Mom and Dad, who are Israeli citizens, get divorced. Sixteen years later, Mom, who still lives in Israel, tries to collect on her child support judgment, from Dad, who has been and still is a United States citizen. Among every other conceivable argument that is raised by him, Dad argues that the Statute of Limitations for child support has long run out, so that he is not responsible.

Is Mom out of luck? Has she done everything that she is supposed to have done to get where she is in the American court process? For purposes of discussing the Statute of Limitations issue, let�s assume that the American court has properly taken jurisdiction to record and enter the Israeli judgment in our courts.

In an action for arrearages, as our case, the other state�s statute of limitations applies, or the Illinois statute, whichever is longer. 750 ILCS 22/604(b). So, the Illinois legislature provides that the Statutes of Limitation are applicable. The general statute of limitations under Israeli law is seven years (Prescription Law 1959, sec. 5(1)). However, in support cases, the period of seven years for the statute of limitations will start to count only when the plaintiff ceased to be a minor, i.e., when he completes his 18th year (Prescription Law 1959-sec. 10). Mom argues that we do not have a statute of limitations for child support in Illinois, and are within term with the Israeli statute anyway.

Illinois courts have found both an application of different statutes of limitation, and non-application of any statutes of limitation, depending on whether the origin of the cause of action is in Illinois or not.

FIVE YEAR STATUTE OF LIMITATIONS

Prior to September 1991, section 12-602 of the Uniform foreign Money-Judgments Recognition Act stated the following: “On application made within the time allowed for bringing an action on a foreign judgment in this State, any person entitled to bring such action may have a foreign judgment registered in any court of this State having jurisdiction of such an action. (Ill.Rev.Stat. 1989, ch. 110, par. 12-602, repealed by Pub. Act 87-358, eff. Sept. 9, 1991 (1991 Ill. Laws 1921).

Under this section, an action to commence the registration of a foreign judgment was considered civil in nature, and because no specific statute of limitations covered such an action, the general five-year statute of limitations set forth in section 13-205 of the Code (Ill.Rev.Stat. 1991, ch. 110, par. 13-205) applied. See Vrozos v. Sarantopoulos, 195 Ill. App.3d 610, 617, 552 N.E.2d 1093, 1098 (1990).

In l991, the legislature repealed sections 12-601 through 12-617 of the Uniform Money-Judgment Recognition Act and enacted sections 12-627 through 12-634 of the Uniform Enforcement of Foreign Judgments Act (Foreign Judgments Act) (Ill.Rev.Stat. 1991, ch. 110, pars.12-627 through 12-634). (Pub. Act 87-358, 1, eff. Sept. 9, 1991 (1991 Ill. Laws 1921-22)).

In the case of Light v. Light, 12 Ill.2d 502, 147 N.E.2d 34 (1957), a Missouri divorce decree was entered in l944, and the mother sought to enroll her petition to register the judgment on September 28, l953 through the Illinois Uniform Enforcement of Foreign Judgments Act. The Illinois court allowed support and alimony arrearages for five years prior to the September 28, 1953 Illinois filing date. Our Supreme Court held, “In the case of a judgment for the payment of money in periodic installments, a right of action accrues on each installment as it becomes due, and the period of limitations runs on each installment only from the time it becomes due.” Generally, statutes of limitations begin to run from, and not until, the time the cause of action accrued. Berg & Assoc., Inc. v. Nelson Steel & Wire Co., 221 Ill.App.3d 526, 532, 580 N.e.2d 1198, 1201 (1991).

In the case of Haughton v. Haughton, 76 Ill.2d 439, 394 N.W.2d 385 (1979), the mother filed a two-count petition in May, 1975. Count I, under the Reciprocal Enforcement of Support Act, sought to register and enforce a l958 New York child support order directing payments of $50 per month. Count II sought to enroll and enforce a l950 California judgment providing for monthly child support. After the trial court dismissed Count I and granted judgment on Count II, the appellate court reversed the relief pertaining to Count II, reasoning that the five-year statute of limitations had expired. The Supreme Court reversed both findings on Counts I and II, based on the fact that the father first entered Illinois in November, 1970, which tolled the statute until that time. The mother was allowed to have filed her petition any time before November, 1975, to preserve the five year statute of limitations on both counts of her petition.

TWENTY YEAR STATUTE OF LIMITATIONS

Illinois courts have consistently held that an Illinois divorce decree ordering payment of child support is a money judgment subject to the 20-year limitation for enforcement of judgments contained in section 13-218 of the Code. (Ill.Rev.Stat. 1991, ch. 110, par. 13-218), instead of the five-year statute of limitations contained in section 13-205 of the Code (Ill.Rev. Stat. 1991, ch. 110, par. 13-205.) Therefore, a parent is not limited in the collection of child support arrearages to those amounts accrued during the five-year period immediately preceding the filing of the petition. Wray v. Brassard, 226 Ill.App.3d 1007, 1013-14, 589 N.E.2d 1012, 1016 (4TH District, (1992)(Illinois Judgment)). In re Marriage of Yakubec, 154 Ill.App.3d 540, 544, 507 N.E.2d 117, 120 (1st District, (1987)); Atwater v. Atwater, 18 Ill.App.3d 202, 208, 309 N.E.2d 632, 637 (1st Dist., 1974)). The Wray v. Brassard court distinguished the Haughton and Light courts (supra) because those two cases inv
olved foreign judgments, thus, those judgments were subject to the five-year statute of limitations.

