No. 2-13-0536 Opinion filed June 26, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

GARY W. COLLINS, ) Appeal from the Circuit Court ) of Du Page County. Petitioner-Appellant, ) ) v. ) No. 09-F-0247 ) THE DEPARTMENT OF HEALTH, ) AND FAMILY SERVICES ex. rel. WENDY ) PACZEK, ) Honorable ) Thomas C. Dudgeon, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

¶1 In 1997, the Illinois Department of Public Aid (IDPA) entered an administrative order

declaring petitioner, Gary W. Collins, the biological father of A.C. (the minor) and ordering him

to pay child support to Wendy Paczek, the minor’s mother. Thereafter, Paczek and the minor

relocated to Nashville, Tennessee, and petitioner relocated to a suburb of Columbus, Ohio.

While living in Ohio, petitioner filed in the circuit court of Du Page County a petition to abate or

reduce child support and a petition for indirect civil contempt. Petitioner served discovery

requests on respondent, the Illinois Department of Health and Family Services (IDHFS), which

the trial court had previously granted leave to intervene on Paczek’s behalf. The trial court, sua

sponte, entered an order transferring the matter to Tennessee after finding that neither party

resided in Illinois. Petitioner timely appealed, contending that the trial court erred in dismissing

both of his petitions for lack of jurisdiction. We affirm in part and reverse in part.

¶2 I. BACKGROUND

¶3 On August 13, 1997, IDPA entered an administrative paternity order that declared

petitioner as the minor’s biological father. Approximately one month later, IDPA ordered

petitioner to pay child support to Paczek. In May 2008, Paczek and the minor moved from

Rockford, Illinois, to Nashville, Tennessee.

¶4 On April 22, 2009, petitioner filed a parentage petition requesting that the trial court

modify the administrative paternity order. Petitioner alleged that IDPA had increased his child

support obligation and failed to consider that he paid for the minor’s health insurance. On

August 26, 2009, the trial court entered an agreed order providing that “any issues regarding

child support will be dealt with administratively. Any issues that cannot be dealt with

administratively will be reserved [and] dealt with judicially.”

¶5 On September 30, 2009, the trial court entered an agreed order for temporary child

support. The trial court also entered an order granting IDHFS leave to intervene on Paczek’s

behalf for child support issues. On October 6, 2009, the parties entered an agreed order for

custody and visitation, where the parties agreed that Paczek would contribute $50 per month for

the minor’s medical premiums and that the parties would split equally the costs of any uncovered

medical expenses. The order further provided that petitioner would be responsible for 66% of

the minor’s travel expenses incurred when traveling to see petitioner, with Paczek responsible for

the remaining 33%.

-2-

¶6 On February 5, 2010, petitioner filed a petition to modify child support after he had been

laid off from his job in Chicago. On May 14, 2010, the trial court entered an agreed order

reducing petitioner’s child support. In August 2010, petitioner moved to Columbus, Ohio, for a

new job.

¶7 On September 5, 2012, after being laid off from his job in Ohio, petitioner filed a petition

in the trial court to abate or to reduce child support below the statutory guidelines. Petitioner

also served IDHFS with discovery requests, including interrogatories and a financial disclosure

statement. On September 25, 2012, both petitioner and IDHFS appeared at a hearing on the

petition, and the trial court granted IDHFS 21 days to respond to petitioner’s discovery requests.

On October 5, 2012, IDHFS filed objections to petitioner’s discovery requests.

¶8 On October 10, 2012, petitioner filed a petition for indirect civil contempt against Paczek

for her failure to provide her portion of the minor’s health insurance and travel expenses. The

petition alleged that petitioner resided in Ohio; Paczek and the minor lived in Tennessee; the

minor visited petitioner four to six times per year; and Paczek had failed to pay petitioner her

share of the minor’s health insurance and travel expenses.

¶9 On October 18, 2012, IDHFS filed its response to petitioner’s petition to abate or to

reduce child support. The response did not object to the trial court’s jurisdiction. Petitioner and

IDHFS appeared before the trial court on November 14, 2012; Paczek did not appear. The

parties reached a partial agreement on petitioner’s outstanding discovery requests, and the trial

court continued the matter until December 19, 2012, for a status hearing on the remaining

discovery requests, with which IDHFS ultimately complied.

