Department of Healthcare and Family Services v. Beamon , 971 N.E.2d 542 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Department of Healthcare & Family Services ex rel. Daniels v. Beamon,
2012 IL App (1st) 110541Appellate Court THE DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES
Caption ex rel. TOSCA DANIELS, Petitioner-Appellant, v. RANDELL
BEAMON, Respondent-Appellee.
District & No. First District, Sixth Division
Docket No. 1-11-0541
Filed March 30, 2012
Held On appeal from an order for permanent child support and the denial of a
(Note: This syllabus petition for modification of that order, the appellate court dismissed
constitutes no part of petitioner’s appeal from the order as untimely, since the notice of appeal
the opinion of the court was filed more than 30 days after the order was entered, despite the fact
but has been prepared that the trial court reserved the issue of respondent’s liability for
by the Reporter of retroactive support, and further, although the trial court properly
Decisions for the dismissed the petition for modification of the support order pursuant to
convenience of the section 2-615 of the Code of Civil Procedure based on the failure to state
reader.)
a cause of action under either section 510(a)(1) or 510(a)(2)(A) of the
Illinois Marriage and Dissolution of Marriage Act, the cause was
remanded with directions to grant petitioner leave to amend her petition
in a reasonable time.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-D-54755; the
Review Hon. Fe Fernandez, Judge, presiding.
Judgment Affirmed and remanded with directions.
Counsel on Edward X. Clinton, Jr., and Edward X. Clinton, both of Law Offices of
Appeal Edward X. Clinton, of Chicago, for appellant.
No brief filed for appellee.
Panel JUSTICE PALMER delivered the judgment of the court, with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
OPINION
¶1 Petitioner Tosca Daniels appeals from an order of the circuit court of Cook County
striking her “Verified Petition for Modification in Child Support” (verified petition for
modification) pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615 (West 2010)), and from a permanent order for child support entered on July 9, 2010.
On appeal, petitioner essentially contends that the circuit court entered a permanent award
for child support which improperly deviated from the guidelines set by section 505 of the
Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a)(1)
(West 2010)), and then erred in striking her verified petition for modification of that order.
Respondent Randell Beamon has not filed a brief in response; however, we may consider the
issues raised under the principles set forth in First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶2 The common law record filed in this case shows that petitioner initiated paternity actions
against respondent, alleging that he was the father of her minor children R.B. and A.B., and
that respondent later answered that he fathered A.B. The paternity actions were consolidated,
and on April 27, 2010, the circuit court entered an order of parentage adjudicating respondent
the natural and biological father of A.B. The record does not contain an order of parentage
with respect to R.B. On the same date, the court also entered a temporary order for child
support awarding monthly support payments of $300 for R.B. and A.B. In that order, the
court noted that respondent’s net income was “undetermined” and ordered him to bring his
2010 pay stubs and 2009 tax return on the next court date. The court then continued the case
for “permanent support/medical.”
¶3 On July 9, 2010, the court entered a permanent order for child support which, by
agreement, awarded bimonthly support payments of $375 for R.B. and A.B. The record is
silent regarding how the parties agreed on this amount of support. In the support order, the
court noted again that respondent’s net income was “undetermined,” that it was reserving the
issue of retroactive child support, and that the case was “off call.”
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¶4 On August 31, 2010, petitioner filed a verified petition for modification seeking an
increase in respondent’s child support obligation. Petitioner alleged that respondent was
earning approximately $72,000 per year and that the amount awarded by the court in the
permanent order for child support was less than 20% of respondent’s monthly income.
Petitioner requested that the award be “substantially increased” to require monthly payments
of $2,000.
¶5 On December 3, 2010, respondent filed a section 2-615 “Motion to Strike” the verified
petition for modification on the basis that it was “substantially insufficient in law.”
