No. 2--08--0109 Filed: 2-27-09

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court KATHLEEN M. DAVENPORT, ) of De Ka lb Co un ty. ) Petitioner-Appellee, ) ) and ) No. 72--D--178 ) RONALD L . DAVENPORT, ) Honorab le ) Wi ll ia m P . B ra dy, Responde nt-Appe llant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: This case involves a

claim for a child support arrearag e for a "child" who is now 44 y ears old. Respondent

Ronald Davenport appeals from the trial court's r uling awarding his former wi fe, petitione r Kathle en Dave

nport, approximately $26,600 in past-due child support and intere st. On appeal, respondent argues that the circuit court improperly denied his motion to vacate a preliminary injunction entere d prior to its decision on the child support arrearage , that the statute of limitations barred petitioner's collection of the past-due support, that petitioner's action wa s b ar re d b y laches , and that the trial court erred in allowing petitioner to rec over interest on the past-due support. For the rea sons that f

ollow, we affirm t he judg ment of the

trial cou rt. Inthe parties' 1972 divorce judgment, responde nt was ordered to pay

$13 per week per

child
as child support for the parties' three minor children ( then 8, 3, and 1 yea

r old). In 1979, respondent
was found in c ontempt for his fail ure to me et his child support obligation; the parties agree that heNo. 2--08--0109

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overpai d in satisf y ing the judgment, so that, as of March 1981, his support acc ount had a positive balance of $1261. There is some dispute as to what, if any , payments he made

after that date. On Au gust 30, 2007, petitioner filed an emergenc y petition for injunctive relief
. In th e petition, she alleged that respondent had acc rued an arrearage in his child support obligation since the 1979 contempt order, and she asked that the court intervene to prevent responden

t fro m dissipatin g his expe cted pro ceeds f rom his brother's sale of family property. On Septe

mber 4, the trial court held a hearing for ar gument on the emergency

petition. Respondent, who was present at the hearing , told

the trial court that he had received the petition on August 31 and had not y et "had
a chance to get an attorney ." The trial cou rt entere d an order that day requiring that respondent refra infrom spe

nding or otherwis e disposing of any r eceipts from his brother "until further order of court." Two weeks later, respondent (vi a his a ttorn ey) filed a moti on to vacate the tr ial co urt's September

4 order, and, one week after tha t, petitioner

filed a r ule to show cause seeking to recover past-due child support from respondent. At a su bsequ ent he aring f or argum ent on respo ndent 's mot io nto vacat

e the pre liminary

injunction , the tria

l court no ted the a

llegat ion of past-due ch

ild support and rule d that it wo

uld delay ruling on the motion

to vacat e until it ha

d an oppor

tunity to assess whether respondent would actually be liable for past-due support. Petitioner's rule to show cause t hereaf

ter pr oceede d to an evide ntiar y hearing. At the evidentiary he aring, petitioner testified that respondent had paid her no c hild support since March 1981, the last time respondent had had what she characterized as "steady

employment." Oncross-e

xamination, she state d that she did not see

k to recover the c

hild suppor

t pay ments respondent

owed her after that point, b ecause

"he was indigent." During his testimony , respondent agreed that he had not

hadsteady

employ ment since

1981, but he said tha

t he nonet

heless pa idNo. 2--08--0109

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peti tioner some child support from unemployment bene fits he received for one y ear after Marc h 1981. Respondent testified that he paid the money in cash directly to pe

titioner (as oppo s ed to throu gh the court clerk's office, as he had prior to March 1981) and thus that there was no re cord of his having

made the pay ments. At the conclusion of

the hearing , respondent's counsel argue d that interest should not be charged agains t his clien t, bec ause "t he int erest statu te was n't even enacted until January 1, 2000." The trial court

responded that "[t]here was always an inter est on money judgme

nts." The trial court took the matter under advisement and again c ontinued its ruling on re spondent' s motion to va cate the preliminary injunction pending its ruling on the child support arrearage
. At the next co

