Wagner v. Illinois

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SCOTT WAGNER, Petitioner/Appellant, v. ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES, Respondent/Appellee, ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02/04/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0190 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2008-091483 The Honorable Emmet Ronan, Judge AFFIRMED IN PART; REVERSED IN PART; AND REMANDED Richard L. Hoffman Attorney for Appellant Aiken Schenk Hawkins & Ricciardi, P.C. By James E. Padish and Kellie N. Wells Special Assistant Attorneys General for Appellee State of Illinois Department of Healthcare and Family Services K E S S L E R, Judge Mesa Phoenix ¶1 Scott judgment Wagner awarding obligation. superior interest from on the his superior unpaid child court s support For the reasons stated below, we hold that the court interpretation superior appeals based of court its the for judgment governing further in part statute proceedings on and an erroneous remand consistent to with the this decision. FACTUAL AND PROCEDURAL HISTORY ¶2 Pursuant to Arizona Revised Statutes ( A.R.S. ) section 25-1286(A) (2007), Wagner filed a contest to an income withholding order withholding of for his past income due to support pay past obligations imposed by an Illinois court. challenging due child the support The past due support obligations included amounts found in arrears by an Illinois court in a 1998 order ( arrearage payments due between then and 2001. Health and Family Services order ) Wagner ( Illinois ) principal briefed amount the and Illinois was $5,984.04, superior court on the the that the the parties purely whether interest on that amount was due. was support At the evidentiary stipulated and additional The Illinois Department of enforcement agency collecting the funds. hearing, and legal past due subsequently question of The superior court ruled that as a matter of Illinois law interest was mandatory on all past due child support judgments and ordered Wagner to pay 2 interest on his past due principal amount. In a signed minute entry, the superior court determined that the total amount of principal Wagner and interest filed a Wagner owed notice of timely Illinois appeal. was $13,011.47. This Court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. § 12-2101(B) (2003). ANALYSIS ¶3 Wagner court because argues the that superior we should court based reverse its the superior decision on the erroneous view that under Illinois law interest on past due child support payments is mandatory. He also argues that any statutory act which divests the superior court of discretion to determine whether interest is appropriate in a particular case violates the interest on mandatory Illinois child since Constitution. support 1987 in obligations Illinois and Illinois in we argues arrears should that has been affirm the superior court. ¶4 The superior court held that interest on arrearages was mandatory under Illinois statutes. de novo. 231, Willie G. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 233, omitted) novo). We review the judgment ¶ 8, (holding 119 that P.3d 1034, 1036 (App. we review statutory 2005) (citation interpretation de We hold that interest on payments becoming due between the entry of the arrearage order and 2000 was discretionary with 3 the superior court. Interest on January 1, 2000 is mandatory. payments coming due after Because the superior court s award of interest applied to all past due payments, we reverse and remand that portion of the judgment finding interest accrued as a matter of law on payments prior to January 1, 2000. We affirm that portion of the judgment adding interest to payments due on or after January 1, 2000. On remand, the superior court may exercise its discretion whether interest should accrue to payments due after the 1998 Illinois arrearage order, but before January 1, 2000. to brief Additionally, we note that the parties failed whether an Arizona court can modify the Illinois court s 1998 arrearage order by awarding discretionary interest on that order. Because the parties failed to brief this issue in this Court and in the superior court, we decline to decide it and permit the parties to brief that issue to the superior court. ¶5 Because an Illinois court issued the support order, Illinois law governs the accrual of interest on the arrearages under the order. Illinois had no A.R.S. § 25-1304(A)(2) (2007). statute support obligations. addressing interest on Historically, unpaid child Ill. Dep t of Healthcare & Family Servs. ex. rel. Wiszowaty v. Wiszowaty, 913 N.E.2d 680, 683 (Ill. App. 2009). However, Illinois did have two general statutes making interest on unpaid judgments mandatory. 4 Id. at 683 (citing Ill.Rev.Stat.1977, ch. 74, par. 3 ( Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the judgment until satisfied. ); Ill.Rev.Stat.1979, ch. 77, par. 7 ( Every execution issued upon a 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. )). ¶6 Illinois appellate courts held that, as of 1980, these statutes did not apply to past due orders for child support, leaving the accrual of interest on child support orders to the sound discretion of the trial court. Finley v. Finley, 410 N.E.2d 913 12, 19 (Ill. 1980); Wiszowaty, N.E.2d at 682-88 (reciting a detailed history of Illinois s treatment of interest on child Finley support reasoned judgments that the from Finley equitable until nature the of present). a divorce proceeding justified the judicial decision not to make interest mandatory pursuant to the two general interest statutes. 