In re Marriage of Mitchell

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In re Marriage of Mitchell, No. 81791 (2/20/98)

Docket No. 81791--Agenda 20--March 1997.
Opinion filed February 20, 1998.

JUSTICE MILLER delivered the opinion of the court:
Stephen G. Mitchell filed a petition for modification
of visitation rights with his children. Vicky O. Mitchell
then filed a petition for rule to show cause in the
circuit court of Lake County against Stephen, contending
that Stephen violated the child support provision of the
settlement agreement incorporated into an earlier
judgment dissolving their marriage. The circuit court
held that the percentage portion of the child support
provision was void and unenforceable under section
505(a)(5) of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/505(a)(5) (West 1994)). On
appeal, the appellate court affirmed, holding that the
plain language of section 505(a)(5) requires that child
support orders state the amount of the child support in
a specific dollar amount. No. 2--95--1594 (unpublished
order under Supreme Court Rule 23). We granted leave to
appeal (155 Ill. 2d R. 315) and now reverse the judgment
of the appellate court and remand the cause to the trial

Vicky and Stephen were married in 1979. During their
marriage, the couple gave birth to two children. On
January 4, 1989, the trial court entered a judgment for
dissolution of marriage. The couple also entered into an
agreement specifying child support levels. This agreement
was incorporated into the divorce judgment. As part of
the agreement, Stephen agreed to pay $450 per month in
child support. This amount represented 25% of Stephen's
net income. The agreement stated that, after April 30,
1989, Stephen would pay Vicky a sum equal to 25% of his
net income. A redetermination of this amount would be
made each year on May 1. In no event would the child
support exceed $1,000 per month or be less than $450 per
Stephen initiated this litigation by filing a
petition for modification of visitation rights on
December 16, 1994. On January 19, 1995, Vicky filed a
petition for rule to show cause, claiming that Stephen
had failed to comply with the 25% child support
provision. Vicky claimed that in calculating his net
income Stephen incorrectly included noncash losses of
depreciation and failed to include income from dividends,
interest, and stock and property sales.
Stephen filed a motion to strike Vicky's petition,
claiming that the petition lacked specificity as to the
exact arrearage due. The trial court granted Vicky leave
to file an amended petition. On March 2, 1995, Vicky
filed an amended petition specifying the exact arrearage
due. The case was set for trial.
During a pretrial conference on August 10, 1995, the
trial judge, sua sponte, determined that precedent from
the Appellate Court, Second District, rendered the
percentage provision in the agreement void and
unenforceable. On August 11, the trial judge allowed
brief argument concerning the validity of the percentage
provision. He then entered an order finding the child
support order void except for the minimum $450 provision
and dismissing Vicky's amended petition. Asserting that
neither party then resided in the Second District, Vicky
filed a motion to vacate the August 11 order due to
improper venue. On August 25, the trial judge found that
Vicky failed to raise venue in a timely fashion.
Vicky appealed the August 11 and August 25 decisions
of the trial judge. On appeal, Vicky asserted that the
trial judge erred in (1) denying her request for a change
of venue; and (2) finding the 25% provision of the
agreement void and unenforceable.
The appellate court affirmed the judgment of the
trial court. No. 2--95--1594 (unpublished order under
Supreme Court Rule 23). In affirming, the appellate court
followed section 512(d) of the Act and found that venue
was waived because it was not initially contested in
Vicky's answer. 750 ILCS 5/512(d) (West 1994). That issue
has not been appealed to this court. Further, the
appellate court believed that the plain language of
section 505(a)(5) of the Act mandated that child support
provisions in final orders be stated in specific dollar
amounts. Section 505(a)(5) states that "[t]he final order
[for child support] in all cases shall state the support
level in dollar amounts." 750 ILCS 5/505(a)(5) (West
1994). Believing that entry of an order expressing child
support as a percentage of income was beyond the court's
authority, the appellate court found the percentage order
void and unenforceable and affirmed the trial court.