urt date , respondent's attorney informed the court that the parties were there f or its ruling on respon

dent's m otion to va

cate, a nd the tria

l court re sponded by a skin g, "Di dn't I already tell you no?" Respondent's attorney answered that

the trial court had told the parties that its ruling would depend on its ruling on the merits of the case, and petitioner' s attorney responded

that it was her understanding that the court ha d denied the m otion. The trial cou rt then moved on to
announce its ruling on the issue of the child support arrearag e. The trial court determined that there
was an arrearage , calculated the principal of the arrearag e, and added 9% interest to reach the a mount of the judgment against respondent. After the ruling, respondent's attorney asked the trial court, " just
so the record is clear, are y ouapplying the

interest as provided in 750 ILCS 5/505?" The trial court responded, "I'm a

pplying intere st on the judgment which is at nine p ercent . 505 says what?" After respo ndent 's attorney re layed the lang uage of the statute, which described a method for assessing interest , the trial court responded, "Well, I think that c ertainly

is--did I do it like that way

? No." TheNo. 2--08--0109

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trial court we

nt on to say that it thought its method of calculating interest was reasonable. A fter the trial court entered its judgment, respondent timely appealed. Respo ndent 's first argu ment on ap peal is tha

t the tria l court e rred in d eny ing his mo tion to vacate t h e preliminary injunction against him. Respondent frames his argument as a question of whether the trial court erred in initially granting the preliminary injunction a gainst him, and we consider his argument accordingly . "To justify entry of a prelimina

ry injunction , the movin

g party carries the burden of persuasion on four issues: (1) he or

she possesses a clearly

ascertainable right whichneeds protection; (2) he or she will suffer irreparable injury without the injunction; (3) there is no adequate remedy

at law for his or her injury ; and (4) a likelihood of s uccess on the mer its exists." In re Marriage of Petersen , 319 Ill. App. 3d 325, 336 (2001). The decision to grant or deny
a preliminary injunction rests within the sound discretion of the trial court, and the decision will not be disturbed on review absent an abuse of discretion. People ex r el. Klae ren v. L isle , 202 Ill. 2d 164, 177 (2002). According to respondent, none of the above criteria were met here . We disagree. Onthe first

criteri on, petitioner's c learly ascert ainable right in need of

protection, respondent argues that petit

ioner fa iled to pre sent evid

ence tha t a child su

pport ar reara ge actuall y e xis ted; respondent

argues that, in seeking the pre liminary injunction, petitioner incorr ec tl y stated that respondent

stopped paying

child support in March 19 79, instead of March 1981. Even if such a later-proven

factual discrepancy

could undermine a preliminary inj unction ruling made before resolutionof suchfactual questions, we note that the factual discrepa ncy makes no difference here, be cause petitioner could establish a right to past-due support rega rdless of the date on whi ch th e arrearage be gan to accrue.No. 2--08--0109

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Onthe second crite

rion, irr eparab le harm to

petitione r absent an inju nctio n, respondent argues that a child support obligee has "extensive legal remedies" for unpaid support and thus that
aninjunction was unnecessary . However, the purpose of the preliminary injunction was to prevent respondent

from dissipating assets that could eventually provide for

her legal remedy . For

the same reason, we reject respondent's contention that the third cr iterion--the adequacy

of legal remedies--was not estab lished be cause pe titioner c ould

recover the past-due support through legal remedie s. The presence of the fourth criter ion, the likeli

hood of pe

titioner' s succes s on the me rits, is evident from the trial court's eventual judgment in her favor on the child support issue. Aside from arguing

