day on a case that our office refers to as the forty year old support case mr samuel sneer else the appellant in this case testified in court without hesitation that in fact he paid no support or maintenance to his ex wife the leader since one nine hundred seventy one at that time the party son was about four years old today gilberto the son is about forty seven years old and that's of time is what brings us before the bench today in january twenty seventh of january of one nine hundred seventy a judgment for dissolution of marriage was entered it was entered by default cisneros had participated in the litigation however he didn't participate in the end and a default judgment was entered against him he was ordered to pay twenty dollars in maintenance or alimony it was called at the time and fifteen dollars in child support in one nine hundred seventy one he made his last payment and what significance in this case is that in one thousand nine hundred nine he moved to the state of texas miss rainbow found out in two thousand and eleven his whereabouts she found out through her daughter in law that he was in fact in the state of t yeah her son had contact with him when he reached i don't know if he was an adult yet but we certainly a teenager in the dad had purchased him a car and it's my understanding that there were times when even though he contacted his father he didn't discuss it with his mother you claiming he was hiding i am claiming well i'm claiming that he moved to the state of texas and made no contact with mr ingle purposefully so that he would not have to pay support where the support is she would not even become up because he complain about their son and enforce the order there's plenty of time to do something there was twenty one she said in her legal rights there was plenty of time to do something if she had the ability to know where to know his whereabouts she testified she did not know his whereabouts even though he was in the state of illinois for the one thousand years after the judgement for just lose the marriage he had no visitation no contact with the son so he just wasn't part of her life she has returned he is divorced she had an attorney at the time of the people whose child support has not been paid yeah and i'm not sure at that time if the state was willing to do that or not but i know that it was she really because she never there that we record she did not contact him other than right after the do just lucian of marriage when she still had her attorney i presume she filed the petition for rule which you know went nowhere and i presume she was discouraged and maybe she didn't have the funds or the ability to find him or maybe because her discouragement in a petition for rule she'd even filed before the dissolution of marriage got no where there was even an attachment order entered for mr rangle the mr cisneros that went nowhere so maybe it was parker discouragement but that's true she did not make any contact with him or make any effort to file anything else in the court between one nine hundred seventy and two thousand and eleven when the petition was filed for enfor now the trial court denied miss wrangles relief her attempts to use collect to support maintenance based on the statute of limitations they deny the maintenance portion based on known only the statute of limitations but also play out yes i'd like to address the statute of limitations issue initially and state that until one nine hundred ninety seven july first of one nine hundred ninety seven the statute of limitations was and any action it would have been brought in july first of one nine hundred ninety seven that was amended and it was amended to allow or to state that child support even those child support orders there are up an operation of law may be enforceable at any time now the limitation is only true for child support orders which would then valid and are not the standard that's that's correct the state when the change in the statute of limitations happened because it was procedural it would apply to anything that would not have lapsed and it would bar in the street correct it could not revive anything that was already that was already done now in one nine hundred seventy then anything that wasn't filed by nine hundred ninety there would have been a lapse because of the twenty years however i came in is that cisneros left the state of illinois in one thousand nine hundred nine so that would have told the statute of limitations in year nineteen and because the say it should limitations had not run because of the tolling and july first of one nine hundred ninety seven when the public act changed it and allowed for enforcement of child support orders at any time the child support judgements were a able to be enforced because of that to have position is that when the petition for rule was served i mr cisneros in two thousand and eleven when he again became under the jurisdiction of the court of illinois in essence returned to the state of illinois prison for her the statute of limitations here being the leader wrangle time to proceed with her cause of action now even if this court finds that there was no tolling of the statute of limitations and the legal wrangle is still entitled to relief because there were certain judgments that had not mature that for twenty years and by certain judgments i'm talking about the case law here in illinois that makes it very clear that if you have periodic installments the statute of limitations does not begin to iran until each installment becomes do so in one thousand ninety seven when you had the new the new law in effect anything after nine hundred seventy seven had not began sure to run or had not ran so those installments if this court were to find that there was no tolling those seven years of payments would beast apply under the liches argument because he was required to show that he was prejudiced by the delay and that he was not able to show records because of and to show that she lived with the man he testified that he thought she lived at the sign he thought she lived with i think she he names two different men and the legal wrangle testified that she never lived with anybody else and if he thought that she lived with the man i think he would have went into court and terminated his maintenance songs so you think he was guilty of lectures i'm not wrong i'm maybe he was guilty of of i'm not suggesting latches i'm suggesting laziness because he could have went in and termes because he's the one who had the obligation to pay actually in the context of somebody who waits forty years with laziness with all due respect is the wrong word here i think you would find yourself in a glass house with an argument back after sixty years and try to get child support from the estate goes to some question about whether to support or maintenance right it was a say i think the same issue here is it support is that main is it a mixture of both but the court granted the defense of latches for two reasons once he said that it had then sixty years they lived in neighboring counties for the entire sixty years am and he had passed away and he was unable to even bring in a defense if there was a defense to bring but because he had passed away i think that was the reason that they said latches and we have both been staking out one set of  facts that the courts have found establishes the prejudice under way that's different from the facts in this case all we know from bowman is that if the person who was who is a state is being challenge he's deceased latches is found to wire because they lived in neighboring counties it doesn't say that if the other person has to die moreover in bowman we have something not of this compelling as we have in this circumstance because in bowman there was not an  or suggestion really of any defense on the merits of the case where here there is an assertion that there was indeed a defense and there is a further assertion that because of the destruction of the hotel and the suggestion of other potential documentary evidence other witnesses that  anyone other than the son of