In In re Marriage of Kramer, 253 Ill.App.3d 923, 625 N.E.2d 808, (4th Dist., 1993), the Husband and Wife were divorced in 1974 in Nebraska, and the Wife filed her Petition to Register a foreign judgment in Illinois in April, 1991. The Husband argued that the Wife�s claims had already expired and were barred by the five-year statute of limitations prior to the effective date of the new provisions of the Foreign Judgments Act. He asserted that, because the Wife�s claims predated September 9, 1986, five years after the effective date of the new act, they were barred by the five-year statute of limitations. Further, he argued, applying the 20-year statute of limitations, retroactively revived the Wife�s already expired cause of action. Id. 253 Ill.App.3d at 927, 625 N.E.2d at 812. In response, the Wife argued that the statute of limitations at the time of the filing of the application should govern because, prior to the decree being enrolled in Illinois, it was neither cognizabl
e nor subject to any defenses under Illinois law. Id.

The Kramer court reasoned that, at the time the petition was filed, the 20-year statute of limitations applied to Illinois decrees, and thereby applied to foreign decrees registered in Illinois by section 12-628 of the Foreign Judgments Act. At the time the arrearages accrued, the five-year statute of limitations applied. The court held that, thus, the five-year provision barred those claims arising five years prior to the effective date of the Foreign Judgments Act. The subsequent extension in the statute of limitations would not revive those causes of action because they were previously barred under the five-year statute of limitations. Id.

The Kramer court relied on the fact that subsequent legislation extending the statute of limitations cannot be applied retroactively to revive a time-barred cause of action unless the legislature indicates otherwise. (Johnston v. Tri-City Blacktop, 217 Ill.App.3d 388, 392, 577 N.E.2d 529, 531 (1991). Id. However, the 20 year statute would apply, of course, if the case arose at or after the time that the 20-year statute had been enacted. Id.

In our instant case, Mom argues that this is all nonsense, because, all of these cases notwithstanding, she has an equitable and a statutory right to child support. Neither the Illinois support statute, 750ILCS 5/505, nor the support provision of the Uniform Marriage and Divorce Act, Sec. 309, 9 U.L.A. (1973) creates an obligation to support minor children. These laws authorize the court to order either or both parents owing a duty of support, to pay support. Section 505 codifies the concept that the support of the child is a joint obligation of both parents. There is no time limitation written into this requirement. The duty to support is based on the common law, which is not modified by statutory provisions for support. In re Marriage of Rasid, 64 Ill.App.3d 629, 381 N.E.2d 744 (5th Dist. 1978). Kelley v. Kelley, 317 Ill. 104 (1925). Comments to section 309 of the Uniform Marriage and Divorce Act, recite that “[t]his section does not set forth the conditions under which a
parent owes a duty of support to a child.” Though the statute does not itself impose an obligation of support, there must be a presumption that there is an obligation of support. That obligation must be based on the common law, if the cases are holding that there is a statute of limitations.

STATUTORY ENTITLEMENT TO CHILD SUPPORT

735 ILCS 5/12-108(a), as amended, codifies this equitable entitlement, by providing that, “Child support judgments, including those arising by operation of law, may be enforced at any time. (Amended by P.A. 90-18, Sec. 90, eff. July 1, 1997).

In finding a statute retroactive, the court must first determine whether the statute interferes with antecedent rights, and if so, the retroactive operation becomes a question purely of legislative intent. Monroe v. Chase, 76 F.Supp. 178 (Ill., 1948). Mom argues that the statute does not interfere with any antecedent rights that Dad may think that he has, because Dad has no right to avoid any child support obligation.

Under the Bradley test for retroactivity, the presumption that the statute is to be appliedprospectively does not apply when there is a clear congressional intent to the contrary or if manifest injustice would result. Ribando v. United Airlines, Inc., 787 F.Supp. 827 (1992). When a change in the law is �substantive�, rather than procedural, the presumption of prospectivity arises which is rebuttable only by the act itself. Moshe v. Anchor Org. for Health Maintenance, 557 N.e.2d 451, 199 Ill.App.3d 585, app.den. 561 N.E.2d 694, 133 Ill.2d 559 (1st Dist., 1990).

In the case of In re Marriage of Steinberg, 302 Ill.App.3d 845, 706 N.E.2d 895, the father argued that until section 12-108(a) was amended in l997, child support judgments were not excepted from this statute. Therefore, father argued, no judgment shall be enforced after the expiration of seven years from the date that the judgment is rendered, except by revival of the judgment by a proceeding provided by Section 1-1601 of the Act. 735 ILCS 5/12-108(a), 1996, eff. July 1, 1997) The Steinberg court disagreed and stated that, even before section 12-108(a) was amended, the Appellate Court had held that a trial court retained continuing jurisdiction over child support matters. See In Re Marriage of Homan, 126 Ill.App.3d 133, 466 N.E.2d 1289 (1984). In Homan, the Appellate court rejected an argument that a dissolution judgment is unenforceable after seven years under Illinois law, by its holding that the court had jurisdiction of a claim for child support arrearages made more than
eight years after the judgment of dissolution. The Steinberg court made no mention of a five or twenty year statute of limitations.

