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NOTICE

Decision filed 11/29/06. The text of

this dec ision m ay be changed or

corrected prior to the filing of a

Petition for Re hea ring o r the

disposition of the same.

NO. 5-06-0046

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

_________________________________________________________________________

In re MARRIAGE OF ) Appeal from the

) Circuit Court of

REBECCA EDWARDS, ) Jefferson County.

)

 Petitioner-Appellant, )

)

and ) No. 04-D-3

)

WILLIAM A. EDWARDS, ) Honorable

) James M. Wexstten,

 Respondent-Appellee. ) Judge, presiding.

_________________________________________________________________________

PRESIDING JUSTICE SPOMER delivered the opinion of the court:

The partiesto the present appeal, petitioner Rebecca Edwards and respondent William

A. Edwards, were married on April 11, 1987. Their marriage was dissolved by a final

judgment for the dissolution of the marriage, entered in the circuit court of Jefferson County

on March 24, 2005. The judgment incorporated a marital settlement agreement, in which the

parties agreed that the circuit court would reserve jurisdiction relating to the issue of the

classification of the petitioner's right to past-due child support in connection with the 1985

dissolution of her previous marriage and the attorney fees associated therewith. Following

the 1985 dissolution, a purge order was entered, finding that the petitioner's ex-husband,

Robert Eugene Mattingly, was in contempt for his failure to pay child support as previously

ordered, and a judgment, including payment arrangements, was entered against him in the

circuit court of Montgomery County on April 30, 2004. The judgment ordered Mattingly to

pay $39,000 in past-due child support and $2,800 in attorney fees.

In the present case, on March 9, 2005, counsel for the respondent propounded
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supplemental interrogatories to the petitioner. The petitioner submitted an objection to the

supplemental interrogatories, claiming that any sums of money paid to the petitioner pursuant

to the above-mentioned purge order and judgment were not subject to claims by the

respondent in the present case. The circuit court denied the petitioner's objection, concluding

that the judgment found in the purge order was marital property. In response, the petitioner

requested that the court certify the question for interlocutory appeal. On January 17, 2006,

the circuit court certified the following question for appeal pursuant to Supreme Court Rule

308 (155 Ill. 2d R. 308):

"Whether a judgment relating to the issues of the award of child support and attorney's

fees associated therewith in a dissolution of marriage proceeding between one spouse

and a former spouse is marital property in the current dissolution proceeding."

This court granted leave to appeal, and for the reasons that follow, we answer the certified

question in the negative with regard to the past-due child support but in the affirmative with

regard to the attorney fees associated therewith. Accordingly, we affirm that part of the

circuit court's order denying the petitioner's objection to the respondent's supplemental

interrogatories with regard to the attorney fees, reverse the order with regard to the past-due

child support, and remand for further proceedings consistent with this opinion.

We begin by noting the positions taken by the parties. The petitioner contends that

although the issue presented is a matter of first impression in Illinois, courts in Missouri and

Kentucky have addressed the same issue under statutory schemes "substantially identical"

to the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Act) (750 ILCS

5/101 et seq. (West 2004)). The petitioner posits that the opinions of the Missouri and

Kentucky courts support the position that the judgment for the child support arrearage is not

marital property in this case because the right to receive child support that underlies the

judgment for the arrearage had been acquired prior to her marriage to the respondent.
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Accordingly, the petitioner contends, under the "source-of-funds rule" utilized in Illinois to

classify property as marital or nonmarital, the right to the arrearage may be traced to the

judgment dissolving the petitioner's previous marriage to Mattingly and awarding child

support to the petitioner for the benefit of her children, a judgment that preceded the

petitioner's marriage to the respondent and the purge order and judgment for the arrearage.

The petitioner agues that because the source-of-funds rule classifies property on the basis of

when the claim to the property accrued and because the petitioner's claim to the child support

accrued prior to her marriage to the respondent, the claim is nonmarital property. The

petitioner points out that personal injury actions and workers' compensation actions in Illinois

operate in this manner, and she argues that by analogy the property at issue in the case at bar

should as well. The petitioner concedes, however, that the child support arrearage and the

attorney fees associated therewith must be analyzed separately and that a differing result

could be reached for each.

