### 1 NOTI CE Decisi on fi led 11 /29/ 06. The textof this dec ision m ay be changed or corrected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. 

### NO. 5-06-0046 IN THE APPELLATE COURT OF ILLINO IS FIFTH DISTRICT

_____________________________________ _____________________________ ______ _ In re MARRIAGE OF ) Appeal fr om the ) Circui t Court of REBECCA EDWARDS, ) J ef fe rs on Co un ty. ) Petitioner-Ap pellant, ) ) and ) No. 04-D-3 ) WILLIAM A. EDW

ARDS, ) Honorab le ) James M. Wexstten, Respondent-Appellee. ) Judge, pr esiding.

__________

___________________________________________ ___________________

_ PR ES IDIN G JU ST ICE SPO M ER delive red the opin ion o f the c ourt: The parti es to the pr esent appe al, petitioner RebeccaEdwards and respondent Willi am A. Edw ards, w ere m arried o n A pril 11, 1 987 . The ir marria g e was dissol ved by a final judgmentfor the di ssolution of the marriage , ent ered in the c ircuit cour t of Jefferso n C oun ty
on March 24, 2005. The j udgment incorpor ated a mari tal s ettl ement agreement , in whic h the partie s agreed that the circui t court would reser

ve juri sdict ion rel ating to the is sue of th e class ific ationof the pet iti oner' s right to past -due chil d support in connecti on with the 1985 dissolutionof her previ ous marri age and the attorney fees ass ociat ed therewit h. Foll owing the 1985 dissolution, a purge order was entered, finding t

hat the petitione r 's e x-husband, Rob ert Eugene M attingly, w as in co ntem pt for h is failure to pay ch ild sup port as prev iously ordered, and a judgment, including payment arrangement s, was ent ered agai ns t him i n t he circuit court of Montgomery County on Apri l 30, 2004. The judgment orde red M attingly to pay $39,000 in past-due child support and $2,800 in att orney fees. In th e presen t case, on March 9, 2005, couns el for t he respondent

propounded

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supplementa l inter

rogatories t o the pet iti oner. The petiti oner submit ted an object ion to the supplemen tal int errogat ories , cl aiming t hat any sums of money pai d to the pe titioner pur suant to the above -ment ioned purge order and judgment were not subj ect t o clai ms by the respondent

in th e pr ese nt ca se. Th e c irc ui t co ur t d en ied th e p eti tio ne r's object ion, c oncluding that the judgment

found in the purge order was marita l proper

ty . In r esponse, the pet iti oner request ed that

the co urt certif

y the que stion f

or interlo cutory ap peal. On January17, 2006, the circui t court

certi fiedthe fo llow ing q uestion for ap peal p ursua nt to Sup reme Co urt R ule 308 (15 5 Ill. 2d R. 308 ): "Whethera judg men t relating to the iss ues o f the a wa rd of child support and att or ne y's fees associ ated therewith in a dissolutionof marriage proceeding between on e spouse and a fo rme r spo use is m arita l pro per ty in the cur ren t diss olu tion pro cee din g." This court

granted l eave to appea l, and for the r easons that fol low, we answer the c erti fied questi on in the ne gative with regard to the pa st-due child s upport but in the affirm ative w ith regard to the attor

ney fee s associ ated ther ew ith. A ccordingly, we affirm that part of t he circuit court' s order de nyi ng the pe titioner' s objection to t he respondent 's s upplemental inter rogatories with regard to the a ttorney fe es, reve rse the orde r with regard t o the past- due child s upport, and remand for fur ther pr oceedings c onsist ent with t his opi nion. We begin by noting the positions taken by the parties. The petit ioner contends t ha t althoughthe is sue prese ntedis a matt er of fir st i mpressionin Il linoi s, cour ts i n Missouri and Kentuckyhave add resse d the s ame issue u nder statutory sc hem es "su bstan tially identical" to the Illino is M arriage and D issolutio n of M arriage Ac t (herei na ft erth e Act) ( 750 ILCS 5/101 et seq. (West 2004)) . The peti tioner posit s that

the opini ons of the Missouri and Kentuckycourts support t he posit ion that the judg men t for the child su ppo rt arreara ge is not marita l propert

y i n this case becaus e the ri ght to r eceive ch ild sup port that unde rli es the judgm ent for t he arre arage had b een a cquire d prio r to her marr iage to the res pon dent.

