In re Marriage of Potts

Nos. 2--97--0912, 2--97--1149, cons.
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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re MARRIAGE OF ) Appeal from the Circuit Court
JULIE L. POTTS, ) of Boone County.
)
Petitioner-Appellee, ) No. 97--D--7
)
and )
)
JEFFREY A. POTTS, )
)
Respondent-Appellee )
)
(Jennifer M. Potts, n/k/a ) Honorable
Jennifer Horton, Intervenor- ) Gerald F. Grubb,
Appellant). ) Judge Presiding.
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In re MARRIAGE OF ) Appeal from the Circuit Court
JEFFREY A. POTTS, ) of Winnebago County.
)
Petitioner-Appellee, ) No. 90--D--547
)
and )
)
JENNIFER M. POTTS, n/k/a )
Jennifer M. Horton, ) Honorable
) Steven G. Vecchio,
Respondent-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

Respondent-intervenor, Jennifer Horton, appeals the order of
the circuit court of Boone County (appeal No. 97--0912) vacating
its prior order, which granted her petition for leave to intervene,
and denying her motion to vacate the award of child support.
Jennifer also appeals the order of the circuit court of Winnebago
County (appeal No. 97--1149) awarding child support to her child.
Jennifer and Jeffrey Potts dissolved their marriage in 1991.
They had one child during their marriage (hereinafter first child).
Following the dissolution of that marriage, Jeffrey married Julie
Potts in 1992. Jeffrey had two children during his marriage to
Julie.
On January 16, 1997, custody of the first child was
transferred to Jennifer in the court of Winnebago County. However,
the court reserved ruling on child support because Jeffrey
represented that he was unemployed at the time.
In the meantime, on January 17, 1997, Julie petitioned in the
Boone County court for the dissolution of her marriage to Jeffrey.
On March 12, 1997, the Boone County court, pursuant to an agreed
order, granted the dissolution and awarded Julie $50 in weekly
maintenance and $150 in weekly support for their two children.
There is no indication in the record that the Boone County court
knew that there was another support obligation pending in the
Winnebago County court.
On March 13, 1997, at the hearing in the Winnebago County
court on Jennifer s motion for child support, Jeffrey presented the
order of support issued by the Boone County court the day before.
Jennifer argued that the court should not consider the amount
ordered by the Boone County court in determining the amount of
child support for the first child. Jennifer argued that, if it
were deducted first, it would virtually deplete Jeffrey s income to
the first child s detriment. The court felt that its hands were
tied because section 505(a)(3)(g) under the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/505(a)(3)(g) (West
1996)) provided that prior orders of child support and maintenance
must first be deducted from net income before a determination for
support could be made. The court then deducted the $200 obligation
of support and maintenance from Jeffrey s net income of $366 per
week and divided the remainder by 20% to arrive at the amount of
$33 per week for the first child s support. The court then advised
Jennifer to try to vacate the judgment of the Boone County court.
On April 2, 1997, Jennifer filed a petition for leave to
intervene and a motion to vacate the judgment in the Boone County
court. Jennifer argued that she sought to obtain child support in
Winnebago County following the transfer of custody of the first
child to her; that the issue of support was reserved because
Jeffrey was unemployed at the time; and that the judgment entered
by the Boone County court in the interim deprived the first child
of the appropriate amount of support that she should have received
as the firstborn child. Jennifer asked the court to vacate the
judgment regarding child support and maintenance and to recalculate
child support considering the needs of the first child as the
firstborn child. The court granted the petition for leave to
intervene. However, after considering the argument of the opposing
counsel, the court vacated its order granting the petition for
leave to intervene.
Thereafter, Jennifer filed a motion in the Winnebago County
court to reconsider its order of support. She argued that
Jeffrey s income substantially increased in the interim and that
the court should disregard the Boone County court s child support
and maintenance order. The court continued to adhere to its prior
decision that the Boone County court order was a prior obligation.
However, it increased child support to $50 per week based on 20% of
the increase in Jeffrey s net income after deducting the "prior"
$200 obligation to his second family.
Jennifer appeals, contending that the Boone County court erred
in vacating its prior order, which granted her petition for leave
to intervene, and that the Winnebago County court improperly
calculated and set the first child s child support. We granted
Jennifer s motion to consolidate the appeals.
We note that neither Julie nor Jeffrey has filed briefs in
this court. However, we will consider the merits of the appeal
under the standard set forth in First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128 (1976).
We turn first to Jennifer s contention that the Boone County
court erred in vacating its prior order, which granted her petition
for leave to intervene. Section 2--408 of the Code of Civil
Procedure (735 ILCS 5/2--408 (West 1996)) governs intervention in
civil proceedings. It provides, in relevant part:
"(a) Upon timely application anyone shall be permitted as
of right to intervene in an action: (1) when a statute confers
an unconditional right to intervene; or (2) when the
representation of the applicant s interest by existing parties
is or may be inadequate and the applicant will or may be bound
by an order or judgment in the action; or (3) when the
applicant is so situated as to be adversely affected by a
distribution or other disposition of property in the custody
or subject to the control or disposition of the court or a
court officer.
(b) Upon timely application anyone may in the discretion
of the court be permitted to intervene in an action: (1) when
a statute confers a conditional right to intervene; or (2)
when an applicant s claim or defense and the main action have
a question of law or fact in common." 735 ILCS 5/2--
408(a),(b)(West 1996).
