In re Marriage of Kaufman

Second Division
September 29, 1998

No. 1-97-4553

In re MARRIAGE OF GAIL KAUFMAN, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
and )
)
HAROLD KAUFMAN, ) Honorable
) Patricia Banks,
Respondent-Appellee. ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:
Pursuant to a judgment of dissolution, Harold Kaufman was
ordered to pay Gail Kaufman spousal maintenance. Between January
of 1991 and April of 1994, Harold encountered financial
difficulties due to a substantial reduction in his income and was
unable to make full payments. However, he made partial payments
at Gail's attorney's request. In May of 1994 after withdrawing
funds from his pension and incurring penalties, Harold made a
lump-sum payment for all past-due amounts.
Thereafter, Gail petitioned for interest accruing from the
late payments. Following a hearing, the trial court denied the
petition, holding that the equities did not support an award of
interest.
The sole issue before this court is whether section 2-1303
of the Code of Civil Procedure (735 ILCS 5/2-1303 (West 1996)
(statutory section authorizing interest on judgments)) is
mandatory in dissolution proceedings or whether an award of
interest is within the discretion of the trial court. On appeal,
Gail contends that interest is mandatory pursuant to section 2-
1303 and that the supreme court's decision in Finley v. Finley,
81 Ill. 2d 317 (1980), does not control because it applies only
to child support payments. Further, she contends that even if
Finley does apply, it no longer controls because the legislature
enacted section 505(d) of the Illinois Marriage and Dissolution
of Marriage Act (750 ILCS 5/505(d)(West 1996)) in response
thereto, which now makes interest mandatory. We disagree with
both positions and affirm.
ANALYSIS
STANDARD OF REVIEW
The facts are undisputed and, therefore, the issue before us
is a question of law. We review questions of law de novo.
Branson v. Department of Revenue, 168 Ill. 2d 247, 265 (1995).
FINLEY v. FINLEY
Section 2-1303 provides: "[j]udgments recovered in any court
shall draw interest at the rate of 9% per annum from the date of
the judgment until satisfied." 735 ILCS 5/2-1303 (West 1996).
This language is clear and unambiguous.
Nevertheless, in Finley v. Finley, 81 Ill. 2d 317, 331
(1980), our supreme court has held that section 2-1303 does not
apply to dissolution actions. The court noted that there was a
split of authority on the issue. Some appellate court cases had
held that the award of interest was within the sound discretion
of the dissolution judge. See Sutton v. Lieb, 199 F.2d 163 (7th
Cir. 1952) (applying Illinois law); Matzen v. Matzen, 69 Ill.
App. 3d 69 (1979); In re Estate of Neirinck, 62 Ill. App. 3d 189
(1978); Atwater v. Atwater, 18 Ill. App. 3d 202 (1974); Anderson
v. Anderson, 48 Ill. App. 2d 140 (1964); Kaifer v. Kaifer, 286
Ill. App. 433, 439-40 (1936). Conversely, other appellate court
decisions had held that interest was recoverable on dissolution
judgments because they too were money judgments. See Ellingwood
v. Ellingwood, 25 Ill. App. 3d 587 (1975); Neeland v. Neeland, 17
Ill. App. 3d 803 (1974); Gregory v. Gregory, 52 Ill. App. 2d 262
(1964); Shuff v. Fulte, 344 Ill. App. 157 (1951); Wadler v.
Wadler, 325 Ill. App. 83 (1945).
After recognizing the split and analyzing other supreme
court cases, the Illinois Supreme Court stated:
"This court has held that a divorce
proceeding partakes so much of the nature of
a chancery proceeding that it must be
governed to a great extent by the rules that
are applicable thereto. (Bremer v. Bremer
(1954), 4 Ill. 2d 190, 192.) In a chancery
proceeding, the allowance of interest lies
within the sound discretion of the trial
judge and is allowed where warranted by
equitable considerations and is disallowed if
such an award would not comport with justice
and equity. (Galler v. Galler (1975), 61 Ill. 2d 464, 474; Groome v. Freyn Engineering Co.
(1940), 374 Ill. 113, 131; Duncan v. Dazey
(1925), 318 Ill. 500, 527; McKey v. McCoid
(1921), 298 Ill. 566, 572.) As stated in
Groome, 'In a proper case, equitable
considerations permit a court of equity to
allow or disallow interest as the equities of
the case may demand.' (374 Ill. 113, 131.)
We therefore conclude that the allowance of
interest on past-due periodic support
payments is not mandatory as contended by the
plaintiff, but lies within the sound
discretion of the trial judge, whose
determination will not be set aside absent an
abuse of that discretion." Finley, 81 Ill. 2d at 332.
Accordingly, Finley decided the split of authority and held that,
in dissolution proceedings, section 2-1303 is not mandatory but
the award of interest is instead within the discretion of the
trial court.
Three appellate court cases subsequent to Finley have
followed its reasoning. See In re Marriage of Ahlness, 229 Ill.
App. 3d 761, 763 (4th Dist. 1992) (citing Finley and stating
Finley should be given broad application in dissolution
proceedings); Robinson v. Robinson, 140 Ill. App. 3d 610, 612
(1st Dist. 2d Div. 1986) ("in the context of a divorce
proceeding, the provisions of section 2-1303 are not mandatory,
but rather the allowance of interest is within the sound
discretion of the trial court"); In re Marriage of Bjorklund, 88
Ill. App. 3d 576, 580-81 (1st Dist. 1st Div. 1980) (following and
citing Finley; interest on delinquent child support payments is
discretionary based on the equities).
However, the next time the first division of the first
district encountered the issue in In re Marriage of Morris, 190
Ill. App. 3d 293, 297 (1989), it held that Finley was applicable
only to "past-due periodic child support" payments and not to a
property settlement payment. The majority in Morris did not
mention the prior decision in Bjorklund. When the first division
next addressed the issue in In re Marriage of Sunko, 237 Ill.