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A cc or di ng ly, the pet iti oner conte nds, under the "source- of-funds rul e" uti lize d in Illinois to class ify prop erty as ma rital or no nm arita l, the ri ght to t he arrearage may

be trac ed to the judgmentdissolv ing the petition er's prev ious m arriage to M attingly and aw ardin g chil d support to the petitio ner for t he benefit

of her chi ldren, a judgment t hat prec eded the pe titi on er 's marriage to the r espondent and t he purge order

and judgment for

the arrear age. The petitioner ague s that because the source- of-funds rule cl assif ies propert

y on t he basis of when the cla im to the p rope rty accrue d and beca use th e petition er's claim to the child supp ort accruedp riorto her marriage t o the res pondent, the cl aim is nonmar italpropert y. The petitioner

points out that

person al injury acti ons and w orke rs' com pens ation a ctions in Illinois oper ate in this mann er, and she argues that by analogy the proper

ty at is sue in t

he case at

bar should as w ell. The petitioner con cedes, how ever, that the child sup port arrear age and the attor neyfees ass ociat ed there with must be ana ly zed separ a tely and th at a differing result could be re ached for each. The respondent , on the other hand, contends t hat both the arrear age and the attorney fees aw ar d a re m ar ita l p ro pe rty a nd sh ou ld ha ve be en di vi de d a cc or di ng ly. In sup port o f his posit ion, the res pondent fi rst points t o secti on 505(d) of t he Act, whichstat es that "[a]ny new or existing" child sup port order ent ered by the ci rcuit

court under

the Act"shallbe deemed to be a seri es of jud gm ents against the pers on obligat ed to pay support t hereunder, " with each judgmentto be in the am oun t of ea ch pa yment or insta llm ent of suppor t and with e ach judgment"deemed enter ed as of the date the corres ponding payment or inst allment becomes due under the terms of t

he support

order. " 750 ILCS 5/505(d) ( West 2004). The r espondent also points to section 503(a) of the Act, which stat es that all property

acquire d af

ter the marriage is presu med to be m arital pro perty, exc ept tha t wh ich is excluded by secti on 503(a). 750 ILCS 5/503(a) ( West 2004). The r espondent cont ends that , taken together and appl ied to the case at bar, these t wo sections dictate that because past- due chil d support and the

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associ atedattorney fees are not excl uded by s ecti on 503(a) and bec ause, pur suant t o secti on 5 05 (d), a cause of action for a c hild s upport ar rearage does not acc rue on the date of a previous child s upport or der but accr ues on each date achild s upport obl igor fai ls t o make
a court- ordered pay

ment, eac h payment

that was due but

unpaid to t

he petitioner

during her marriage to the respondent resulted in a cl aim that accrued during the marriage and so must be treat ed as marit al proper ty under the Act. The res pondent clai ms that t he enti re $39,000 referenc ed in the purge order and j udgment accrued during the course of the parties' marriage
. The petitioner r esponds to t he respondent 's argument by cl aiming t hat section 505(d) of the A ct "is an aid to coll ecti on of support for the c hild i n the case in whic h it was ent ered" and "does not and cann ot affect the classific ation o f child supp ort paym ents in a subse quent
ma rriag e." The petition er no tes as w ell that ev en if one were to const

rue the j udgments for unp aid support a s coming due during t he marria ge, the source of the fun ds of the jud gm ents
wo uld still be the un derlying judgme nt for dissolution tha t created the ob ligation on the p art of M attin gly to p rov ide c hild sup por t and the r igh t of th e pe tition er to rece ive it
. With regard to the c hild support arrear age, we agree wit h the pet iti oner. The Act clearly and u nequ ivoca lly defines marita l prop erty as "all pro perty acquire d by eit her spouse subsequent

to the marriage," subj ect to certain exceptions. 750 IL CS 5 /503(a) (W est 2004). Although no re ported decisio ns in Illin ois ad dress the qu estion of w hether a ch ild support
arrear age is mari tal property , Il linoi s court s have addres sed vari ous other ty pes of judg men ts and cl as si fi ed t

hem a s ma rital or no nm arital on the ba sis of w hethe r the un derlying rig hts accruedd uring the mar riage. F or ex amp le, the Illino is Sup reme Co urt has held th at with regard to a workers' compensati on clai m, the di spositive questi on is when the cl aim accrued. In re M arriag e of D eRo ssett , 173 Ill. 2 d 416, 421 (1996). If the c laim accr ued during t

he marriage , then th e p lai n l an gu ag e o f s ec tio n 5 03 (a ) d ict ate s th at i t is m ar ita l p ro pe rty. In re