Mom has analyzed the legislative history, including any committee notes, in relation to Public Act 90-18. Her conclusion, based on the fact that there is no legislative history, is that the legislature acted in accordance with the commonlaw mandate that child support is always enforceable, “at any time”. “At any time”, includes periods prior to the enactment of the amendment to 735 ILCS 5/12-108, means �always� and speaks for itself. Legislative history is silent on whether the statute should be applied retroactively, because the legislators took no view other than that child support is always enforceable. Clear congressional intent is obvious from the “at any time” language of 108(b).

EQUITABLE CHILD SUPPORT ENTITLEMENT

In Johnson v. Johnson, 264 Ill.App.3d 662, 636 N.E.2d 1013 (Fist District, l994), the mother had filed a URESA petition in Georgia, seeking reimbursement for child support provided by a Georgia agency. After the petition had been transferred to Illinois, the Court entered an order for the father to pay monthly support, but refused to award any arrearages, based on its finding that the issue of support had been reserved in the underlying divorce decree. The Appellate Court reversed, holding that the father had a common-law duty of support, aside from any duty imposed as part of dissolution. The Appellate Court further held that the circuit court had erred in denying reimbursement for past support during a period when the dissolution order expressly reserved the issue of child support for later resolution.

Under URESA, a “duty of support” is any duty “imposed or imposable by law or by order or judgment of any court, whether interlocutory or final or whether incidental to an action for dissolution of marriage, legal separation, or otherwise, and includes the duty to pay arrearages of support, past due and unpaid.” (750 ILCS 20/2(b) (West 1992). See also People ex rel. Lightbody v. Lightbody, 117 Ill.App.3d 119, 121, 451 N.E.2d 890 (1983), stating that the use of the word “imposable” indicates that the duty need not be one previously imposed by a court.

The Johnson Appellate Court further relied upon People ex rel. Paredes v. Paredes, 150 Ill.App.3d 692, 502 N.E.2d 273 (1986) and People ex. Rel Hartshorn v. Hartshorn, 21 Ill.App.2d 91, 157 N.E.2d 563 (1959), in holding that a father is liable for the support of his minor children even though a prior dissolution judgment is silent on the issue of support, rather than reserving the issue of support as in Johnson.

The divorce of the parents does not abrogate the moral and legal obligation of the father to support his minor child. Parker v. Parker, 335 Ill.App.293, 81 N.E.2d 745 (2nd District, 1948). Parker involved a petition filed in Illinois on behalf of a minor child by her next friend, to order the father to contribute to the minor�s support, after the parents had been divorced in Indiana and the father moved to Illinois. The Parker court stated that a decree of divorce in one state awarding custody of the children to the mother, but making no provision for their support, does not preclude an independent suit in another state where the father has become a resident, to enforce his continuing duty to support his children. Id.

Under the Illinois Constitution (Art. II, sec. 19), which provides that every person shall find a remedy in the law for the injuries or wrongs to his person, property or reputation, of which he is aggrieved, the Illinois court has recognized and protected the rights of minor children to support and family life against interference from third persons. Johnson v. Luhman, 330 Ill.App. 598, 71 N.E.2d 810. If this right can be enforced against third persons, it should obviously be enforced against the derelict parent, who has fled to this state and is violating his obligations to his child. Id. The cases are replete with declarations of the law that courts of equity have plenary jurisdiction over the persons and estates of infants, and, in cases where the rights of minors are concerned, they are the wards of the court, which will protect their interest. Id.

However, in the case of In re Marriage of Snyder, 269 Ill.App.3d 848, 646 N.E.2d 1263 (1st Dist., 5th Div. 1995), the court held that a trial court has no plenary-common law jurisdiction to enter a child support order. Snyder involved a Danish divorce decree which did not contain a provision for child support. “Equity courts have no inherent power in dissolution cases and the jurisdiction of a court in a dissolution proceeding is limited to that conferred by statute.” Id.

“As a matter of common sense, if the divorce court has plenary-common law jurisdiction in matters of child custody because of the court�s concern about the welfare of children, jurisdiction to provide for child support must go hand in hand with jurisdiction to decide custody.” Gitlin, H. Joseph, GITLIN ON DIVORCE, A Guide to Illinois Matrimonial Law, 1997, p. 317, n. 16. Mr. Gitlin�s analysis of Snyder concludes that the Snyder opinion is bad law both as a matter of common sense and as a matter of proper legal analysis. Id.

Mom agrees that Snyder, and all other cases which hold that there is a statute of limitations for child support, are bad law. She should be granted a fully-collectible judgment for support and arrearages in Illinois based on her l982 Israeli judgment, because of the common law and because of 735 ILCS 5/12-108(b). If any of the other pertinent statutes apply, all the better.