that there was an insufficient basis for entry of a preliminary

injunction, respondent

also challenges the injunction onthe ground that it violated his rights to procedural due process because it was entered without adequate notice to him. However, respondent admitted on the record that h e recei ved no tice o f the S eptem ber 4 i njun ction hearin g on Augu st 31, and he actually attende d the hearing. We see no problem with the notice provided re spondent here. Responde nt 's second argument on appeal is that the trial court e rred because the relevant statute of lim itat ions bars p etit ioner 's claim. The question of what statute of limitations applies to
a given case presents a question o f l aw to be reviewed de novo
. Travelers Casualty & Surety Co.
v. Bowman , 229 I ll . 2d 461, 468 (2008). The parties agree that, until July 1, 1997, the statute of limitations governing enforce ment of child support orders required that anaction be

brough t within 20 years of

the child support judgment. See 735 ILCS 5/13--218 (West 1996 ). However, on July 1, 1997, the legislature enacted Public Act 90--18, whic h amended the statute of limitations so that "[c]hild support judgments *** may be enforced at any time." 735 IL CS 5/12--108(a) (West 2006). Relying on the 1997 amendment, the trial court concluded that thestatute of limitations

did not barNo. 2--08--0109

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petit ioner 's claim. Respondent asserts that the trial court gave improper retroactive effect to the 1997 amendment. We disagree. Ingeneral , in t he abs ence of langu a ge in the amendment indicating otherwise, statutory amendme nts that modify procedur

al laws--those laws that prescribe the method of enforc ing rig

hts
or the mach

inery for car ry ing on a suit--ma y be applied r

etroactively, while am

endme nts t o substantive laws may

not, except that even

procedu ral amen dments ca nnot be ap

plied retroactively when doing so would

impair a right that is sufficiently well established to be protected under the due process clause of the constitution. In re Marriage of Duggan , 376 Ill. App. 3d 725, 728-29 (2007). Un der th ese rules, "[w]here an amendatory act lengthens a limitations period"--a proc edural law--"the amendme

nt shall g overn al l actions no t previous ly barred." Peterson v. Hinsd ale Wo men's Clinic , 278 Ill. App. 3d 1007, 1012 (1996). (I f the actionwas previously bar red, then the expiration of the limitat

ions peri od would ha

ve beco me an affirmative defense, and a vested r ight, wh ich could not be und one retroactively . See Duggan , 376 Ill. App. 3d at 733-34.) Here , respondent's chi l d support arrearage be gan

in March 1981, and , theref

ore, the previous ly a

pplicabl e 20-y

ear sta tute of limitations had not

run by the time it was extended by the 1997 amendment. Ac cordingly , the trial court correctly

applied the amended statute of limitations to this case. Respo ndent 's third

argument is that the trialcourt erred in refusing to apply the doctrine of la ches to ba r petitioner's claim. Lachesis an equitable doctrine that precludes the assertion of a claim by a li ti ga nt wh os e u nr ea so na bl e d el ay i n r ai si ng th at cl ai m h as pr ej ud ic ed th e o pp os in g p ar ty. In re Marriage of

Smith , 347 I ll. App. 3d

395, 401 ( 2004). Th

e party assert ing laches as a def

ense to a claim must prove two elements: (1) lack of diligence by

the party asse

rting the claim; and (2) injury or prejudice as a result of the de lay to th e party ass ertin g laches
. Smith , 347 Ill. App. 3d atNo. 2--08--0109

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401. Th e d ec is io n a s t o w he th er to ap pl y laches to a given case rests within the sound discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Smith , 34 7 Ill
. App. 3d at 401. Even assuming that the 26-y

ear gap between

the date respondent began to fall behind on his child support payments and the da te petitioner brought suit evinces a lack o f dili gence on petit ioner 's part, we see no prejudice to respondent as a re sult of the delay. Respond ent argues that he was prejudiced

by t he passa ge of ti me beca use it ca used him to

be unable to recall t he amount s and dates of cash pay ments he ma

de to res pondent a fter Mar ch 1981. H owever , as petiti oner note s, this is the precise argument this court rejected in Smith . See Smith , 347 Ill. App. 3d at 402-03 (attributing the deficiencies in the husband's records of his alleged support pay ments to the husband's choice not to
use a more traceable method of pay ment, notto the wife's delay in bringingsuit). Here, as in Smith , respondent