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Marriage of D eRo ssett , 173 Il l. 2d a t 421. Conver sely , if t he clai m accrued pri or to t he
mar riage, it follow s that the plain la ngu age o f sectio n 50 3(a) d ictates th at it is not marita l pr op er ty. Our collea gues in t he Fourth D istrict have reached the same conclusion with regard to the cl assif

icat ion of pers onal inj ur y acti ons as ma rital o r no nm arita l pro per ty. In re Marriage of Burt , 144 Ill. App. 3d 177, 178 (1986). The respo nden t's conten tion to the contrary notwiths tanding, the so urce-o f-fun ds rule does not expand the lis t of except ions t o marita l propert y found i n secti on 503(a). R ather, the source- of-funds rul e is an i nterpr etive aid used by the cou rts to determ ine, within t he meaning of the pl ain language of se ction 5 03(a ), wh ether p rope rty was a cquire d prio r to or subsequent

to the m arriage in ques tion an d, thus , wh ether it is o r is not marital prop erty. In the case a t bar, the right to th e child supp ort ar rearage may be traced t o the judgment dissolving the pe titioner's pre viou s ma rriage to M attingly and aw arding child support to the petitioner

for the be nefit

of herch ild re n, a ju dg m en t th at p re ce de d t he pe titi on er 's marriage to the res pondent and the purge order and judgment for

the arr earage. Absent that underlying judg men t, no rig ht to ch ild sup port w ould exist, an d the p urge orde r and judg men t wo uld have no le gal val idit

y. The exist ence of sect ion 505(d) of the Act does not change ou r analysi s. We agree with the petitioner t hat section 505( d) i s an aid t o the col lect ion of supp ort for the ch ild in the case in which it was entered and does not and cannot affect the class ific ationof ch ild sup port p aymen ts in a subsequent marriage
. Put simpl y, secti on 505(d)
was nev er in tend ed to serv e the latter fun ction , a nd w e dec line to in vok e it to that e ffec t. Because the sour ce-of

-funds rule cl assif

ies pr operty

on the basi s of when the cl aim to t he prop erty accru ed an d bec ause the pe titioner's claim to the child supp ort accrued pr ior t o her
m ar ria ge to th e r es po nd en t, th e c lai m is n on m ar ita l p ro pe rty. We are mindfulof the re spondent' s clai m that becaus e the childr en in the case at bar have all r eached the a ge of majorit y an d no lon ger receive su pport from the petitioner,

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class ify ing the arr earage as nonmar it al proper ty would essent ially gi ve a windfallto the petitioner. We note that i t has l ong been the l aw in Ill inois that it is not inappropriat e to pay
a child s upport ar

rearage directly

to the c ustodi al pare nt, be cause that parenthas n ecess arily expended the sums t

hat would have been co vered ha d the previo usly ordered child sup port payme nts been made w h en d ue. S ee, e.g. , Neeland v. Neel and , 17 Il l. App. 3d 803, 806 (1974). With regar d to the r espondent' s clai m thathe helped suppor t the pe titioner' s chil dren dur ing th ei r mi nor it

y andth er efo re sho ul d r ece iv e s ome f orm of r ei mbur se ment

fr om th e arrear age , we no te as w ell that Illino is has a long history of cases wh ich state that a steppar ent doe s no t hav e a d uty to s upp ort a step child . See , e.g. , McMa hill v . E state of McMahill , 113 Ill. 461, 4 66 (1 885 ). Altho ugh contrib uting to the su ppo rt of a s tepch ild is laudabl e, it

is a v ol unt ary und ertaki ng, not a r eq ui re men t. Fur

th ermor e, we note that many factors unre lated to the w elfare of the child ren m ig ht ha ve m ot iv ate d t he re sp on de nt 's decisi on to contribute to the support of his stepchi ldren, including the promoti on of the harmo ny and stability of his marriage to the p etitioner. Fi na lly, we note th at the p urpo se of child support pa id under t he Act is t o provide " for the reasonabl e and necessaryphysi cal, mental[, ] and emoti onal heal th n eeds of the chi ld" (750 ILCS 5/505(a) ( West 2004)), not to pr ovide support to t he steppar ents of