-3-

¶ 10 At the December 19, 2012, hearing, the trial court ordered that all matters be transferred

to Nashville, Tennessee. The trial court’s order found that neither party resided in Illinois and

that the case was being transferred “[o]n the [c]ourt’s own motion.”

¶ 11 On January 18, 2013, petitioner filed a motion to reconsider. Petitioner argued that,

pursuant to the Uniform Interstate Family Support Act (the Act) (750 ILCS 22/100 et seq. (West

2012)), the trial court retained jurisdiction to enforce its orders and therefore the trial court had

jurisdiction. Petitioner also attached an affidavit averring that he owned a home in Du Page

County; he moved to Ohio for a job; he had been interviewing for jobs in the Chicago area after

having been laid off; he had taken steps to begin the process of moving back to Illinois; and he

did not intend to remain in Ohio. IDHFS responded to petitioner’s motion to reconsider by

arguing that, while the trial court retained jurisdiction to enforce previously entered support

orders, it did not have jurisdiction to modify such orders.

¶ 12 On April 25, 2013, the trial court denied petitioner’s motion to reconsider. The trial court

concluded that “[a] definite plan [to move back to Illinois] does not create residency. *** [T]he

facts of this case are that no one resides in Du Page County *** and ha[s] not resided in this

jurisdiction for many years. *** [T]here is no nexus to [Illinois] given the use of the term

residence in the statute that would give me continuing exclusive jurisdiction over these

proceedings.” The trial court’s order specified that it “did not retain continuing jurisdiction to

enforce child support.” Petitioner timely appealed.

¶ 13 II. ANALYSIS

¶ 14 The only issue in this appeal is whether the trial court erred in dismissing petitioner’s

petitions to modify and for indirect civil contempt.

-4-

¶ 15 Resolution of this issue requires us to interpret the Act (750 ILCS 22/100 et seq. (West

2012)) and our review is, therefore, de novo. See In re Marriage of Best,

(2008) (citing Fisher v. Waldrop,

(2006)). The primary objective of

statutory interpretation is to give effect to the intent of the legislature, and the most reliable

indicator of intent is the language of the statute given its plain, ordinary, and popularly

understood meaning. In re Marriage of Rogers,

(2004). The statute

“ ‘should be read as a whole with all relevant parts considered.’ ” Gardner v. Mullins,

(2009) (quoting Kraft, Inc. v. Edgar,

(1990)). If the statutory

language is clear, a reviewing court does not need to resort to extrinsic aids of construction, such

as legislative history (Northern Kane Educational Corp. v. Cambridge Lakes Education Ass’n,

(2009)), and, in such situations, a court may not depart from the plain

language of the statute and read into it exceptions, limitations, or conditions that are inconsistent

with the express legislative intent. Landheer v. Landheer,

(2008).

¶ 16 Section 22/205 of the Act provides:

“(a) A tribunal of this State that has issued a support order *** shall exercise

continuing, exclusive jurisdiction to modify its child-support order if the order is the

controlling order and:

(1) at the time of the filing of a request for modification this State is the

residence of the obligor, the individual oblige, or the child for whose benefit the

support order is issued; or

(2) even if this State is not the residence of the obligor, the individual

oblige, or the child for whose benefit the support is issued, the parties consent in a

-5-

record or in open court that the tribunal of this State may continue to exercise the

jurisdiction to modify its order.” 750 ILCS 22/205 (West 2012).

¶ 17 “The [Act] creates a mechanism which facilitates the reciprocal enforcement or

modification of child support awards entered in Illinois and other states which have also adopted

the [Act].” In re Marriage of Hartman,

(1999). The National

Conference of Commissioners on Uniform State Laws originally promulgated the model

Uniform Interstate Family Support Act (the Model UIFSA) in 1992 and Congress mandated in

1996 that states adopt the Model UIFSA to remain eligible for federal funding of child support

enforcement. In re Marriage of Gulla,

(2009) (citing

(f)

(2000)). Therefore, the Act seeks to provide “unity and structure in each state’s approach to the

modification and enforcement of child support orders.” (Internal quotation marks omitted.)

Gulla,

. Our supreme court has “long recognized” that a court must construe

uniform legislation so as to give effect to the purpose of promoting harmony in the law.