Respondent asserted that petitioner failed to allege or present any evidence of a substantial
change in circumstances warranting a modification of the child support order under section
510(a)(1) of the Marriage Act (750 ILCS 5/510(a)(1) (West 2010)), and that a modification
was not permissible under section 510(a)(2)(A) of the Marriage Act (750 ILCS
5/510(a)(2)(A) (West 2010)) because 36 months had not elapsed since the order was entered.
¶6 In her reply to respondent’s motion to strike, petitioner attached respondent’s 2009 W-2
statement and provided a more detailed analysis of the claimed deviation between the child
support payments that had been awarded and respondent’s obligation under the guidelines
set forth in section 505 of the Marriage Act. Contrary to the initial verified petition for
modification, petitioner claimed in her reply to the motion to strike that the appropriate
amount of support should be 28% of respondent’s monthly income.1 On February 9, 2011,
the court granted respondent’s motion to strike the verified petition for modification, noting
“[t]he previous permanent, by agreement child support order[ ] entered on July 9, 2010 shall
stand.” On February 16, 2011, petitioner filed her notice of appeal from the initial order of
July 9, 2010, and the subsequent order of February 9, 2011, striking her petition for
modification of child support.
¶7 Petitioner first contends that the permanent child support order entered by the court on
July 9, 2010, was erroneous because the court failed to adhere to the guidelines set forth in
section 505 of the Marriage Act and did not explain why the court deviated from the
guideline amount. Before addressing the merits of this claim, we must consider, sua sponte,
our jurisdiction to do so. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 693 (2004).
¶8 The power of an appellate court to consider the merits of a case attaches only upon
compliance with the rules governing appeals. People v. Flowers, 208 Ill. 2d 291, 308 (2003).
Here, petitioner claimed that she was filing her notice of appeal pursuant to Illinois Supreme
Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008)).
These rules pertain to appeals from final judgments and require that petitioner file notice of
appeal within 30 days after entry of the final judgment which is the subject of this appeal. Ill.
1
As noted above, the record does not contain an order of parentage for R.B. However, both
the temporary and permanent support orders were entered “by agreement” and included coverage
for both children. While this court’s decision is based on other grounds, this inconsistency between
the order of parentage for only one child, the support orders covering two children, and the motion
pleadings seeking 20% and then 28% of monthly income must be addressed by the trial court upon
remand.
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S. Ct. R. 303(a)(1) (eff. May 30, 2008).
¶9 In Deckard v. Joiner, 44 Ill. 2d 412, 417 (1970), the supreme court determined that a
judgment in a paternity action becomes final after the circuit court enters an order of
paternity and an order fixing the amount of support the defendant is to pay. The supreme
court so found even though the circuit court had retained jurisdiction of the cause to enter
new orders for support, maintenance, etc., finding that such issues of support were merely
incidental to the other matters. Deckard, 44 Ill. 2d at 416-17. In accordance with that
decision, this court similarly found that entry of an order of paternity and an order fixing the
amount of child support constitutes a final order in a paternity action even where the court
reserves collateral matters such as a request for retroactive child support expenses during
pregnancy. Watkins v. Martin, 115 Ill. App. 3d 417, 419 (1983).
¶ 10 In this case, the circuit court entered an order of parentage on April 27, 2010, and
permanently fixed the amount of child support respondent was to pay on July 9, 2010,
thereby rendering a final judgment despite reserving the issue of respondent’s liability for
retroactive support payments. Watkins, 115 Ill. App. 3d at 419. Petitioner, however, did not
file a notice of appeal seeking review of that permanent child support order until February
16, 2011, seven months after the judgment was entered and thus well outside the prescribed
30-day time limit. Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). In addition, we observe that
petitioner’s filing of a verified petition for modification after the time to appeal had passed
did not render the permanent child support order interlocutory. Deckard, 44 Ill. 2d at 417.
Under these circumstances, we are without jurisdiction to review the permanent child support
order of July 9, 2010. Deckard, 44 Ill. 2d at 417.