your client that the franking i live in that there would be no access to access to want any evidence or discovery so it's a different situation but i don't think bowling jumps out as precluding lashes under these circumstances well i think the bony case doesn't preclude it allows it to be undertaken by the courts as a defense but i think this the facts are so arse are not substantially similar and i think the fact that he was deceased was the critical issue and now point i think that mr rangle mr cisneros would have been deceased i think maybe would have the judge would have said he can't even be here to give a defense what about that and that issue the standard of review that we have to apply i mean we have to to accept your argument we have to say that the trial court abused its discretion and it seems like the best argument that you can make here is that you know reasonable minds might differ on this issue and a different trial court might have found in favor of your client on the issue of latches i don't know are you overcome the standard or are you well the standard of you view as you say is abus if you also after the mix expiration of the statute of limitations for it to apply because by definition there wouldn't be alive quite right and my point justice is because the statute of limitations has not told in this case because we're still under enough time whether it be told by the twenty years or whether we still have seven years of support under the amendment on july first  latches shouldn't apply because it's outside of that and you have to show not only did she sits on her rights but then he also had the damages mr cisneros was unable to show any damages he said he would have to take money out of his accumulated estate construction under five ten see case and they could say that a spouse is not injured because he was forced to pay an amount they had accumulated in a lump sum because he failed to pay support payments and there's numerous cases say that's not the injury is to pay a lump sum what you fail to pay in time with payment because there is no order of court there was entered now if if you look at that the statue of limitations now on the courts and this is this a public acquittal never addressed the issue of applying then one nine hundred ninety seven amendment retroactively that becomes a contention of my client because he's entitled to due process and this amendment didn't exist so so explain to the court if you're divorced in one thousand nine hundred seventy and you're here and twenty thirty seven the statue of limitations that exist on one nine hundred seventy applies to the child support judgment we're trying to do the reverse we're trying to what the courts have done is a grandfather by looking in the phone book it was a simple as that looking in the phone book he was able to find his paternal grandfather and meet up with mr cisneros they bought a car and the record indicates that that car was split between scared that turned out to be a frank lie when she was asked what was mr cisneros social security number at undirected damnation she couldn't even tell the court what are social security number so there's no reasonable explanation that's possible for her not going to the courts from nine hundred seventy two nine hundred eighty four letter no nine hundred eighty four but now you're going into the last argument in essence so let me let me ask you  actually prejudiced you like well it's the trial court noted that neither party called gilbert choice as a witness in this case and b that we're moving to my second point which latches we know from of the supreme court that our money judgment is not a reason for the second element of latches that you can't use that as the fans to show injury or prejudice which is a second out the forty one year she presumably based on the record at least during the period of his minority was living with his mother to prove whether or not there was cohabitation if you can prejudice is he can prejudice is a relationship with this son it's a fight that if you call them as i agree but there in the timeframe from the judgment running in one thousand seven hundred to nine hundred eighty four the child's a minor what does he know right well but the point is at the time this instant issue was brought to court he was already what forty five years old that's true so now you're not really worried about bruising a relationship with a minor and presumably during the period of time in which your client can and is there was cohabitation he was living in the home with the mother so he would be in a position you know be sophisticated really to be able to say there was somebody else living in the home with us that while i agree with you you know you're testing the memory of a minor from from the time frame that i'm not because nobody ever called him that's true but there's there's other there would be something to say if he was call when he said something contrary to what your client presumably would expect him to believe call there's other factors that you can look at to terminate meanin operational wants not necessarily cohabiting it could be that you hold yourself out with another member who not only speculate because the law does say it your burden to demonstrate how you've been prejudiced we're not here to guess whether there was some other discretion that's the that's the standard we have to look at when you're looking at the second reason to affirm my client's system so you don't support further that the the second reason you have also the issue that you have a judgment that was entered on fraudulent misrepresentations with regard to the trial court's court would be dealing with that now there was some testimony from elisa of the witness that miss rangle was having conversations about her with her about her problems with her boyfriend and in two instances my client testified that in  look at the manifest way of the evidence she denied it and she was holding credible not my client so that's that's that's what you're looking at under the second reason the manifest weight of the evidence it when you get a simple denial and i don't i don't i don't i you know he's got the burden to prove that she was living and after forty years with this is on him unavailable it's a it's almost impossible to get witnesses to go back that far some kind of term the term these people were at peace for forty years and when people are at peace for forty years i mean now you come back it shocks the conscious you know what are you doing here for forty one years later asking for something very crude you know twenty five years ago if you ask any person on the street she's coming back from the one nine hundred seventy judgment and it's kind of like really what you know that's why not oh that's the biggest question just very briefly i just want to point out that the critical inquiry is is the prejudice when we're talking about the latches and in the devonport case which is recent as two thousand and nine there was a twenty six year to lay in filing the court said she found out where he was she filed when she thought it was prudent and they very clearly stated in their ruling that this is critically important could encourage chimes in even in one nine hundred seventy but to allow somebody to testify under oath they had no support and barm by the term of latches absent a showing he testified i may have been i may have had record i may have been able to find out from the hotel there was no evidence that there was any his injury in his affidavit was that his accumulated estate would be  diminished to provide this wrangle with the windfall and i believe that latches should not apply in this case he testified about cohabitation he testified about  other defensive matters but as far as latches is concerned the in the in korea about his injury was not prevalent in this testimony if it was not brought forth in the case so we would ask that this trial court's judgment spying the statute of limitation barker claim child support be reversed in her judgment the trial court's judgment that latches and the statue of limitations