In construing section 505(a)(5), we must ascertain
and give effect to the intent of the legislature. Varelis
v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 454
(1995). Courts should first look to the language of the
statute to determine the intent of the drafters. Nottage
v. Jeka, 172 Ill. 2d 386, 392 (1996). When the statutory
language is clear, no resort is necessary to other aids
of construction. Henry v. St. John's Hospital, 138 Ill. 2d 533, 541 (1990). We must first determine in this case
whether section 505(a)(5) of the Act mandates that child
support payments must be stated entirely as a specific
dollar amount or whether these payments may be expressed
partly as a percentage of net income, as was done in this
As we have noted, section 505(a)(5) provides that
"[t]he final order [for child support] in all cases shall
state the support level in dollar amounts." 750 ILCS
5/505(a)(5) (West 1994). We believe that the plain
language of the statute requires that the final order
state the support level solely in dollar amounts. The
legislature used the mandatory word "shall" to provide
that in "all cases" child support "shall" be stated in
dollar amounts and made no reference to the inclusion of
payments as a percentage. To allow settlement agreements
to be expressed in part as a percentage, as was done
here, would require us to read into the statute payment
options that the legislature did not include.
Although our decision is based on the plain language
of the statute, we note that our interpretation of the
provision is also consistent with its legislative
history. During debate on section 505(a)(5), which was
amended to its current form in 1985, Representative Olson
stated: "Final orders shall be in a dollar amount. This
[is] intended to help the clerk responsible for
collecting payments not to be dealing in percentages and
specific dollar amounts." 84th Ill. Gen. Assem., House
Proceedings, May 20, 1985, at 35 (statements of
Representative Olson). We believe that the plain language
and the legislative history of the statute thus preclude
child support orders from expressing child support
payments as a percentage of net income.
Having determined that section 505(a)(5) does not
allow child support orders to express payments as a
percentage of income, we must next determine whether
judgments entered after the passage of section 505(a)(5)
containing such orders are void or voidable. The question
whether a judgment is void or voidable depends on whether
the court entering the challenged order possessed
jurisdiction over the parties and the subject matter. See
People v. Davis, 156 Ill. 2d 149, 155 (1993). If
jurisdiction is lacking, any subsequent judgment of the
court is rendered void and may be attacked collaterally.
Davis, 156 Ill. 2d at 155. "Judgments entered in a civil
proceeding may be collaterally attacked as void only
where there is a total want of jurisdiction in the court
which entered the judgment, either as to the subject
matter or as to the parties." Johnston v. City of
Bloomington, 77 Ill. 2d 108, 112 (1979). A voidable
judgment, however, is one entered erroneously by a court
having jurisdiction and is not subject to collateral
attack. Davis, 156 Ill. 2d at 155-56. Once a court has
acquired jurisdiction, an order will not be rendered void
merely because of an error or impropriety in the issuing
court's determination of the law. Vulcan Materials Co. v.
Bee Construction, 96 Ill. 2d 159, 165 (1983); see 49
C.J.S. Judgments sec. 18(a) (1997). "Accordingly, a court
may not lose jurisdiction because it makes a mistake in
determining either the facts, the law or both." Davis,
156 Ill. 2d at 156.
Here, the trial court had jurisdiction over the
parties and over the dissolution proceeding in general.
Further, the court had jurisdiction over the award of
child support. In exercising this jurisdiction, however,
the trial court judge entered a judgment that was
contrary to the statute. We find that the trial court's
original judgment of dissolution allowing child support
paid by Stephen to be expressed as a percentage of net
income with fixed dollar limitations was an erroneous
judgment. The error in the judgment, however, is not
enough to divest the court of jurisdiction to enter the
order. The judge had jurisdiction of the parties and the
subject matter, and, although the judgment was erroneous,
the judge had authority to enter the child support order.
We reverse the decision of the appellate court
finding the percentage portion of the child support order
void. The original dissolution judgment of the trial
court awarding child support to be paid as a percentage
of net income with fixed dollar limitations is voidable,
not void, and is not subject to collateral attack. Davis,
156 Ill. 2d at 155-56. Thus, the trial court is therefore
directed to reinstate the original child support order.
We note that our result in this case is consistent
with the trend of modern authority on the closely related
question of defects in subject matter jurisdiction. The
contemporary view in that area, as exemplified by the