¶ 18 In Zaabel v. Konetski,

(2004), our supreme court addressed section 205 of

the Act. There, the trial court entered an order dissolving the parties’ marriage and the

dissolution order incorporated a written settlement agreement.

. That agreement

provided that the wife would retain custody of the minor children and that the husband would

pay for certain “ ‘extraordinary’ ” medical expenses incurred by the children.

After the wife

and the minors moved to Iowa, and the husband moved to Arizona, the wife brought a petition

for indirect civil contempt in Illinois, alleging that the husband had failed to pay extraordinary

medical expenses.

The husband moved to dismiss the petition on the basis that the trial court

lacked both subject matter and personal jurisdiction.

. The trial court denied the

motion to dismiss, and the husband appealed with respect to subject matter jurisdiction only.

-6-

¶ 19 On appeal, the husband noted that Illinois was no longer the residence of “the obligor, the

obligee, or the children.” Id. at 133. The husband argued that, pursuant to section 205(a) of the

Act, jurisdiction remained in Illinois until none of the parties resided in Illinois or section

205(a)(2) was satisfied, whichever occurred first. See id. Finding section 205(a) ambiguous, the

supreme court looked to authority from other jurisdictions. The court noted that, as other courts

had found, the official comment to section 205 of the Model UIFSA stated that, “ ‘if all the

relevant persons―the obligor, the individual obligee, and the child―have permanently left the

issuing state, the issuing state no longer has an appropriate nexus with the parties or child to

justify exercise of jurisdiction to modify.’ ” Id. at 134 (quoting Unif. Interstate Family Support

Act § 205 (1996), Comment, 9 U.L.A. 285-86 (1999)). The court concluded that the drafters’

intent for section 205(a) of the Model UIFSA was “very persuasive evidence of the intent of our

legislature, because section 205(a) of the [Act] copies section 205(a) of the [Model UIFSA]

verbatim.” Id. at 135.

¶ 20 Nonetheless, the Zaabel court concluded that section 205(a) applied only to the court’s

jurisdiction to modify a support order. Id. Consistent with holdings from courts in other

jurisdictions, section 205(a) did not apply to the trial court’s jurisdiction to enforce a support

order. Id. (citing Linn v. Delaware Child Support Enforcement,

(Del. 1999)

(holding that jurisdiction to enforce remains in the issuing state so long as no other state has

assumed continuing exclusive jurisdiction)). Therefore, the trial court had jurisdiction to enforce

unless the husband was able to establish that the wife’s petition was “an attempt to modify, not

merely enforce, the support order that the circuit court entered when [the parties] divorced.”

Because the husband did not attempt to argue that the wife’s petition for indirect civil contempt

was a petition to modify, the husband’s motion to dismiss failed. Id. at 136. Thus, the clear

-7-

implication of Zaabel is that, after all of the parties have permanently left the state that issued the

support order, that state retains jurisdiction to enforce the order, but not to modify it.

¶ 21 Other jurisdictions that have addressed this issue reached a similar conclusion. In Jurado

v. Brashear, 2000-1306 (La. 3/19/01);

, the father and the mother had two children

who were born in Louisiana. Id. p. 2. After the father moved to Mississippi, a Louisiana court

issued an order obligating the father to pay child support because the court awarded the mother

sole custody. Id. Thereafter, the mother and the minor children moved to Ohio. Six months

after leaving Louisiana, the mother brought a motion in Louisiana to increase child support,

based on an alleged increase in the father’s income. Id. The trial court entered an order

increasing child support. The intermediate reviewing court affirmed, concluding that the trial

court retained jurisdiction to modify its support order even though the obligor, the obligee, and

the children had all left the state. Id.

¶ 22 The Louisiana Supreme Court disagreed. The court began its analysis by noting that, in

1995, Louisiana adopted its version of the Act, which mirrored the Model UIFSA. The court

noted that a court in Louisiana that has issued a support order retains “continuing, exclusive

jurisdiction *** (1) as long as this state remains the residence of the obligor, the individual

obligee, or the child for whose benefit the support order is issued.” Id. p. 5 (quoting La. Child.