The respondent, on the other hand, contends that both the arrearage and the attorney

fees award are marital property and should have been divided accordingly. In support of his

position, the respondent first points to section 505(d) of the Act, which states that "[a]ny new

or existing" child support order entered by the circuit court under the Act "shall be deemed

to be a series of judgments against the person obligated to pay support thereunder," with each

judgment to be in the amount of each payment or installment of support and with each

judgment "deemed entered as of the date the corresponding payment or installment becomes

due under the terms of the support order." 750 ILCS 5/505(d) (West 2004). The respondent

also points to section 503(a) of the Act, which states that all property acquired after the

marriage is presumed to be marital property, except that which is excluded by section 503(a).

750 ILCS 5/503(a) (West 2004). The respondent contends that, taken together and applied

to the case at bar, these two sections dictate that because past-due child support and the
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associated attorney fees are not excluded by section 503(a) and because, pursuant to section

505(d), a cause of action for a child support arrearage does not accrue on the date of a

previous child support order but accrues on each date a child support obligor fails to make

a court-ordered payment, each payment that was due but unpaid to the petitioner during her

marriage to the respondent resulted in a claim that accrued during the marriage and so must

be treated as marital property under the Act. The respondent claims that the entire $39,000

referenced in the purge order and judgment accrued during the course of the parties'

marriage.

The petitioner responds to the respondent's argument by claiming that section 505(d)

of the Act "is an aid to collection of support for the child in the case in which it was entered"

and "does not and cannot affect the classification of child support payments in a subsequent

marriage." The petitioner notes as well that even if one were to construe the judgments for

unpaid support as coming due during the marriage, the source of the funds of the judgments

would still be the underlying judgment for dissolution that created the obligation on the part

of Mattingly to provide child support and the right of the petitioner to receive it. 

With regard to the child support arrearage, we agree with the petitioner. The Act

clearly and unequivocally defines marital property as "all property acquired by either spouse

subsequent to the marriage," subject to certain exceptions. 750 ILCS 5/503(a) (West 2004).

Although no reported decisions in Illinois address the question of whether a child support

arrearage is marital property, Illinois courts have addressed various other types of judgments

and classified them as marital or nonmarital on the basis of whether the underlying rights

accrued during the marriage. For example, the Illinois Supreme Court has held that with

regard to a workers' compensation claim, the dispositive question is when the claim accrued.

In re Marriage of DeRossett, 173 Ill. 2d 416, 421 (1996). If the claim accrued during the

marriage, then the plain language of section 503(a) dictates that it is marital property. In re
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Marriage of DeRossett, 173 Ill. 2d at 421. Conversely, if the claim accrued prior to the

marriage, it follows that the plain language of section 503(a) dictates that it is not marital

property. Our colleagues in the Fourth District have reached the same conclusion with regard

to the classification of personal injury actions as marital or nonmarital property. In re

Marriage of Burt, 144 Ill. App. 3d 177, 178 (1986).

The respondent's contention to the contrary notwithstanding, the source-of-funds rule

does not expand the list of exceptions to marital property found in section 503(a). Rather,

the source-of-funds rule is an interpretive aid used by the courts to determine, within the

meaning of the plain language of section 503(a), whether property was acquired prior to or

subsequent to the marriage in question and, thus, whether it is or is not marital property. In

the case at bar, the right to the child support arrearage may be traced to the judgment

dissolving the petitioner's previous marriage to Mattingly and awarding child support to the

petitioner for the benefit of her children, a judgment that preceded the petitioner's marriage

to the respondent and the purge order and judgment for the arrearage. Absent that underlying

judgment, no right to child support would exist, and the purge order and judgment would

have no legal validity. The existence of section 505(d) of the Act does not change our

analysis. We agree with the petitioner that section 505(d) is an aid to the collection of

support for the child in the case in which it was entered and does not and cannot affect the

classification of child support payments in a subsequent marriage. Put simply, section 505(d)

was never intended to serve the latter function, and we decline to invoke it to that effect.

Because the source-of-funds rule classifies property on the basis of when the claim to the

property accrued and because the petitioner's claim to the child support accrued prior to her

marriage to the respondent, the claim is nonmarital property.

