{ "id": 256279, "name": "BONNIE JEAN BURWELL, Plaintiff-Appellant, v. LLOYD C. BURWELL, Defendant-Appellee", "name_abbreviation": "Burwell v. Burwell", "decision_date": "2001-08-03", "docket_number": "No. 4 \u2014 00\u20140407", "first_page": "206", "last_page": "213", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 206" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "706 N.E.2d 895", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "902-03" }, { "page": "902" }, { "page": "902-03" } ], "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352894 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "855-56" }, { "page": "855" }, { "page": "855-56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0845-01" ] }, { "cite": "410 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "19" } ], "opinion_index": 0 }, { "cite": "81 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481723 ], "year": 1980, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0317-01" ] }, { "cite": "734 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 296", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140065 ], "year": 2000, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0296-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] }, { "cite": "701 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "187" }, { "page": "187" }, { "page": "189" }, { "page": "188" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221435 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "509" }, { "page": "509" }, { "page": "512" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0508-01" ] }, { "cite": "1987 Ill. Laws 1", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "621 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "123-24" } ], "opinion_index": 1 }, { "cite": "250 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2920453 ], "year": 1993, "pin_cites": [ { "page": "235-37" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/250/0232-01" ] }, { "cite": "553 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "96" } ], "opinion_index": 1 }, { "cite": "196 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491944 ], "year": 1990, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/196/0101-01" ] }, { "cite": "1984 Ill. Laws 2747", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 1 }, { "cite": "687 N.E.2d 1080", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1086" } ], "opinion_index": 1 }, { "cite": "293 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847525 ], "year": 1997, "pin_cites": [ { "page": "33" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/293/0025-01" ] }, { "cite": "410 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "19", "parenthetical": "in dissolution of marriage cases, orders for future periodic payments do not draw interest unless the trial court so exercises its discretion" }, { "page": "19" }, { "page": "19" } ], "opinion_index": 1 }, { "cite": "81 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481723 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "332" }, { "page": "331-32" }, { "page": "331-32" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/81/0317-01" ] }, { "cite": "701 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "189" } ], "opinion_index": 1 }, { "cite": "299 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221435 ], "year": 1998, "pin_cites": [ { "page": "512-13" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/299/0508-01" ] } ], "analysis": { "cardinality": 695, "char_count": 17536, "ocr_confidence": 0.78, "pagerank": { "raw": 9.240339569565078e-08, "percentile": 0.5109448465914422 }, "sha256": "7a62b8a5110ac0daaf97b6de5c22903c955ea96a5edf1670364cd7a0923376ea", "simhash": "1:a03bce7a7b4dbce4", "word_count": 2975 }, "last_updated": "2023-07-14T20:56:29.143572+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BONNIE JEAN BURWELL, Plaintiff-Appellant, v. LLOYD C. BURWELL, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn January 2000, the trial court entered judgment in favor of plaintiff, Bonnie Jean Burwell, and against defendant, Lloyd C. Bur-well, and awarded Bonnie $15,100 in unpaid child support. The court later denied Bonnie\u2019s request for prejudgment interest on the unpaid support.\nBonnie appeals, arguing that the trial court erred by not awarding prejudgment interest in accordance with section 12 \u2014 109 of the Code of Civil Procedure (Code) (735 ILCS 5/12 \u2014 109 (West 1998)). We reverse and remand.