Code Ann. art. 1302.5 (1996)). The court summarized that provision, along with others, as

providing that, once a support order is issued, the issuing court retains jurisdiction until (1) the

obligor, the individual obligee, and the children all establish residency outside of the issuing

state, (2) the parties consent in writing to continuing exclusive jurisdiction by another state, or

(3) another state modifies the order of the issuing state in compliance with the UIFSA. Id. p. 6.

Thus, the court concluded that, although a court retained jurisdiction to enforce an order, “the

-8-

issuing court cannot modify a child-support order after the obligor, obligee, and child all leave

the state permanently.” (Emphasis in original.) Id. p. 7-8. Because the mother sought a

modification of a prior order, in the form of an increase in support payments, the court concluded

that her request for modification should have been dismissed. Id. p. 9.

¶ 23 More recently, the California Court of Appeals concluded that, based on its version of the

Model UIFSA, a court lost jurisdiction to modify a support order once the obligor, the obligee,

and the minor children had moved out of the state. In re Marriage of Haugh,

(Cal. Ct. App. 2014) (“[C]ourt did not have continuing, exclusive jurisdiction to modify the

original child-support order after the individual parties and their child moved to other states and

did not consent in writing to California’s continuing jurisdiction or authority over the case.”). As

the court in Haugh noted:

“ ‘Virtually every jurisdiction that has addressed this issue has concluded that the issuing

tribunal loses subject matter jurisdiction when all of the parties to the child support

action have moved outside the state. See Knowlton v. Knowlton,

,

(Okla. Civ. App. 2005); In re Marriage of Metz,

,

(Kan. Ct. App. 2003) (Kansas court no longer had continuing,

exclusive jurisdiction to modify the child support order when mother, father, and children

had moved from Kansas); Cohen v. Powers,

,

(Or.

Ct. App. 2002) (Alabama court no longer had continuing, exclusive jurisdiction over

support order under [the] UIFSA because neither party resided in Alabama); Jurado v.

Brashear,

(La. 2001) (Louisiana court lost continuing, exclusive

jurisdiction to modify child support after the parties and children left the state); Etter v.

Etter,

,

(Okla. Civ. App. 2001) (trial court did

-9-

not have jurisdiction under [the] UIFSA to modify child support after both parties had

moved out of state); LeTellier v. LeTellier,

(Tenn. 2001) ([the]

UIFSA does not confer subject matter jurisdiction upon the Tennessee court to hear

mother’s petition to modify the District of Columbia’s support order); In re B.O.G.,

(Tex. App. 2001) (Texas court no longer had jurisdiction to modify the

support order under [the] UIFSA because the parties no longer resided in Texas).’ ”

(Emphasis in original.)

at 690 (quoting Lunceford v. Lunceford,

(Mo. Ct. App. 2006)).

The Haugh court’s recitation of how other jurisdictions have interpreted continuing exclusive

jurisdiction under their versions of the UIFSA is consistent with our research. We are aware of

only one court that concluded that an issuing state retains continuing exclusive jurisdiction after

all parties have left the state. See In re Marriage of Wareham,

(Minn.

Ct. App. 2010) (holding that “an issuing Minnesota tribunal retains continuing, exclusive

jurisdiction over its child-support order even if none of the parties or their children remain state

residents unless all of the individual parties file consents for another state to assume

jurisdiction”).

¶ 24 In the present case, we adopt the rationale of the majority of other jurisdictions.

Therefore, we conclude that, once the obligor, the obligee, and the minor children who are

subject to a support order no longer reside in Illinois, the issuing Illinois court loses continuing

exclusive jurisdiction to modify that order. Our holding is consistent with our supreme court’s

conclusion that our legislature intended that, once the obligor, the obligee, and the minor

children no longer reside in the issuing state, that state lacks a sufficient nexus with the parties to

justify modifying a support order. See Zaabel,

.

- 10 -

¶ 25 Nonetheless, we also conclude that, until a different jurisdiction obtains continuing

exclusive jurisdiction over a support order, Illinois, as the issuing state, retains jurisdiction to

enforce that order. Id. at 135. In the present case, therefore, the trial court erred when it

dismissed petitioner’s October 10, 2012, petition for indirect civil contempt, which sought to

enforce a prior order providing that Paczek would pay $50 per month for the minor’s health

insurance, 50% of the minor’s uncovered medical expenses, and 33% of his travel expenses.