We are mindful of the respondent's claim that because the children in the case at bar

have all reached the age of majority and no longer receive support from the petitioner,
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classifying the arrearage as nonmarital property would essentially give a windfall to the

petitioner. We note that it has long been the law in Illinois that it is not inappropriate to pay

a child support arrearage directly to the custodial parent, because that parent has necessarily

expended the sums that would have been covered had the previously ordered child support

payments been made when due. See, e.g., Neeland v. Neeland, 17 Ill. App. 3d 803, 806

(1974). With regard to the respondent's claim that he helped support the petitioner's children

during their minority and therefore should receive some form of reimbursement from the

arrearage, we note as well that Illinois has a long history of cases which state that a

stepparent does not have a duty to support a stepchild. See, e.g., McMahill v. Estate of

McMahill, 113 Ill. 461, 466 (1885). Although contributing to the support of a stepchild is

laudable, it is a voluntary undertaking, not a requirement. Furthermore, we note that many

factors unrelated to the welfare of the children might have motivated the respondent's

decision to contribute to the support of his stepchildren, including the promotion of the

harmony and stability of his marriage to the petitioner.

Finally, we note that the purpose of child support paid under the Act is to provide "for

the reasonable and necessary physical, mental[,] and emotional health needs of the child"

(750 ILCS 5/505(a) (West 2004)), not to provide support to the stepparents of children. See,

e.g., In re Marriage of Florence, 260 Ill. App. 3d 116, 121 (1994) (child support is for the

benefit of the child); accord Lykins v. Lykins, 34 S.W.3d 816, 822 (Ky. App. 2000) (under

the Kentucky statutory scheme, which is virtually identical to the Illinois scheme, support is

meant to benefit the child, not the parties to the current marriage). If a child support

arrearage from the dissolution of a previous marriage was classified as marital property in

the dissolution of a subsequent marriage, the net effect of that classification in many cases

would be to thwart the Act's intention of providing support for the children, by partitioning

the arrearage between the divorcing parties as marital property, rather than allowing it to be
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used to benefit the children. Although the children in the case at bar have all reached the age

of majority and no longer receive support from the petitioner, in other cases very different

circumstances could exist. For example, if the children at issue were 10 and 12 years old and

an arrearage for their support in a substantial amount existed from the previous marriage of

one of their parents and that arrearage was classified, as the respondent suggests it should be,

as marital property in the dissolution of the subsequent marriage, then the divorcing

stepparent in the subsequent marriage would be entitled to a marital-property stake in the

arrearage, even if that stepparent had never spent a penny to support the stepchildren and

despite the fact that the arrearage represented money specifically ordered by a court to be

paid to the custodial parent for the benefit of the children. The practical consequences for

trial courts forced to consider the equitable proportioning of an arrearage classified as marital

property would be nightmarish. That said, a stepparent who has chosen to voluntarily

contribute to the support of stepchildren is not without recourse just because the arrearage

is classified as nonmarital property. To the contrary, the appropriate remedy in such a case

is found in section 503(d)(3) of the Act (750 ILCS 5/503(d)(3) (West 2004)), which

specifically requires the trial court to consider the value of the nonmarital property of each

party–which would include the proceeds realized from a judgment for a child support

arrearage from a previous dissolution–when apportioning "in just proportions" the marital

property in the subsequent dissolution. It is under this section that a stepparent could make

an equitable argument for some type of setoff in the apportionment of the marital property

as a reimbursement for voluntarily contributing to the support of the stepchildren during the

time that the arrearage proceeds had not yet materialized for the custodial parent.

With regard to the attorney fees associated with the child support arrearage, we agree

with the respondent's assertion that in connection with the previous dissolution the attorney

fees award is marital property. Applying the same source-of-funds analysis used to
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determine that the child support arrearage is nonmarital property, we conclude that the

attorney fees awarded to the petitioner in this case–the source of which, the petitioner

conceded at oral argument, was the marital estate–are marital property and are subject to

division accordingly.

For the foregoing reasons, we answer the certified question in the negative with regard

to the award of past-due child support but in the affirmative with regard to the attorney fees

associated therewith. Accordingly, pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d

R. 366(a)(5)), we affirm that part of the circuit court's order denying the petitioner's objection

to the respondent's supplemental interrogatories with regard to the attorney fees, reverse the

order with regard to the past-due child support, and remand for further proceedings consistent

with this opinion.

Certified question answered; order partially affirmed and partially reversed; cause

remanded.

WELCH and DONOVAN, JJ., concur.