App. 3d 996, 1001 (1992), a case involving late payment of a
share of marital property, it followed Morris. The second
district has also found that interest is mandatory under section
2-1303 upon late payment of property settlements in In re
Marriage of Sloane, 255 Ill. App. 3d 653 (1994).
Although Sloane and Morris attempt to narrow the scope of
Finley, we find their basis unconvincing. It is not the specific
type of award the trial court makes that is crucial to the
court's rationale in Finley but, instead, it is the character and
nature of the entire dissolution action. The fact that
dissolution proceedings are equitable in nature is the critical
factor. After analyzing these cases, we conclude that they
construe Finley too narrowly. They limit Finley to the type of
award that was at issue. Finley, however, does not contain such
restrictive language. Rather, its scope is broad. It states
that because a divorce proceeding partakes so much of the nature
of a chancery proceeding, it must be governed by the same rules.
In making this statement, the Finley court cited to and quoted
from Bremer v. Bremer, 4 Ill. 2d 190 (1954), which cited to an
earlier supreme court case, Bowman v. Bowman, 64 Ill. 75, 81
(1872). Clearly, that rules of equity apply to divorce
proceedings is a clear and long-standing rule of law.
We agree with and find persuasive Justice Quinlan's dissent
in Morris where he stated:
"[T]he supreme court specifically found that
section 2-1303 did not apply at all to
divorce proceedings since divorce proceedings
were in the nature of a chancery proceeding
and not similar to actions at law." Morris,
190 Ill. App. 3d at 299 (Quinlan, J.,
dissenting).
"*** [I]t is [not] the prerogative of
the appellate court to limit a supreme
court's decision to its particular facts
merely because it does not find that court's
ruling particularly compelling. Rather, we,
as an intermediate court of review, are
required to apply such precedent to all those
situations where the ruling is reasonably
applicable." Morris, 190 Ill. App. 3d at 299
(Quinlan, J., dissenting).
Based upon the broad language of Finley, Bremer, and Bowman,
we conclude that the clear weight of authority favors a finding
that allowance of interest on all dissolution judgments is within
the discretion of the trial court.
SECTION 505(D)
Gail also relies on section 505(d) as support for her
contention that interest on dissolution awards is mandatory. She
does so, however, without discussion or analysis. Section 505(d)
states:
"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." 750 ILCS 5/505(d) (West Supp.
1997).
Gail's reliance on this provision is misplaced. First, nowhere
in this paragraph does the term "interest" appear. Nor is there
any reference from which one could infer that interest is at
issue. In interpreting a statute, "we must focus on the language
of the statute itself. [Citation.] Legislative intent is the
controlling inquiry in construing a statute, and the statutory
language is the best indication of that intent." Boaden v.
Department of Law Enforcement, 267 Ill. App. 3d 645, 651 (1994),
aff'd, 171 Ill. 2d 230 (1996). We cannot read words into a
statute that are not there. Illinois Wood Energy Partners, L.P.
v. County of Cook, 281 Ill. App. 3d 841, 850 (1995).
Although section 505(d) (750 ILCS 5/505(d) (West Supp.
1997)) states that each dissolution judgment "shall have the full
force, effect and attributes of any other judgment of this
State," not all judgments in this state are subject to mandatory
interest. In particular, our supreme court has stated that an
"attribute" of dissolution judgments is that they are subject to
discretionary interest.
Further, it is crystal clear that the legislature, in adding
paragraph (d), did not contemplate or have in mind the issue of
interest on dissolution judgments. The only reason the
legislature added this paragraph was to comply with federal law
so that the State of Illinois would not lose millions of dollars.
See 85th Ill. Gen. Assem., Senate Proceedings, April 2, 1987, at
12; 85th Ill. Gen. Assem., Senate Proceedings, April 9, 1987, at
30; 85th Ill. Gen. Assem., Senate Proceedings, April 9, 1987, at
32-33; 85th Ill. Gen. Assem., Senate Proceedings, May 1, 1987, at
6; 85th Ill. Gen. Assem., House Proceedings, April 29, 1987, at
47-48 (stating that the bill was designed to put Illinois in
compliance with federal law and to prevent the lose of $21
million; also stating that the purpose of the bill was to prevent
retroactive reduction of child support payments and to prevent
fathers in arrearage from going to another state and having a
court there wipe out the arrearage). See also Ill. Ann. Stat.,
ch. 38, par. 505, Supplement to Historical and Practice Notes, at
179 (Smith-Hurd Supp. 1992) ("Subsection [d] was enacted in
response to the federal mandate *** to require states to have
provisions of this kind in its law as a precondition to receiving
federal assistance. The federal law in requiring these
procedures sought to prohibit retroactive modification of child
support arrearages and thereby increase the effectiveness of the
states' child support enforcement programs"); In re Marriage of
Hawking, 240 Ill. App. 3d 419, 422 (1992) (federal mandate
prompted the legislature to add subsection (d) of section 505;
purpose was to improve child support enforcement).
Accordingly, the language of section 505(d) does not support
Gail's position that Finley is no longer controlling law.
CONCLUSION
Based on the foregoing, we hold that the trial court
properly concluded that the award of interest upon a dissolution
award, in particular, the spousal maintenance award in the
instant case, was within its discretion and not mandatory under
section 2-1303. Accordingly, we affirm the trial court's
decision.
Affirmed.
GORDON, P.J., and COUSINS, J., concur.