¶ 11 Petitioner next contends that the circuit court erred in dismissing her verified petition for
modification. She claims that she demonstrated the requisite inconsistency between the
amount of child support ordered by the court and the amount resulting from application of
the guidelines set forth in section 505 of the Marriage Act to warrant a modification under
section 510(a)(2)(A) of the Marriage Act. Because this claim involves the construction and
application of a statute, our review is de novo. Blum v. Koster, 235 Ill. 2d 21, 44 (2009).
¶ 12 The Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/16 (West 2010)) grants
the circuit court continuing jurisdiction to modify a child support order in accordance with
section 510 of the Marriage Act. Under section 510(a)(1), the court may modify a child
support order upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a)(1)
(West 2010). Under section 510(a)(2)(A), the court may modify a child support order upon
a showing of an inconsistency of at least 20% between the amount of child support awarded
under the existing order and the amount that would result from application of the guidelines
set forth in section 505 of the Marriage Act. 750 ILCS 5/510(a)(2)(A) (West 2010). Section
510(a)(2)(A) only applies, however, where a party is receiving child support enforcement
services and when at least 36 months have elapsed since the order for child support was
entered or last modified. 750 ILCS 5/510(a)(2)(A) (West 2010).
¶ 13 We first note that contrary to petitioner’s argument, section 2-615 motions to strike are
appropriately utilized in child support proceedings. See McNellis v. O’Connor, 266 Ill. App.
3d 1063 (1994). Petitioner has cited no authority, and we have found none, to support her
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position that allowing section 2-615 motions to be used in child support proceedings would
be “extremely bad public policy.” That said, in child support proceedings, as in any case,
motions to strike are subject to a specific procedural course of action. See McNellis v.
O’Connor, 266 Ill. App. 3d 1063, 1068-69 (1994).
¶ 14 In this case, the circuit court entered a permanent, by agreement, child support order on
July 9, 2010, awarding bimonthly support payments of $375 for R.B. and A.B. On August
31, 2010, petitioner filed a verified petition for modification, alleging that those child support
payments were less than 20% of respondent’s monthly income. Petitioner’s bare-bones
motion, however, failed to allege whether she was proceeding under section 510(a)(1) or
section 510(a)(2)(A) of the Marriage Act. Specifically, petitioner did not allege a substantial
change in circumstances from the time the permanent support order was entered as required
under section 510(a)(1). Petitioner also failed to show that she fell within the ambit of section
510(a)(2)(A) as a party receiving child support enforcement services. Additionally,
petitioner’s request for modification under that section was clearly premature, having been
made less than 2 months after the permanent child support order was entered, rather than
after the minimum 36 months required by this provision (750 ILCS 5/510(a)(2)(A) (West
2010)). Petitioner before the trial court, and again on appeal, essentially conflates a section
510(a)(1) and a section 510(a)(2)(A) motion by simply stating that the support order did not
follow the guidelines. Petitioner ignores the fact that a petition for modification under section
510(a)(2)(A) relying on the guidelines alone cannot be brought within 36 months of the date
of the support order. At the same time, simply claiming a deviation from the guidelines alone
is not sufficient to allege a substantial change in circumstances under section 510(a)(1), as
to so hold would essentially vitiate the section 510(a)(2)(A) 36-month time limitation. As
a result, the court did not err in granting respondent’s motion to strike where the petition was
clearly insufficient to state a cause of action under either section. However, given
respondent’s decision to proceed by way of a section 2-615 motion to strike, our analysis
cannot end there.
¶ 15 A section 2-615 motion to strike challenges the legal sufficiency of a pleading by alleging
defects on the face of the pleading. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429
(2006). In reviewing the sufficiency of a pleading, we accept as true all well-pled facts and
all reasonable inferences that may be drawn from those facts and we construe the allegations
in the pleading in the light most favorable to the plaintiff. Marshall, 222 Ill. 2d at 429. “ ‘[A]
cause of action should not be dismissed on the pleadings unless it appears that no set of facts
can be proved which will entitle the pleader to relief, and then only if it is apparent that even
after amendment, if leave to amend is sought, no cause of action can be stated.’ ” Cordts v.