\nI. BACKGROUND\nIn March 1977, the trial court entered an order dissolving the parties\u2019 marriage, granting custody of their only child, John (born November 3, 1976), to Bonnie, and ordering Lloyd to pay $100 per month in temporary child support, beginning April 1, 1977. In November 1977, the court entered an order setting permanent child support at $100 per month.\nIn September 1999, Bonnie filed a motion for entry of judgment, seeking $23,200 in unpaid child support that had accrued between April 1, 1977 (the date of the initial temporary order for child support), and November 3, 1994 (the date that John reached 18 years of age). Bonnie also sought prejudgment interest on the child support ar-rearage and attorney fees.\nIn January 2000, the trial court entered an order pursuant to the parties\u2019 agreement, awarding Bonnie $15,100 in unpaid child support. The court reserved ruling on the questions of interest and attorney fees. Following a hearing later that month, the court granted Bonnie\u2019s request for attorney fees but denied her request for prejudgment interest \u201cin the exercise of its discretion.\u201d After pronouncing its ruling at the hearing, Bonnie\u2019s counsel asked the court to comment on the impact of section 505(d) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/505(d) (West Supp. 1999) (effective until June 1, 2000)) on the court\u2019s ruling. The court responded that (1) section 505(d) was enacted after 1994 and thus was not in effect while the child support order was in effect (April 1977 through November 1994), and (2) during the time that the child support order was in effect, the awarding of interest on child support judgments was a matter within the trial court\u2019s discretion.\nIn February 2000, Bonnie filed a motion to reconsider, in which she argued that pursuant to (1) section 505(d) of the Dissolution Act (then section 505(c) (Pub. Act 85 \u2014 2, \u00a7 2, eff. May 1, 1987 (1987 Ill. Laws 1, 6-7))) and (2) the amended version of section 12 \u2014 109 of the Code (see Pub. Act 85 \u2014 2, \u00a7 6, eff. May 1, 1987 (1987 Ill. Laws at 14); as amended see 735 ILCS 5/12 \u2014 109 (West 1998)), both of which took effect on May 1, 1987, she was entitled to interest on the unpaid child support that accrued after June 1, 1987. Following a March 2000 hearing, the trial court denied Bonnie\u2019s motion. In so ruling, the court explained that it was compelled to follow In re Marriage of Kaufman, 299 Ill. App. 3d 508, 701 N.E.2d 186 (1998). This appeal followed.\nII. ANALYSIS\nA. Lloyd\u2019s Failure To File a Brief\n\u20221 Initially, we note that Lloyd did not file a brief in support of the trial court\u2019s order. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976), the supreme court held that when the record is simple and the claimed errors are such that a reviewing court can easily decide them without the aid of the appellee\u2019s brief, the reviewing court should decide the merits of the appeal. Because we conclude that this is such a case, we address the merits of Bonnie\u2019s appeal despite Lloyd\u2019s failure to file a brief.\nB. Standard of Review\n\u20222 The facts are not disputed and the issue raised on this appeal is one of law \u2014 that is, whether the imposition of interest on child support judgments is mandatory under section 12 \u2014 109 of the Code (735 ILCS 5/12 \u2014 109 (West 1998)). We review questions of law de nova. Panhandle Eastern Pipe Line Co. v. Environmental Protection Agency, 314 Ill. App. 3d 296, 300, 734 N.E.2d 18, 21 (2000).\nC. Prejudgment Interest\nBonnie argues that the trial court erred by failing to apply section 12 \u2014 109 of the Code (735 ILCS 5/12 \u2014 109 (West 1998)) and award her interest accordingly. For the following reasons, we agree.\nIn Finley v. Finley, 81 Ill. 2d 317, 332, 410 N.E.2d 12, 19 (1980), the supreme court held that whether to impose interest on child support judgments lies within the trial court\u2019s discretion. In so holding, the court explained that divorce proceedings are similar to chancery proceedings and therefore should be governed, to a great extent, by the rules governing such proceedings. In chancery proceedings, interest on judgments is allowed when equitable considerations warrant it.