Restatement (Second) of Judgments, is to prefer finality
of an earlier judgment over alleged defects in its
validity. Restatement (Second) of Judgments sec. 12,
Reporter's Note, at 125 (1982); see also G. Hazard,
Revisiting the Second Restatement of Judgments: Issue
Preclusion and Related Problems, 66 Cornell L. Rev. 564,
586-91 (1981). Regarding the res judicata effect of a
judgment on an alleged defect in the subject matter
jurisdiction of the court rendering the judgment, section
12 of the Restatement (Second) of Judgments provides:
"When a court has rendered a judgment in
a contested action, the judgment precludes the
parties from litigating the question of the
court's subject matter jurisdiction in
subsequent litigation except if:
(1) The subject matter of the action was
so plainly beyond the court's jurisdiction
that its entertaining the action was manifest
abuse of authority; or
(2) Allowing the judgment to stand would
substantially infringe the authority of
another tribunal or agency of government; or
(3) The judgment was rendered by a court
lacking capability to make an adequately
informed determination of a question
concerning its own jurisdiction and as a
matter of procedural fairness the party
seeking to avoid the judgment should have
opportunity belatedly to attack the court's
subject matter jurisdiction." Restatement
(Second) of Judgments sec. 12 (1982).
If these criteria were applied to the present case,
one would readily conclude that the order challenged here
is not subject to collateral attack, and hence is
voidable rather than void. First, the trial court had the
authority to enter an order for support; the court simply
erred in the manner in which the amount was to be
calculated, using a percentage of income rather than a
fixed dollar amount. Thus, the order entered by the court
does not appear to be a manifest abuse of its authority
or an indication that the court exceeded its inherent
authority. The trial court's earlier judgment does not
implicate the authority of another tribunal or government
agency, nor was it rendered by a court lacking the
capability to consider its own jurisdiction. Thus, even
if the defect in the present order could be characterized
as pertaining to subject matter jurisdiction, the
Restatement would preclude collateral attack on the
Adoption of the view expressed in the Restatement
would, of course, require us to reexamine the analysis
offered by cases such as In re Estate of Steinfeld, 158 Ill. 2d 1 (1994). Expressing the traditional view
regarding defects in jurisdiction, Steinfeld stated, "A
void order or judgment is one entered by a court without
jurisdiction of the subject matter or the parties, or by
a court that lacks the inherent power to make or enter
the order involved. [Citations.] A void order may be
attacked, either directly or collaterally, at any time."
Steinfeld, 158 Ill. 2d at 12. The parties do not ask us
to adopt the rule expressed in the Restatement, however,
and therefore we need not decide in this case whether to
take that step. It is enough to conclude here that the
present order was voidable and not void under either our
traditional mode of analysis or the view expressed in the
Restatement. In this case, the parties had the
opportunity to fully litigate this question when the
support order was entered, and they had as well the
opportunity to bargain for, and benefit from, the terms
of the settlement agreement. Moreover, numerous other
support orders could be subject to collateral attack if
the present decree were found void. These considerations,
as well as the others cited above, lead us to conclude
that the trial court's order is not subject to collateral
Stephen also raises here his claims that Vicky's
"Amended Petition For Rule To Show Cause" did not state
a cause of action and that Vicky is seeking an order from
the court that would improperly modify child support
retroactively. Vicky further argues that she is entitled
to arrears for insufficient payments by Stephen in the
past and that the child support payments can exceed the
$1,000 maximum provided for in the original child support
order. Because the trial court found the original child
support order void, the trial court did not address these
issues. We therefore remand this cause to the circuit
court for further proceedings consistent with this

For the foregoing reasons, we find that section
505(a)(5) of the Act mandates that child support payments
be expressed solely as a fixed dollar amount. Further, we
find that the portion of the trial court's judgment which
expressed child support payments as a percentage of
appellee's net income was erroneous but that it did not
affect the court's jurisdiction of the parties and the
subject matter. Thus, the judgment is voidable, but not
void, and is subject only to direct attack. We therefore
reverse the judgments of the appellate court and the
trial court and remand the cause to the trial court for
disposition of all remaining issues.

Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.