410 N.E.2d at 19; Wiszowaty, 913 N.E.2d at 683. ¶7 In statutes. period 1987, amended its general interest One relevant amendment created a thirty day grace before payments. Illinois interest could be assessed on child support Wiszowaty, 913 N.E.2d at 686 (quoting 735 Ill. Comp. Stat. Ann 5/12-109 (West 1998) ( Every judgment except those arising by operation of law from child support orders shall bear 5 interest thereon as provided in Section 2-1303. Every judgment arising by operation of law from a child support order shall bear interest thereon as provided in Section 2-1303 commencing 30 days from the effective date of each such judgment. ). other amendment provided that once a court-ordered The support payment becomes thirty days past due, it becomes a judgment by operation of law and has the effect of any other judgment. Id. at 687 (quoting 750 Ill. Comp. Stat. Ann. 5/505(d) (West 2006)). Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. A lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue support owed by the noncustodial parent. Id. ¶8 One Illinois court has held that this statutory change reflects a mandatory. (Ill.App. legislative See 2001). Burwell decision v. However, to make Burwell, the weight 753 of statutory N.E.2d interest 1259, Illinois 1261 appellate authority has found that the 1987 amendments did not result in statutory interest being mandatory on past due child support payments, reasoning that the changes were simply intended to 6 prevent child support arrearages modified by courts of other states. from being retroactively See e.g., In re Marriage of Kaufman, 701 N.E.2d 186, 189 (Ill.App. 1998); In re Marriage of Steinberg, 706 N.E.2d 895, 903 (Ill.App. 1998) (holding that trial court erred by basing its grant of interest on past due child support payment on belief that such interest was mandatory and finding that remand was appropriate); Wiszowaty, 913 N.E.2d at 687-88. ¶9 We follow the majority of Illinois appellate courts and hold that interest on unpaid support obligations remained discretionary after the 1987 amendments. subject to a well reasoned dissent. J. dissenting). It has been Illinois appellate court. Burwell was written 753 N.E.2d at 1262 (Cook, subsequently criticized by Wiszowaty, 913 N.E.2d at 688-89. an It is contrary to the majority of Illinois decisions addressing the impact of the 1987 amendments on interest on unpaid support obligations. See e.g., Kaufman, 701 N.E.2d at 189; Steinberg, 706 N.E.2d at 903; Wiszowaty, 913 N.E.2d at 687-88. ¶10 A Dissolution 2000 of amendment Marriage Act to makes Illinois s Marriage interest child on obligations more than thirty days past due mandatory. and support 750 Ill. Comp. Stat. Ann. 5/505(b) (West 2000) ( A support obligation, or any portion of a support obligation, which becomes due and remains unpaid for 30 days or more shall accrue interest at the 7 rate of 9% per annum. ). It is undisputed that interest on late child support was mandatory as of January 1, 2000. . . . Wiszowaty, 913 N.E.2d at 682. With respect to child support payments due on or after January 1, 2000, we affirm the superior court s holding that interest is mandatory and the order requiring that Wagner pay it. ¶11 Because the superior court in part erroneously interpreted the Illinois statutes, we reverse that part of the judgment. Because the award of interest on those payments which became past due prior to January 1, 2000 is discretionary, we remand to the superior court for an exercise of its discretion. 1 While exercising consider whether that the discretion, Illinois the superior judgment s court failure to should mention interest precludes it from exercising discretion with respect to the portion of the arrearage memorialized in that judgment due before January 1, 2000. ¶12 Wagner also argues that any statutory provision making interest mandatory on past due 1 child support obligations We note that the record on appeal does not contain transcripts of the evidentiary hearing or the oral argument on the legal issue. Ordinarily, we would assume that the content of those transcripts would support the superior court s judgment and affirm. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). However, because the briefs agree on the relevant facts and the appeal concerns a purely legal question, the absence of a transcript does not require us to assume that the superior court s decision was proper. See State v. Carrasco, 201 Ariz. 220, 222 & n.1, ¶ 2, 33 P.3d 791, 793 & n.1 (App. 2001). 8 violates the inherent powers argument on indicating Illinois to the language that constitution s the Illinois in courts. Smithberg Illinois reservation v. of Wagner Ill. legislature bases Mun. may certain Ret. not his Fund infringe certain traditional equitable powers held by Illinois courts. 735 N.E.2d 560, 565 (2000). In Smithberg the traditional equitable power at stake was the power to enforce a judgment with a traditional equitable remedy by consider[ing] done that which ought to have been done. Id. at 563, 569. Wagner argues that Finley s comparison of a divorce to a chancery proceeding makes the determination of interest on a past due child support obligation a traditional equitable power. However, [d]etermination of child support involves no inherent judicial powers. 1986). Boris v. Blaisdell, 492 N.E.2d 622, 628 (Ill.App. A legislative amendment that circumscribes judicial discretion in this area is no more an incursion into judicial authority than . . . mandatory sentencing guidelines. Additionally, two Illinois courts, which do not hesitate Id. to guard their inherent powers, Smithberg, 735 N.E.2d at 565, have applied statutory provisions depriving trial courts of discretion in the accrual of interest on unpaid child support payments violation. 1261. without considering any possible constitutional Wiszowaty, 913 N.E.2d at 682; Burwell, 753 N.E.2d at We reject Wagner s contention that a mandatory accrual of 9 interest on unpaid child support violates the Illinois constitution. CONCLUSION ¶13 the For the foregoing reasons we affirm that portion of judgment determining the amount of principal due and awarding interest on payments due after January 1, 2000. We reverse the remaining portion of the judgment of the superior court and remand for further proceedings consistent with this decision. /S/ DONN KESSLER, Judge CONCURRING: /S/ PATRICK IRVINE, Presiding Judge /S/ MICHAEL J. BROWN, Judge 10

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