We do not find that the conditions required by subsection (b)
are present here. Therefore, this case turns upon whether Jennifer
could intervene as a matter of right. Our research has found one
case concerning intervention as a matter of right in a proceeding
involving child support. In People ex rel. Collins v. Burton, 282
Ill. App. 3d 649 (1996), the underlying case involved a paternity
proceeding in which the respondent was declared the father of a
child born out of wedlock to the petitioner and was ordered to pay
child support. Morris C. Davis, Jr., who was the father of another
child born out of wedlock to the petitioner and who also had to pay
child support to the petitioner, filed a petition for leave to
intervene. Davis argued that he had an interest in seeing that the
total sum available for the support of his child was as ample as
possible. He also argued that the State could not be expected to
protect his child s interest in regard to the support for the other
child and that the court s ruling on the support request would be
binding on him and his child. The court held that Davis did not
have a sufficient interest to have a right to intervene. Burton,
282 Ill. App. 3d at 651.
The court found that it was no longer uncommon to have one
custodial parent receive support from more than one noncustodial
parent. Although the court agreed that Davis s child was
indirectly affected by the amount of support the other father was
paying toward the support of the other child, it held that
permitting other noncustodial parents to intervene each time an
issue arose concerning support payments that are to be paid by one
of them would be an invitation to confusion. Burton, 282 Ill. App.
3d at 653.
We agree with the reasoning in Burton. As in Burton, it is
not uncommon to have a former spouse from a subsequent marriage
seek child support. If we allowed a former spouse from a prior
marriage to intervene in litigation involving support payments to
the children from a subsequent marriage every time the firstborn
child might be affected, then a former spouse from the subsequent
marriage should also have the right to intervene any time an issue
arose where the children from the subsequent marriage might be
affected. We cannot encourage such disruption.
Moreover, even if Jennifer filed a petition on behalf of the
first child in regard to the support payments made by Jeffrey to
his second family, she would have no standing to modify the
obligation. See In re Marriage of Goldstein, 229 Ill. App. 3d 399
(1992)(daughter had no standing as third-party beneficiary to
modify amount of college expenses father was ordered to pay in a
dissolution proceeding). Jennifer s interest in the outcome of the
Boone County litigation is too remote to grant her a right to
intervene. Accordingly, the Boone County court correctly vacated
its prior order, which granted Jennifer s petition for leave to
intervene.
Jennifer next contends that the Winnebago County court
improperly calculated and set the first child s child support.
Jennifer argues that the court improperly deducted the Boone County
court order of child support and maintenance from Jeffrey s net
income before it calculated the amount of child support for the
first child. We note that the trial court has wide discretion in
awarding child support and its decision will not be reversed by a
court of review absent an abuse of discretion. In re Marriage of
Alexander, 231 Ill. App. 3d 950, 953 (1992).
Section 505 of the Act provides that, in determining the
available income for child support awards, "[p]rior obligations of
support or maintenance actually paid pursuant to a court order"
shall be deducted from net income. (Emphasis added.) 750 ILCS
5/505(a)(3)(g) (West 1996). "Prior" refers to the obligations to
a family that is "first in time" in relation to another family. In
re Marriage of Zukausky, 244 Ill. App. 3d 614, 624 (1993). A
divorced spouse s obligations to the first family must be met
before the obligations to the second family can or will be
considered. In re Marriage of Vucic, 216 Ill. App. 3d 692, 704
(1991); Roqueplot v. Roqueplot, 88 ll. App. 3d 59, 63 (1980).
In this case, the Winnebago County court concluded that the
Boone County court order was a "prior obligation of support" and
deducted that amount from Jeffrey s net income before it determined
the amount of available income to award child support for the first
child. Because the prior obligation of support should be paid to
the family that is first in time, the Winnebago County court
incorrectly concluded that the Boone County court order of support
for the second family was a prior order. We find the court abused
its discretion by deducting the order of support for the second
family from Jeffrey s net income before determining the award of
support for the first child. We therefore direct the Winnebago
County court to redetermine the amount of the first child s support
without regard to the Boone County court order of support. The
court is further directed to determine the minimum amount of
support pursuant to the guidelines set forth in section 505(a)(1)
(750 ILCS 5/505(a)(1) (West 1996)) (20% of Jeffrey s net income),
unless the court makes a finding that the application of the
guidelines would be inappropriate after considering the best
interests of the child and the factors of section 505(a)(2) (750
ILCS 5/505(a)(2) (West 1996)).
In the interest of justice, we are compelled to make a final
note concerning this case. Based on the records before us, it
appears that Jeffrey concealed his first child s existence and the
pending award of her support from the Boone County court. It also
appears that Jeffrey purposefully depleted the income available for
his first child by agreeing to set child support and maintenance
for his second family at more than 50% of his net income. A trial
judge has a difficult task in setting fair and reasonable child
support. A litigant who fails to fully inform the court that on
the next day another court is going to set child support for his
first family acts reprehensibly and should not benefit from such
conduct.
The judgment of the circuit court of Boone County is affirmed.
The judgment of the circuit court of Winnebago County is reversed,
and the cause is remanded with directions.
No. 97--0912 -- affirmed.
No. 97--1149 -- reversed and remanded with directions.
GEIGER, P.J., and DOYLE, J., concur.