Chicago Tribune Co., 369 Ill. App. 3d 601, 613 (2006) (quoting Dinn Oil Co. v. Hanover
Insurance Co., 87 Ill. App. 2d 206, 211-12 (1967)). We review an order granting or denying
a section 2-615 motion to strike de novo. Marshall, 222 Ill. 2d at 429.
¶ 16 Here, although we agree with the court’s decision to grant respondent’s section 2-615
motion to strike, we do not approve of the procedure that was followed in this case. See
McNellis, 266 Ill. App. 3d at 1070. We believe that in ruling on respondent’s motion to
strike, the trial court “should first have addressed the sufficiency of the allegations of the
petition, and if they were not sufficient, the petitioner should have been given the opportunity
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to correct the insufficiency.” McNellis, 266 Ill. App. 3d at 1070; Lee v. Chicago Transit
Authority, 152 Ill. 2d 432, 467 (1992) (“In Illinois, courts are encouraged to freely and
liberally allow the amendment of pleadings.”). The record before us does not show that
petitioner sought leave to amend or that she was afforded the opportunity to do so by the
court. See Cordts, 369 Ill. App. 3d at 612-13 (had respondent properly challenged the
sufficiency of the petition through a section 2-615 motion, petitioner would have been
entitled to an opportunity for leave to amend).
¶ 17 In McNellis, the petitioner filed a petition seeking to modify a child support agreement.
The petitioner alleged that the respondent misrepresented his annual income and that no
discovery of the respondent’s assets or income was done before the agreement was entered
into by the parties. McNellis, 266 Ill. App. 3d at 1065. The respondent filed a section 2-615
motion to strike. McNellis, 266 Ill. App. 3d at 1065. At a hearing on the motion, the parties
briefly recounted to the court how they entered into the support agreement. McNellis, 266 Ill.
App. 3d at 1066-67. The circuit court granted the respondent’s section 2-615 motion to strike
and dismissed the petition. McNellis, 266 Ill. App. 3d at 1065. The petitioner appealed and
we held that the trial court should have afforded the petitioner the opportunity to correct the
legal insufficiencies in the petition before dismissing it. McNellis, 266 Ill. App. 3d at 1070.
In doing so, we noted that “if the allegations of a change in the respondent’s financial
condition or the allegation of a misrepresentation of the respondent’s condition were not
specific enough, the petitioner should have been given the opportunity to amend the
petition.” McNellis, 266 Ill. App. 3d at 1069.
¶ 18 Having found that the trial court properly granted respondent’s motion to strike, we must
address whether the petition should have been dismissed with prejudice. Blazyk v. Daman
Express, Inc., 406 Ill. App. 3d 203, 209 (2010). We observe that although the trial court’s
order does not specifically state it was entered with prejudice, it notes that “the previous
permanent, by agreement child support order entered on July 9, 2010 shall stand.” We follow
the rule that an initial pleading should not be dismissed with prejudice unless it is clearly
apparent that no set of facts can be proven that will entitle the petitioner to recover. Daman
Express, 406 Ill. App. 3d at 209 (citing Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488
(1994)). Here, even more than in McNellis, the record is silent as to how the parties agreed
on the now disputed amount of support and what representations were made by respondent
so that we may consider whether there was a substantial change in circumstances since the
entry of the permanent child support order. Given this record, we have no basis to confidently
say that it is clear that petitioner, even after amendment, would not be able to state a claim
for relief. Daman Express, 406 Ill. App. 3d at 209. We hold that in response to these
pleadings, the trial court should have granted the motion to strike pursuant to section 2-615
of the Code but also should have granted leave to amend within a reasonable period of time.
¶ 19 For the reasons stated, we affirm the trial court’s order granting respondent’s section 2-
615 motion to strike and remand the matter with directions that the trial court afford
petitioner the opportunity to amend her petition.
¶ 20 Affirmed and remanded with directions.
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