¶ 26 We recognize that, as petitioner notes, challenging a court’s personal jurisdiction is an

affirmative defense that generally must be raised before filing a responsive pleading. See 735

ILCS 5/2-301(a-5) (West 2012). While a party must raise an affirmative defense or that defense

will be forfeited, there are certain situations where a court should sua sponte consider an

affirmative defense. In First Mortgage Co. v. Dina,

, this court

considered whether the defendants forfeited an affirmative defense, that a mortgage lender was

not properly licensed, by failing to timely raise that defense. Id. ¶ 1. We noted that an

affirmative defense that was not timely raised is typically forfeited. Id. ¶ 25. Nonetheless, we

also noted that a court should consider whether an agreement is unenforceable as against public

policy even if the parties do not raise the issue and that “the defense is unlike an ordinary

affirmative defense, such as one based on the statute of limitations; the difference is due to the

public interest in the outcome.” Id. We emphasized that, regardless of how an affirmative

defense is raised, the plaintiff must have a fair opportunity to respond, which it had. Id.

¶ 27 We believe that a similar rationale should be employed here. This is not a typical

personal-jurisdiction affirmative defense where a defendant asserts that he lacks sufficient

minimum contacts. Rather, the issue here is whether the trial court had authority to modify an

existing support order under the Act, a statute intended to promote “unity and structure in each

- 11 -

state’s approach to the modification and enforcement of child support orders.” (Internal

quotation marks omitted.) Gulla,

. Thus, the public, both within this state and

in other jurisdictions, has a compelling interest in a court’s following its state’s version of the

Model UIFSA, even when that issue is not raised by the parties. We also emphasize, as we did

in Dina, that the record reflects that petitioner had a fair opportunity to respond to the trial

court’s decision to dismiss the petition, during the hearing on petitioner’s motion to reconsider.

See Dina,

, ¶ 25.

¶ 28 We do, however, reject petitioner’s argument that, pursuant to section 15(b) of the Illinois

Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/15(b) (West 2012)) and section 511 of

the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/511 (West

2012)), the trial court retained jurisdiction to modify the support order. Section 15(b) provides

that failing to comply with an order entered pursuant to the Parentage Act “shall be punishable

by contempt.” 750 ILCS 45/15(b) (West 2012)). The provision does not speak to modifying a

prior support order after the parties have left Illinois. Further, section 511 of the Marriage Act

addresses enforcement and modification of a marriage-dissolution order. Because the parties in

the present case were never married, a marriage-dissolution order is not at issue in this appeal

and we will not issue an advisory opinion regarding how the Act affects section 511 of the

Marriage Act. See In re John Doe Investigation,

, ¶ 7 (noting that a

reviewing court will not issue advisory opinions merely to set precedent or guide future

litigation).

¶ 29 Finally, we reject petitioner’s argument that IDHFS consented to the trial court’s

continuing exclusive jurisdiction to modify the support order. Petitioner argues that IDHFS’s

response to the petition to modify meets the requirement in section 205(a)(2) that the parties

- 12 -

consent “in a record” to the court’s continuing exclusive jurisdiction (750 ILCS 22/205(a)(2)

(West 2012)), with “record” being defined as “information that is inscribed on a tangible

medium or that is stored in an electric or other medium and is retrievable in perceivable form”

(750 ILCS 22/102 (West 2012)). Petitioner has not provided any authority for his assertion that

filing a response constitutes “consent,” and we deem this issue forfeited pursuant to Illinois

Supreme Court Rule 341(h)(7) (eff. July 1, 2008). See Wolfe v. Menard, Inc.,

(2006) (noting that a reviewing court is not a depository in which the appealing party

may dump the burden of argument).

¶ 30 III. CONCLUSION

¶ 31 For the foregoing reasons, we affirm the trial court’s dismissal of petitioner’s September

5, 2012, petition to abate or to reduce child support, because that petition sought to modify a

prior support order after the parties had left Illinois. However, we reverse the trial court’s

dismissal of petitioner’s October 10, 2012, petition for indirect civil contempt for Paczek’s

failure to contribute to the minor’s health insurance and travel expenses, because the trial court

retained jurisdiction to enforce that order. We remand the cause.

¶ 32 Affirmed in part and reversed in part; cause remanded.

- 13 -