\n\u20223 Seven years after Finley, the General Assembly amended section 505 of the Dissolution Act and section 12 \u2014 109 of the Code by enacting Public Act 85 \u2014 2 (Pub. Act. 85 \u2014 2, \u00a7\u00a7 2, 6, eff. May 1, 1987 (1987 Ill. Laws at 5-6, 14)). The amendment to section 505 of the Dissolution Act added what is now subsection (d), which states, in pertinent part, as follows: \u201cEach *** judgment [of child support] shall have the full force, effect[,] and attributes of any other judgment of this State, including the ability to be enforced.\u201d 750 ILCS 5/505(d) (West Supp. 1999). Amended section 12 \u2014 109 of the Code provides, in pertinent part, that \u201c[e]very judgment arising by operation of law from a child support order shall bear interest as provided in [sjection 2 \u2014 1303 commencing 30 days from the effective date of each such judgment.\u201d 735 ILCS 5/12 \u2014 109 (West 1998).\nIn Kaufman, 299 Ill. App. 3d at 509, 701 N.E.2d at 187, the appellant argued that interest on late payments under an order of maintenance was mandatory. Specifically, she contended that (1) the General Assembly enacted section 505(d) of the Dissolution Act in response to Finley, and that pursuant to that section, interest on a child support award is mandatory, and (2) Finley should not be applied to other dissolution judgments, such as orders to pay maintenance. Kaufman, 299 Ill. App. 3d at 509, 701 N.E.2d at 187. The appellate court disagreed and concluded that (1) section 505(d) of the Dissolution Act did not (a) address the question of interest or (b) apply to spousal maintenance awards; (2) not all civil judgments are subject to mandatory interest, therefore granting dissolution judgments the \u201cfull force and effect of law\u201d does not mean that interest will automatically attach; and (3) the legislature did not intend to make interest mandatory on dissolution judgments. Kaufman, 299 Ill. App. 3d at 512, 701 N.E.2d at 189. The court further held that, pursuant to Finley, the \u201callowance of interest on all dissolution judgments is within the discretion of the trial court.\u201d Kaufman, 299 Ill. App. 3d at 511, 701 N.E.2d at 188.\n\u20224 In this case, the trial court\u2019s reliance on Kaufman was misplaced. First, the Kaufman court addressed a question regarding maintenance; therefore, its analysis of section 505(d) of the Dissolution Act \u2014 a section expressly addressing child support \u2014 constitutes dicta. Moreover, because child support was not at issue in Kaufman, the court did not consider or apply section 12 \u2014 109 of the Code, as amended in 1987, which unequivocally states that judgments of child support shall bear interest as provided in section 2 \u2014 1303 of the Code (735 ILCS 5/2 \u2014 1303 (West 1998)). 735 ILCS 5/12 \u2014 109 (West 1998). Accordingly, we conclude that the trial court erred by determining that interest was discretionary, and Bonnie is entitled to interest on unpaid support accrued between June 1, 1987, and November 1994.\nIn so concluding, we note that In re Marriage of Steinberg, 302 Ill. App. 3d 845, 855-56, 706 N.E.2d 895, 902-03 (1998), does not require a different result. In that case, the respondent argued that the trial court erred by holding that interest on child support was mandatory under section 505(d) of the Dissolution Act. Steinberg, 302 Ill. App. 3d at 855, 706 N.E.2d at 902. The reviewing court agreed, citing both Finley and Kaufman. However, the parties did not raise and the Stein-berg court did not address section 12 \u2014 109 of the Code in reaching its conclusion. Steinberg, 302 Ill. App. 3d at 855-56, 706 N.E.2d at 902-03.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nMcCullough, j., concurs.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent and would affirm the decision of the trial court. The majority today abandons a long-standing and well-considered ruling of our supreme court. See Finley, 81 Ill. 2d at 332, 410 N.E.2d at 19 (in dissolution of marriage cases, orders for future periodic payments do not draw interest unless the trial court so exercises its discretion). The majority concludes its action is required by a 1987 amendment to section 12 \u2014 109, that \u201c[e] very judgment arising by operation of law from a child support order shall bear interest as provided in [sjection 2 \u2014 1303.