allege d that he p aid addit i onal sums w ith cash and without making any record of the pay ments, and it was this choice, not the delay in bringing suit, that forestalled his producing evidence of hi s alleged pay ments. Even if respondent's recollection of his alleg ed payments had be en perfect, he still

would have been without any other evidence to support his claim that he made the pay ments, a claim that petitioner direc tly r efuted i n her tes timony . Thus, we see no pr

ejudice to respondent

as a result of the delay

in brining suit, and we agree with the trial court that

the doctrine of laches should not bar petitioner's claim in this case. The real cru

x of responden

t's laches argument is that he sees infirmity in petitioner's declining to pursu e supp ort fr om hi m duri ng a period in which the

y both seem to

agree he was without means to provide it, before changing course and deciding to pursue support upon learning that re spondent
was ex pe ct in g a wi nd fa ll fr om a p ro pe rt y sale. Petitione r appears to us to have chosen a prudentNo. 2--08--0109

1 We note that the amendment respondent reference s has itself been amended. Compare 750 IL CS 5/505 (Wes t2000) ("A support obligation *** which becomes due a nd remains unpaid for 30 da ys or more shall accrue interest at the rate of 9% pe r annum") with 750 ILCS 5/505(b) (West 2006) ("A support obligation *** which becomes due and remains unpaid as of the end of each

month *** shallaccrue simple interest as set forth in Section 12--109 of the Code of

Civil Proce dure [(73 5 ILCS 5/12--109 (West 2006))]"). -8- course: she forwent pursuing support during responde nt's period of unemploy

ment, when

doing so would have been expensive and futile, but, once she learned that respondent might be able to meet his obligation, she pursued the suppor t that eve n respond

ent does n

ot contes t she was r

ightful ly owed. This is not the type of inequitable r esult the doctrine of laches is desig ned to pre vent. Respo ndent 's final argumen t is t hat th e tria l cour t's assessment of interest should be vacated because the portion of sect

ion 505 of t

he I llinois Mar

riage and Disso lutio n of Ma

rriage Act (750 IL CS 5/505 (West 2000)) mandating that 9% interest be assessed on past-due child support

was not enacted unti l afte r respo ndent 's arrea rage began to accumulate. See Pub. Act 91--397, eff. January 1, 2000. 1 However, as petitioner notes, before the enactment of the statutory amendment respondent refer ences, "the allowance of interest on past-due pe riodic support payments *** [lay ] within the sound discretion of the trial judge." Finley v. F inley , 81 Ill. 2d 317, 332 (1980). Accordingly, even if the sta tutory amendme

nt respon dent cite s was not in

effect at the relevant times in this case, the trial court could still independently have awarded interest as an application of i ts discretion. The record demonstrates that the trial court followe d just this pa th: when r

esponde nt raised this same argument to the trial court, the trial court re sponded that "[t]her e was alway s an inter

est on money judgments." After

the trial court

announced its final ruling, including the interest awa rd, respondentNo. 2--08--0109

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mentioned

the revi sed statu

te, and the trial c ourt res

ponded by

asking w hat the a mended st

atute sa id and by noting that t he cou rt did not fo llow the st atute 's provision s exactly . Beca use these comments demonstr ate that the trial court

did notbase i ts in teres t award on th e stat ute, w e rejec t resp onden t's argume nt that the trial cou rt imprope

rly relied on the statu

te in dec iding to a

ward inte rest. For the foregoing reasons, justice de layed is not alway s justice denied. We affir m t he ju dg me nt of

th e c ir cu it co ur t o f D e K al b C ou nt y. Affirmed. BOWMAN and SCHOSTOK, JJ., concur.