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                                                                                                   THIRD DIVISION

                   SEPTEMBER 29, 2000

1-98-3696

Petitioner, Susannah Lerner, has appealed for the secondtime a matter concerning the October 22, 1990, post-divorcejudgment which ordered that respondent, Robert M. Lerner, paysupport and medical expenses for their disabled adult child,Andrew Lerner.

In the prior appeal of petitioner, this court reversed thecircuit court order of August 27, 1992, which vacated the supportorder of October 22, 1990, and we reinstated the support order ofOctober 22, 1990. In re Marriage of Lerner, No. 1-92-3310(1994).

On September 2, 1998, the circuit court entered an orderthat respondent Robert Lerner had no obligation to pay support ormedical expenses for his adult child because a probate courtdetermination of disability was required prior to a domesticrelations court having jurisdiction to award support for adisabled adult child.

The circuit court determined that the September 2, 1998,order involved the following question of law:

"Whether an alleged mentallydisabled person is a necessary party toa petition pursuant to Section 5/513(a)(1) of the Illinois Marriage andDissolution of Marriage Act (750 ILCS5/513) to determine the nature andextent of his disability, when itoccurred, whether it is temporary or permanent in nature."

The September 2, 1998, order is the subject of this appeal. Wereverse and remand for further proceedings.

The circuit court order of October 22, 1990, determined thatAndrew, who was an adult at that time, was disabled pursuant tosection 513 of the Illinois Marriage and Dissolution of MarriageAct (750 ILCS 5/513 (West 1998)) (the Act) and was in need ofsupport. Robert was ordered to pay support to Susannah forAndrew. Judgment was entered in favor of Susannah and against Robert for $28,387.72 for Andrew's medical expenses.

The circuit court thus found that, under Section 513, Andrewwas disabled prior to his 18^th birthday. If the court had foundthat Andrew had become disabled after he became an adult, thecircuit court could not have ordered Robert to pay support forAndrew pursuant to section 513.

According to the prior Rule 23 order, petitioner filed, onNovember 21, 1989, a petition for support of Andrew, whoallegedly was mentally disabled since before his 18th birthday. On September 18, 1990, an order of default was entered againstrespondent based on his failure to file an appearance, appear incourt on that date, and to comply with discovery orders. A proveup was held on October 17, 1990, and on October 22, 1990, thetrial court granted petitioner's request. Respondent was orderedto maintain medical insurance for Andrew so long as Andrew wasdisabled, to pay a portion of Andrew's medical bills to date, andto pay $1,500 per month to petitioner for Andrew's support.

Also according to the Rule 23 order, on May 15, 1991,respondent filed a petition to vacate the October 22, 1990,order. On August 27, 1992, the trial court vacated the October22, 1990, order with respect to Andrew, noting that there was noprior determination of his disability and that petitioner lackedstanding to bring such a petition for an adult. Petitionerappealed from the 1992 order.

The appellate court held that respondent's petition tovacate should have been denied because he had not established duediligence in bringing the petition. The trial court's order ofOctober 27, 1992, was vacated.

On March 26, 1997, respondent filed a petition to declarethe October 22, 1990, order void. He argued that no notice ofthe proceedings had been served on Andrew under the Probate Act.

On September 2, 1998, the trial court granted respondent'ssecond motion to vacate. The order stated the following:

1) A probate court proceeding was necessary for Andrewto have a legal representative to determine the nature andextent of Andrew's disability, if it did exist. The probatecourt would have to determine the date when the disabilityoriginated and whether it was permanent or temporary. Thedomestic relations court would then have jurisdiction todetermine the amount of support based upon that disability.

2) The October 22, 1990, order was not void.

3) The October 22, 1990, order finding Andrew disabledpursuant to section 513 was binding only on respondent.

4) The October 22, 1990, order was not binding onAndrew. Until the nature and extent of Andrew's disabilitywas determined, the court would not authorize any supportpayments for Andrew, past or present, nor authorize anyexpenses, past or present, to be paid on his behalf or to beincurred on his behalf.

5) Respondent had no obligation for any expensesincurred for Andrew, including payments to petitioner,pursuant to the October 22, 1990, order, up to July 8, 1998,because the October 22, 1990, order was not binding onAndrew.

The order also certified the question of law that was quotedabove.

On September 30, 1998, the trial court found that, underSupreme Court Rule 304(a), petitioner could appeal from theSeptember 1, 1998, order.

On October 1, 1998, petitioner filed a notice of appeal.

Preliminarily, we note that, as the trial court subsequentlymade a Supreme Court Rule 304(a) finding, we are not limited tothe certified question that was made pursuant to Supreme CourtRule 308. 155 Ill. 2d Rs. 304(a), 308.

