 1988). A petition of modification may be verified by certification. 735 ILCS 5/1-109. See §4.87 below for a sample petition.

Under IMDMA §511(a), notice of a petition for modification may be served by mail at the responding party’s last known address or by the issuance of summons to the responding party. The First District has held that notice by regular mail in compliance with Supreme Court Rule 11 (and Rule 104) is sufficient notice of a petition for an increase in child support. In re Robertson, 151 Ill.App.3d 214, 502 N.E.2d 1279, 104 Ill.Dec. 619 (1st Dist. 1986); In re Marriage of Ponsart, 118 Ill.App.3d 664, 455 N.E.2d 271, 74 Ill.Dec. 241 (1st Dist. 1983)(also citing Cook County Circuit Court Rule 2.1). See also Wait v. Wait, 158 Ill.App.3d 271, 510 N.E.2d 600, 109 Ill.Dec. 732 (4th Dist. 1987)(service by mail is deemed sufficient notice in post-judgment proceeding for college expenses); In re Marriage of Betts, 159 Ill.App.3d 327, 511 N.E.2d 732, 110 Ill.Dec. 555 (4th Dist. 1987)(service by regular mail deemed sufficient notice of petition for attorneys’ fees arising from child support enforcement proceeding).

Notice of a petition for modification may also be given by service of summons on the responding party. In the usual case where the child or children continue to reside in Illinois, the court rendering the underlying judgment retains continuing jurisdiction to enforce or modify its terms, so there is no requirement for the issuance of additional summons. McClellan v. McClellan, 125 Ill.App.3d 477, 261 N.E.2d 216 (4th Dist. 1970). Issuance and service of summons are required when jurisdiction over the responding party was not previously obtained. In situations involving a post-judgment proceeding in a new judicial circuit or the enrollment of a foreign judgment, issuance and service of summons are necessary in order that the court may acquire jurisdiction over the responding party. 750 ILCS 5/511(b), 5/511(c).

Notice of commencement of a post-judgment proceeding must be directed to the responding party rather than to the party’s attorney, since the attorney’s employment is deemed to have ceased upon entry of the underlying judgment or the last modification thereof. In re Marriage of Mullins, 135 Ill.App.3d 279, 481 N.E.2d 322, 89 Ill.Dec. 771 (4th Dist. 1985); Marriage of Ponsart, supra; Cummer v. Vummer, 283 Ill.App. 220 (1st Dist. 1935).

IMDMA §511 details procedures to be followed depending on where the judgment was entered. Section 511(a) sets forth procedures by which a judgment entered in Illinois may be enforced or modified in the judicial circuit where it was originally entered or last modified. If neither party resides in that judicial district, the court, upon the motion of either party or on its own motion, may transfer the proceeding, including an Income Withholding for Support Act proceeding under 750 ILCS 28/1, et seq. (withholding of income to secure payment of support), to another county or judicial circuit, as appropriate, where either party resides. In the case of a post-judgment proceeding pertaining to child support, the transfer shall be to the county or judicial circuit where the recipient or proposed recipient of the child support resides.

IMDMA §511(b) sets forth the procedure with respect to a post-judgment proceeding for the enforcement or modification in one judicial circuit of a judgment entered in another judicial circuit in this state. The statute requires the moving party to commence the proceeding by filing a petition establishing the judgment to which is attached a copy of the judgment sought to be enforced or modified. Notice of the filing of the petition to establish the judgment must also be mailed to the clerk of the court where the judgment was originally entered and last modified in the same manner in which notice is mailed when registering a foreign judgment.

A post-judgment proceeding to enforce or modify the judgment of another state (a foreign judgment) is commenced by filing a petition to enroll the foreign judgment with a copy of the judgment attached and mailing notice of the filing to the clerk of the circuit court in the foreign jurisdiction where the judgment was entered or last modified. 750 ILCS 5/511(c). As with IMDMA §511(b), summons shall issue and be served on the responding party. In re Marriage of Bussey, 108 Ill.2d 286, 483 N.E.2d 1229, 91 Ill.Dec. 594 (1985), clarified that the requirement of this subsection are merely procedural, and compliance with the terms is not required to vest the court with subject matter jurisdiction. Thus, failure to send notice to the clerk of the court in the state in which the judgment was entered or last modified does not deprive the Illinois court of jurisdiction to enforce ad modify the foreign judgment. Moreover, a petition that attaches a copy of the foreign judgment is sufficient to constitute the contemplated “petition to enroll.” 483 of the foreign judgment is sufficient to constitute the contemplated “petition to enroll.” 483 N.E.2d at 1232. If notice is improperly given under this subsection, objection to the notice may be raised by appearance of the responding party. See Marriage of Mullins, Supra.

Under IMDMA §511(d), in a post-judgment proceeding to enforce a judgment or order for the payment of child support when payments are made through the clerk of the court and neither party now resides in the county, the court on motion of either party or on its own motion may transfer the collection of child support to the clerk of the circuit court in another county or judicial circuit, as appropriate, where the recipient of the child support payments resides.

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