Specific Remedies

IMDMA §505(b) is quite specific about the available remedies to collect child support that is owed to the custodial parent. Those remedies have been greatly expanded by P.A. 90-18, an omnibus bill that amended many statutes related to child support and its collection. Among the remedies spelled out in §505(b) for failure to pay child support, which is a form of contempt, are probation, periodic imprisonment, piercing the ownership veil to discover assets held in another name, and suspension (or restriction) of Illinois driving privileges. These remedies and others are discussed in detail in Chapter 4 of Volume II or IICLE’s ILLINOIS FAMILY LAW SERIES.

The appropriate mechanism for a contempt proceeding, whether for temporary or permanent support and whether brought under IMDMA §§505 or 513, is a petition for rule to show cause. 750 ILCS 5/511 (“A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced . . . pursuant to petition.”). The petition seeking contempt should be accompanied by a sworn affidavit giving sufficient factual detail regarding the specific duties of the obligor (including attachment of the orders for which enforcement is sought); specific lapses of that duty; and allegation that the lapses were without cause or justification and therefore willful and contumacious; the amount of arrearages owed at the time of filing; and a request for relief, including the arrearages, other relief, and costs and attorneys’ fees. See §4.100 of Volume II of ILCLE’s ILLINOIS FAMILY LAW SERIES for a sample petition for rule to show cause.

The request for relief should ask the court to order the non-paying parent to show cause for not being held in contempt of court for the alleged failures to obey the court’s prior orders. The request for relief should seek attorneys’ fees because the statute provides that these fees are mandatory in certain enforcement cases:

In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.[Emphasis added] 750 ILCS 5/508(b)

Fogliano v. Fogliano, 113 Ill.App.3d 1018, 448 N.E.2d 245, 69 Ill.Dec. 785 (3d Dist. 1983); In re Marriage of Fowler, 197 Ill.App.3d 95, 554 N.E.2d 240, 143 Ill.Dec. 305 (3d Dist. 1989) (award of attorneys’ fees is mandatory upon court’s finding that failure to pay child support was without cause of justification).

If the petition for rule to show cause, coupled with the sworn affidavit, states sufficient facts to establish a prima facie case of contempt (e.g., Gentile v. Gentile, 87 Ill.App.3d 311, 409 N.E.2d 52, 42 Ill.Dec. 557 (1st Dist. 1980)), then the burden shifts to the non-paying obligor to show cause for not being held in contempt. In re Marriage of Talmadge, 179 Ill.App.3d 806, 534 N.E.2d 1356, 128 Ill.Dec. 751 (2d Dist. 1989)(also ruling that there need not be express finding of willful and contumacious behavior in order to establish civil contempt). See also, e.g., In re Marriage of Mayer, 97 Ill.App.3d 313, 422 N.E.2d 1154, 52 Ill.Dec. 945 (1st Dist. 1981). The contempt can be either civil or criminal, though constitutional protections must obtain if criminal contempt is being considered. In re Marriage of Betts, 200 Ill.App.3d 26, 558 N.E.2d 404, 146 Ill.Dec. 441 (4th Dist. 1990).

Even after a finding of contempt has been made, however, the obligor must be allowed to purge the contempt (e.g., by paying the obligation that is the basis of the contempt), and the court must specify what actions will suffice to constitute a purge. In re Marriage of Harvey, 136 Ill.App.3d 116, 483 N.E.2d 397, 97 Ill.Dec. 115 (3d Dist. 1985). See also In re Marriage of Betts, 172 Ill.App.3d 742, 526 N.E.2d 1138, 122 Ill.Dec. 599 (4th Dist. 1988).

Jurisdiction to enforce the judgment or order for child support rests with the court that rendered the judgment or other courts as specified in the statute. 750 ILCS 5/511. The provisions regarding jurisdiction, venue, and notice apply to both enforcement and modification proceedings, See §§4.59 – 4.61 below and Chapter 3 of Volume II of IICLE’s ILLINOIS FAMILY LAW SERIES.

Support payments that have accrued belong to the obligee parent, and the court typically may not change the terms of past-due installments. Thus, in In re Marriage of Bush, 191 Ill.App.3d 249, 547 N.E.2d 590, 138 Ill.Dec. 423 (4th Dist. 1989), the appellate court affirmed the trial court’s contempt finding on a arrearage of $12,567 for temporary support but reversed the establishment of a trust to receive those arrearages, noting that the accrued arrearages are the vested right of the designated recipient and that the court lacks the authority to modify them as to form (here, to direct payments to a trust rather than to the recipient). See also In re Marriage of Williams, 115 Ill.App.3d 55, 450 N.E.2d 34, 70 Ill.Dec. 821 (3d Dist. 1983) (recipient mother was entitled to seek judgment on arrearages previously subject of agreed order of enforcement when voluntary payment was not forthcoming from payor-father).

In the past, courts had held that an award of interest on past-due child support payments was not mandatory but, rather, discretionary. In re Marriage of Steinberg, 302 Ill.App.3d 845, 706 N.E.2d 895, 236 Ill.Dec. 21 (1st Dist. 1998); In re Marriage of Kaufman, 299 Ill.App.3d 508, 701 N.E.2d 196, 233 Ill.Dec. 543 (1st Dist. 1998). Note, however, that the reasoning has been superseded by statute as stated in In re Marriage of Carrier, 332 Ill.App.3d 654, 773 N.E.2d 657, 265 Ill.Dec. 893 (2d Dist. 2002).

In addition to contempt, numerous other types of remedies are available. 750 ILCS 5/505(b). Perkins v. Stuemke, 223 Ill.App.3d 839, 585 N.E.2d 1125, 166 Ill.Dec. 103 (4th Dist. 1992), for example, imposes a constructive trust on proceeds from an insurance policy paid out on the death of the payor-father to the child of his second marriage rather than the child of his first marriage as discussed in more detail at §4.34 above.

The law on who has standing to enforce the provisions in a dissolution judgment is changing. Several cases that are pertinent are discussed in more detail in §§4.55 – 4.79 below. The designated recipient clearly has the right to enforce the judgment. Moreover, a mother on behalf of her illegitimate child has the right to seek and enforce the child’s right to child support. People ex rel. Todd v. Harvey, 154 Ill.App.3d 296, 507 N.E.2d 110, 107 Ill.Dec. 446 (1st Dist. 1987).

In addition to the private enforcement mechanisms, the Title IV-D enforcement program remains available for all custodial parents who apply appropriately to participate. In re Marriage of Lappe, 176 Ill.2d 414, 680 N.E.2d 380, 223 Ill.Dec. 647 (1997). A sample application to the Title IV-D Program is included in §4.86 below, and the program is discussed in detail in Chapter 4 of Volume II of IICLE’s ILLINOIS FAMILY LAW SERIES.

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