\u201d 735 ILCS 5/12 \u2014 109 (West 1998). Section 2 \u2014 1303, however, was the section considered in Finley.\nThere is a difference between money judgments entered in civil cases and orders for future periodic payments entered in dissolution of marriage cases. The dissolution judgment might not even contain a definite amount but may simply order the noncustodian to pay a percentage of his income. In re Marriage of Singleteary, 293 Ill. App. 3d 25, 33, 687 N.E.2d 1080, 1086 (1997). As in the present case, the custodian may return to court many years later, complaining that the noncustodian at some point has failed to pay some child support. The trial court will hear the evidence, determine the amount unpaid, and enter a judgment for that amount. Certainly from that point in time the custodian will be entitled to interest on the judgment. But was the custodian entitled to interest from the moment the custodian failed to comply with the order setting support? Again, Finley says that such an award of interest in a dissolution of marriage case is not mandatory but lies within the discretion of the trial court.\nFor many years there has been a duplication between section 12\u2014 109, which had its origin in the statute dealing with judgments (Ill. Rev. Stat. 1977, ch. 77, par. 7), and section 2 \u2014 1303, which had its origin in the statute dealing with interest (Ill. Rev. Stat. 1977, ch. 74, par. 3). In 1980, the year Finley was decided, the predecessor of section 12 \u2014 109 provided:\n\u201cEvery judgment shall bear interest thereon, from the date of the recovery of the judgment until the same is paid, at the rate of 8% per annum.\u201d Ill. Rev. Stat. 1979, ch. 77, par. 7.\nAt that time, the predecessor of section 2 \u2014 1303 provided:\n\u201cJudgments recovered before any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***.\u201d Ill. Rev. Stat. 1979, ch. 74, par. 3.\nTwo separate statutes accordingly provided for interest on judgments. Even though Finley did not cite the parallel language contained in the predecessor of section 12 \u2014 109, the holding of Finley must be read as applying to that language.\nIn 1984, section 12 \u2014 109 of the Code was amended to eliminate the duplication and to simply refer to section 2 \u2014 1303 without setting out any substantive provisions. Pub. Act 83 \u2014 1398, \u00a7 5, eff. September 12, 1984 (1984 Ill. Laws 2747, 2748). After the 1984 amendment section 12 \u2014 109 read, \u201c[e]very judgment shall bear interest thereon as provided in [sjection 2 \u2014 1303.\u201d Ill. Rev. Stat. 1985, ch. 110, par. 12\u2014 109. The language of section 12 \u2014 209 on which the majority relies was accordingly in existence prior to 1987, and it was clear at that time that the language was intended to avoid duplication, not to change the Finley rule on discretionary interest.\nIn 1987, in connection with the amendments to section 505 of the Dissolution Act, section 12 \u2014 109 was amended to address judgments \u201carising by operation of law from child support orders.\u201d Pub. Act 85 \u2014 2, \u00a7 6, eff. May 1, 1987 (1987 Ill. Laws at 14). The amended language provides, \u201c[e] very judgment arising by operation of law from a child support order shall bear interest as provided in [sjection 2 \u2014 1303 commencing 30 days from the effective date of each such judgment.\u201d 735 ILCS 5/12 \u2014 109 (West 1998). There are two basic provisions here: (1) child support orders shall bear interest as provided in section 2 \u2014 1303, and (2) there is a grace period of 30 days before interest begins to run. Section 12 \u2014 109 does not say anything about the discretion of the trial court, only that such orders shall bear interest as provided in section 2 \u2014 1303. Under section 2 \u2014 1303, basically unchanged since it was addressed in Finley, interest is discretionary.\nThe majority attempts to distinguish Steinberg with the argument that \u201cthe Steinberg court did not address section 12 \u2014 109 of the Code in reaching its conclusion.