childr en. See, e.g. , In re Marriage of

Florence , 260 Ill . App. 3d 116, 121 (1994) (c hild s upport i s for the bene fit of the chi ld); accord Lykins v. Lykins , 34 S.W.3d 816, 822 (Ky . App. 2000) (under the Ken tucky statutoryscheme, wh ich is virtu ally identica l to the Illino is sche me, su ppo rt is meant to benefi t the c hild, not the parti es to t he current

marriage ). I f a chil d s up port
arrear age from the di ssolution of a pre vious marr iage was cl assif ied as mari tal prop er ty in the dissolution of

a subsequent

marriage , the net effect of that class ific ation in many cases wo uld be to thwart

the A ct's intention of provi ding support for the c hildr en, by

parti tioni ng the ar re ar ag e b etw ee n t he di vo rc in g p ar tie s a s m ar ita l p ro pe rty, rather than al lowing it t o be

### 7

used to benefit

the childr en. Although the chi ldren i n the case at bar have all reached t he age of majorit y and no l onger rece ive support from the petitioner, in other cases very differe nt circumst ances could exi st. For example, if the childr en at is sue were 10 and 12 year s old and
an arrear age for their s upport i n a substantialamount exist ed from the pr evious marriage of
one of thei r parent s and that arrearage was class ifie d, as t he respondent

suggests it s hould be,
as marita l proper

ty in the di ssolution of the subsequent marriage , then the divorcing steppar ent in the s ubsequent marriage would be ent itl ed t o a marita l-pr operty stake i n the
arr ear age, even if t

hat st epparent

had never spent

a penny t o support t

he stepchi ldren and desp it e the fa ct that the arrear age repre sented money specifi call y or dered by a court t o be paid to the c ustodi al pare nt for t he benefit

of the chi ldren. The practi cal conse quences for tri al cour ts forc ed to consider the equi table proport ioning of an arrearage clas sifi ed as marit al pr o perty wo uld b e nigh tmarish . Tha t said, a ste ppar ent w ho h as ch osen to vo luntarily contribut e to the s upport of s tepchi ldren i s not without recour se just because the arrearage is cla ss ifi ed as no nm ar ita l p ro pe rty. T o t he co nt ra ry, the appropriate remedy in such a case is fou nd in section 503 (d)(3) o f the A ct (7 50 ILCS 5/503(d)( 3) (West 2004) ), which spec ifically requir es the t rialcourt t o consider

the value of t

he nonmarit al proper

ty of each pa rty– which wou ld include the p roceeds rea lized from a judgm ent for a ch ild support
arrear age from a previous dissolution–when apportioning "i n just proport ions" t

he marit al prop erty in the subs eque nt disso lution. It is u nder this secti on that a steppar ent coul d make an equit able ar gument for some t ype of s etoff i n the appo rtionm ent of the m arital pro perty
as a reimburs ement for voluntari ly contributing t o the support of the stepchi ldrenduring the time th at the a rrearag e pro ceed s had not yet m aterialize d fo r the cu stodial p arent. With regard to the attor

neyfees ass ociat ed with the child s upport ar rearage , we agree with the respondent 's a ssertion that in connect ion with t

he previous dissolution t he att orney fee s award is marital property . Applying the same source-of-funds analy si s used t o

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determi ne that t

he chil d support arrear age is nonmari tal proper ty , we conclude t hat the
a ttorney fe es awarded to t he peti tioner

in thi s case–t

he source of which, the pet iti oner conceded at oral a rgum ent, w as the m arital estate –are m arital pro perty and are su bject to di vi sio n a cc or di ng ly. For the fo rego ing rea sons , we a nsw er the c ertified ques ti on i n the neg ative with rega rd to the award of past -due chil d support but in the affirmat ive with r egard to t he att orney

fees associ atedtherewit

h. Accordingly, pursuant to Supreme Court Rul e 366(a)( 5) (155 Il l. 2d R. 366(a)( 5)), we affirm that part of the circui t court 's order deny ing the pe titioner' s object ion to the res pondent' s supplement al int errogat ories with regard to the attor neyfees, revers e the orderwith regard to the past -due chil d support, and remand for fur ther pr oceedings c onsist ent with thi s opini on.
Certif iedquesti on answered; or der part ially affirmed a nd part ially reversed; cause remanded.

WE LC H an d DO NO VA N, JJ., concu r.