Your client was divorced some years ago in a small Mexican village. He and his wife had three children during the marriage. The judgment is in Spanish and has no provisions for child support. The other lawyer wants your guy to pay child support. What advice do you give? Your first thought is that the wife will need to, at the very least, produce a certified judgment for divorce, which she will surely not be able to come up with. Perhaps the court has no subject matter jurisdiction.
You research the issue of foreign judgments, and what you have to do with them, in order to have our courts recognize them.
a. Uniform Enforcement of Judgments Act. (Ill.Rev.Stat. 1965, ch. 77, par. 88(a)), states that a "Foreign judgment" means any judgment, decree, or order of a court of the United States or of any State or Territory which is entitled to full faith and credit in this state. The term "register", under the act, means to docket and record a foreign judgment in a court of this state.
In Nardi v. Segal, 90 Ill.App.2d 432, 234 N.E.2d 805 (1967), the plaintiff sought to enforce certain provisions of an Israeli divorce decree which had not been registered. The argument made was that the failure to register rendered the decree unenforceable. The court, however, noted that the Uniform Enforcement of Judgments Act required only judgments or decrees of the United States or of any State or territory to be registered.
In Hager v. Hager, 1 III.App.3d 1047, 1052, 274 N.B.2d 157, 160 (1971), it was said that "***a judgment of a foreign country cannot be registered under the Uniform Enforcement of Foreign Judgments Act."
b. Uniform Foreign Money Judgments Recognition Act (Ill.Rev.Stat. 1969, ch. 77, par. 121-29) defines "judgment" as 'any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial cases." Could our instant client fall within the provisions of this act, in light of the fact that there was no judgment for support?
If the Act does not prevent enforcement of the decree, perhaps principles of comity should allow a court to enforce it, argues the wife, in Zaluendo v. Zaluendo, 45 Ill.App.3d 849 (1977). But, the Court stated that the wife had confused the distinction between recognizing the foreign decree, as a matter of comity, and enforcing the terms of a foreign decree providing for alimony and child support. The Court, relying on Nardi v. Segal and Hager v. Hager, found that the provisions in a foreign decree regarding child support or alimony are unenforceable in Illinois. The Court held that the Act cannot, therefore, serve as a basis for allowing a court in this State to add provisions to a foreign decree which would have been unenforceable had they been placed in the original decree and, the court could not make the decree its own through the registration process. Zaluendo.
Further, the Zaluendo court held that, 'the rule of comity between nations would justify our recognition of a decree of a foreign country, but we do not believe comity would require us to enforce a foreign decree for alimony where no law exists here granting power to our chancery courts for that purpose., (402 111. 390, 399, 84 N.B.2d 366, 371).
Seems as though a foreign country can recognize a foreign decree, but has no authority to enforce it. Now, I should check the Illinois Marriage and Dissolution Act, Ill.Rev.Stats, ch. 40, on the issue of child support.
Ill.Rev.Stats, ch. 40, sec. 505(a), states that, "In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage by a court which lacked personal jurisdiction over the absent spouse, or any proceeding authorized under Sec. 601 of this Act, the Court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support,....". Our instant proceeding does not fall under any of the proceedings described in section 505(a), so that the court lacks subject matter jurisdiction to enter any child support orders. Right?
Circuit courts have original jurisdiction of all justiciable matters***.' (Ill.Const. 1970, art. VI, 9.) This provision of the Constitution gives the circuit court the general power to determine all matters of controversy arising under common law or equity, or by reason of statute or the Constitution, unless the Constitution requires that a matter be resolved by another body of the government or a higher court.
The court in Skilling v. Skilling, 104 Ill.App.3d 213 (1982) recognized that problems concerning a court's subject matter jurisdiction often arise when a statute has created a right which has no counterpart in common law or equity. By enacting such a statute, the legislature has created a 'justiciable matter.' Id. The court elaborated: Often, legislature prescribes that a court's jurisdiction to hear and determine controversies involving a statutory right is limited in that certain facts must exist before a court can act in any particular case.
For example, the right to dissolution of marriage is a statutory right having no counterpart in common law or equity. Once the right was created, by reason of the Constitution, our circuit courts automatically acquired the general power to hear controversies concerning the right to dissolution of marriage. However, in creating the right, the legislature prescribed that certain facts concerning domicile had to be truthfully pleaded before a court could acquire jurisdiction to hear any particular case involving dissolution. Id. (Ill.Rev.Stats., ch. 40, pars. 401(l), 403(3), 1979).
Generally, the legislature has no power to limit or preclude a court's constitutional jurisdiction to hear a matter. (Ruth v. Aurora Sanitary District, 17 Ill.2d 11, 158 N.B.2d 601 (1959) An exception to this rule arises when the legislature creates a right having no counterpart in common law or equity and has thus created a justiciable matter. Id. Our instant client could argue that the right to child support is a creation of the legislature having no counterpart in law or equity. The circuit court's jurisdiction to hear and grant a petition for child sup- port is controlled by section 505(a) of the IMDMA. Right?
No. The Skilling court found that there is no indication in section 505(a) that the proceedings mentioned are jurisdictional in nature. Even assuming that the right to child support is a creation of the legislature having no counterpart in common law or equity, the IMDMA is silent
y, the IMDMA is silent concerning any jurisdictional matters that must exist before causes concerning child support become justiciable matters.
That court stated that there is no presumption that the statutory means is intended to be exclusive and to abolish all other actions at common law or equity, when the legislature enacts a statute establishing a means for the enforcement of existing rights. See, Cedar Park Cemetery Assoc, Inc. v. Cooper, 403 Ill. 79, 96 N.E.2d 482 (1951).