\u201d 324 Ill. App. 3d at 210. The Steinberg court did discuss the 1987 amendment to section 505(d), however, including an extensive discussion of the legislative history of that amendment. Amended section 12 \u2014 109 was a part of that same amendment, and it seems clear that the Steinberg court was aware of the 1987 amendment to section 12 \u2014 109. In any event we must consider whether the language of section 12 \u2014 109, i.e., that child support judgments \u201cshall bear interest as provided in [sjection 2 \u2014 1303,\u201d adds anything to the language of sections 2 \u2014 1303 of the Code and 505(d) of the Dissolution Act, which were considered by the Steinberg court. Steinberg rejected the argument that the broad language in section 2 \u2014 1303 of the Code (dealing with interest on judgments) and the broad language in section 505(d) of the Dissolution Act (dealing with child support judgments) changed the rule that interest on child support judgments was discretionary. The language in section 12 \u2014 109, duplicative of the language in section 2 \u2014 1303, is even less persuasive than the language of the other sections, and the failure to cite section 12 \u2014 109 in Steinberg does not provide support for the majority\u2019s decision here.\nThe majority complains that Kaufman, although a maintenance case, addressed section 505(d) of the Dissolution Act, which expressly addresses child support. 324 Ill. App. 3d at 209-10. The majority then suggests that because Kaufman was a maintenance case, it did not consider section 12 \u2014 109, which is a child support provision. 324 Ill. App. 3d at 209. The fact of the matter is that both child support and maintenance are \u201cperiodic payments ordered by the court\u201d and have been discussed interchangeably in the cases. Finley was a child support case, but it cited alimony cases. Finley, 81 Ill. 2d at 331-32, 410 N.E.2d at 19. The Finley rule applies not just to child support or to maintenance but to every allowance of interest in a divorce proceeding. Finley, 81 Ill. 2d at 331-32, 410 N.E.2d at 19. As the majority points out, both the language it relies upon from section 12 \u2014 109 of the Code, and a portion of the language of section 505(d) of the Dissolution Act discussed in Kaufman (then section 505(c)), were contained in the same public act. Pub. Act 85 \u2014 2, \u00a7\u00a7 6, 2, eff. May 1, 1987 (1987 Ill. Laws at 14, 6-7). That public act was not added with the intent of changing the way interest is awarded in Illinois dissolution judgments. The public act was added to comply with federal law and prevent the loss of large sums of federal funds and to prevent retroactive reduction of child support, especially by courts in other states. Kaufman, 299 Ill. App. 3d at 512-13, 701 N.E.2d at 189. The legislative intent in amending section 12 \u2014 109 of the Code was to add a 30-day grace period, not to change the rule that the award of interest on past-due child support is discretionary. If the legislature had intended to change such a long-standing and sensible rule, it would have done so explicitly.\nThe wisdom of a rule that places the award of interest within the discretion of the trial court is illustrated by this case. Bonnie chose to bring this action for unpaid child support in 1999, when the child was 23 years old. The child will not receive any advantage from this child support. Bonnie sought $23,200 in unpaid child support; the trial court awarded $15,100, an indication there was some uncertainty as to amount. Orders for future periodic payments are not as definite as money judgments. Another example of this uncertainty is found in the cases where the noncustodian takes over the custody of the child. Even if the child support order is not revoked, the former custodian will be estopped to enforce it. Johnston v. Johnston, 196 Ill. App. 3d 101, 104-05, 553 N.E.2d 93, 96 (1990); In re Marriage ofDuerr, 250 Ill. App. 3d 232, 235-37, 621 N.E.2d 120, 123-24 (1993). Computing interest on a money judgment may not require much more than a multiplication of the number of days unpaid by the interest rate; computing interest on a child support order is a much more complicated process. Interest on child support orders should be discretionary with the trial court.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Neill Schurter, of Rantoul, for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "BONNIE JEAN BURWELL, Plaintiff-Appellant, v. LLOYD C. BURWELL, Defendant-Appellee.\nFourth District\nNo. 4 \u2014 00\u20140407\nOpinion filed August 3, 2001.\nCOOK, J, dissenting.\nNeill Schurter, of Rantoul, for appellant.\nNo brief filed for appellee." }, "file_name": "0206-01", "first_page_order": 224, "last_page_order": 231 }