Today, the court continued, matters concerning the welfare of a child in this State, including the duty of the father to support the child, have always been matters within the court's power to determine. Once it had been recognized that courts of equity could entertain petitions for the support of a child despite the existence of nonexistence of a statute. (Cowles v. Cowles, 1846, 8 111. (3 Gilm.) 435). Thus, the right to child support is not a creation of the legislature having no counterpart in common law or equity. As a result, we cannot conclude that the proceedings prescribed in section 505(a) of the IMDMA are jurisdictional matters because the legislature would have no power to prescribe the jurisdictional elements of child support matters. Skilling.
Today, there is no distinction between courts of law and courts of equity, and it is the circuit courts that have jurisdiction to hear and determine matters concerning the welfare of a child, including the enforcement of the duty of the father to provide reasonable support for the child. See Zaluendo v. Zaluendo, 45 Ill.App.3d 849, 360 N.B.2d 386 (1977). The Skilling court held that it had the subject matter jurisdiction to entertain the wife's petition for child support, and that the existence of a statute or a foreign decree was irrelevant to the question of jurisdiction.
The Zaluendo court believed that subject matter jurisdiction existed in the common law under the plenary jurisdiction of courts of equity over the persons and estates of minors and under the provisions of article II, section 19 of the Illinois Constitution of 1870. As early as Cowles v. Cowles, 8 111. (3 Grim.) 435, 436-37 (1846), the supreme court upheld a custody decree, not on the basis of jurisdiction conferred by the Divorce Act, but under the power of a court of Chancery to interfere with and control, not only the estates but the persons and cus- tody of all minors within the limits of its jurisdiction,,***."
The principle of Cowles was reaffirmed by the supreme court in People ex rel. Lehman v. Lehman, 34 Ill.2d 286, 291, 215 N.E.2d 806, 809-10 (1966), where jurisdiction rested "*** on the long-standing power of courts of equity to resolve child custody disputes." See also, Parker v. Parker, 335 III.App. 293, 81 N.E.2d 745 (1948), in which the court held that the substance of the action must be considered, Irrespective of pleading formalities.
Our client's translator asks for the client, "Isn't my ex-wife now limited to modification of the original Mexican divorce decree? She is now coming into court seeking an "original" order for child support. But, I thought that an original order for support had to be in conjunction with 505(a)'s requirements." The Zalduendo court held that there is no remedial provision in our law under which our courts may enforce or modify the decrees of foreign nations as to provisions concerning maintenance or child support. Id. 45 III.App.3d 849, 360 N.E.2d 386 (1977).
The Zalduendo petitioner had no remedy at law in Illinois. That court found that, "the mere absence of such a remedy was not enough to show the need for an original order of child support". But, that court determined, under the facts of that case, that an equitable need existed. E.g., 1) parties and child now lived in Illinois, 2) without relief being available in Illinois, all parties would have to travel out of the country to that country's courts; 3) unless the respondent also travelled back to the first country to court, that other court could not use any summary pro- cedures against the respondent. Id.
The IMDMA creates a remedy in our courts for enforcing or modifying the maintenance and child support provisions of the decrees of any other State (III.Rev.Stats, 1979, ch. 40, par. 511), but is silent on the question of decrees of foreign nations. The Skilling court analyzed that, 'Without a method of enforcing or modifying the foreign decree in this State, we cannot grant recognition to the decree to the extent that it precludes all possible action in this State. When the welfare of a child is at stake, we believe the doctrine of comity does not require us to leave a child within this State to the protection of a foreign nation.' That court held that the foreign decree did not prevent that wife from bringing an original action for child support.
So, you can tell your client that he should gather his tax returns, W2's, etc. in order that an Order of Withholding can be executed on him for child support. And .... he may be subject to paying some of the ex-wife's attorney's fees, if it's appropriate under the facts of the case. If, however, his ex-wife is also seeking maintenance or property distribution under their Mexican foreign judgment from, sections 403 and 504 of the IXDMA will prevent her from collecting maintenance, and the statutory requirements of 403 will prevent relief for any potential property rights which the petitioner may think that she has.
While the general rule is that attorney's fees are not awarded in the absence of statutory authority, the rule is not inflexible. The court in Pechous v. Slawko, 64 Ill.2d 576, 357 N.B.2d 1144 (1976), noted a trend toward a more liberal allowance of fees. The Pechous court thought that the trial court could award attorneys fees under the same plenary equitable powers authorizing it to make orders necessary for the child's support. If the fees are incurred in order to prosecute/defend the child's rights, they will be considered in the nature of child support.
The court in In Re Marriage of ii.11 Brown and Thomas Harms, 225 III.App.3d 733 (1992) concerned a German divorce decree which reserved the issue of the wife's rights to the husband's military pension. The German court's termination of the marriage was recognized by the Illinois court. However, the court stated that its jurisdiction in a dissolution action is conferred only by statute, so that it could not entertain any petitions in relation to the foreign decree. Id. See also, in re -Marriage of Garrison, 99 Ill.App.3d 717, 720-21, 425 N.E.2d 518, 52! (1981), and Strukoff v. Strukoff, 76 Ill.2d 53, 60, 389 N.B.2d 1170, 1172- 73 . Maintenance following a divorce is also a creation of statute and can only be awarded pursuant to an action brought in accordance with a statute.
Is subject matter Jurisdiction different from equitable jurisdiction, and does the court have equitable Jurisdiction to enter an original order for child support in our case? Subject matter jurisdiction concerns a court's power to hear and decide a case. Equitable jurisdiction concerns whether a court which has subject matter jurisdiction should exercise its discretion and grant equitable relief. Miller v. Rowan, 251 Ill.344, 96 N.E. 285 (1911). The Zalduendo court maintained that equity jurisdic- tion depended on whether the wife proved a need for an original order for child support.