Petitioner first argues that it was not necessary undersection 513 of the Act that a prior probate court proceedingdetermine the nature and extent of Andrew's disability.

Our standard of review is de novo because this issueconcerns statutory interpretation. First Bank and Trust Co. ofO'Fallon, Illinois v. King, 311 Ill. App. 3d 1053, 1059, 726 N.E.2d621 (2000).

Section 513 of the Illinois Marriage and Dissolution ofMarriage Act states in relevant part:

"(a) The court may award sums of money out of the property and income of either or both parties or the estateof a deceased parent, as equity may require, for the supportof the child or children of the parties who have attainedmajority in the following instances:

(1) When the child is mentally or physically disabledand not otherwise emancipated, an application for supportmay be made before or after the child has attainedmajority." 750 ILCS 5/513 (West 1998).

The overriding objective in interpreting a statute is toascertain and give effect to the intent of the legislature. Roser v. Anderson, 222 Ill. App. 3d 1071, 1075, 584 N.E.2d 865(1991). To ascertain the legislature's intent, we first look tothe plain language of the statute. Burnett v. Safeco InsuranceCo., 227 Ill. App. 3d 167, 173, 590 N.E.2d 1032 (1992). Languageis to be given its ordinary and popularly understood meaning. Roser, 222 Ill. App. 3d at 1075. In addition to the languagechosen by the legislature, the court should consider the reasonfor the law, the evil to be remedied, and the purpose to beobtained thereby. Roser, 222 Ill. App. 3d at 1075. The IllinoisMarriage and Dissolution of Marriage Act, of which section 513 isa part, is to be liberally construed. In re Marriage of Brand,123 Ill. App. 3d 1047, 1052, 463 N.E.2d 1037 (1984).

There is no reference in section 513 to a probate courtproceeding. That the term "disabled" is not defined does notdemonstrate a legislative intent that the child first be declareddisabled in a probate court proceeding. The legislature couldhave provided such a prerequisite; as it did not, it intended adistinct proceeding in which a parent can seek support for adisabled adult child even if he has the ability to manage his ownaffairs. Section 513 implicitly gives the trial judge in aproceeding brought before it the power to determine if a child isdisabled within the meaning of the Act.

The Probate Act permits the appointment of a guardian for adisabled person who because of his disability (a) lackssufficient understanding or capacity to make or communicateresponsible decisions concerning the care of his person or (b) isunable to manage his estate or financial affairs. 755 ILCS5/11a-3 (West 1998). The Probate Act defines "disabled person"as "a person 18 years or older who (a) because of mentaldeterioration or physical incapacity is not fully able to managehis person or estate, or (b) is a person with mental illness or aperson with a developmental disability and who because of hismental illness or developmental disability is not fully able tomanage his person or estate, or (c) because of gambling,idleness, debauchery or excessive use of intoxicants or drugs, sospends or wastes his estate as to expose himself or his family towant or suffering." 755 ILCS 5/11a-2 (West 1998).

In construing section 513, the courts have used dictionarydefinitions of disabled that do not, in contrast to the ProbateAct's definition, concern the inability to manage one's affairs. See In re Marriage of Winters, 160 Ill. App. 3d 277, 282, 512 N.E.2d1371 (1987)("the inability to pursue an occupation or performservices for wages because of physical or mental impairment"); Inre Marriage of Thurmond, 306 Ill. App. 3d 828, 832, 715 N.E.2d 814(1999) ("incapacitated by or as if by illness, injury, orwounds").

Because of the different purposes of section 513 and of theProbate Act's provision for appointment of a guardian, a childcould be disabled within the meaning of section 513 and not bedisabled within the meaning of the Probate Act. For example, achild could become temporarily physically disabled one day beforehis 18^th birthday and not be able to support himself but stillable to manage his estate and financial affairs. In that case,he would not be entitled to the appointment of a guardian underthe Probate Act (see Udstuen v. Patterson, 198 Ill. App. 3d 67, 68,555 N.E.2d 750 (1990) (a person was not legally disabled who wasinjured and confined in a health-care facility for a period oftime because she could still fully manage her person andestate)), but a parent could seek disabled adult child supportfor him under section 513.

We conclude that a probate court's determination ofdisability is not required by section 513 and that a domesticrelations judge has the power to make a determination ofdisability pursuant to a section 513 petition.

Petitioner also argues that the trial court erred in notenforcing the prior order of support that it did not find void. Petitioner is correct. Even if the order was not binding onAndrew, it was binding on respondent to pay petitioner forAndrew's support.

Petitioner also argues that Andrew was not a necessary partyto the proceedings on her petition. Respondent argues thatAndrew was a necessary party and that, because of his nonjoinder,the order of October 22, 1990 was void.

There is authority that an order entered by a court withoutjurisdiction over a necessary party is void. E.g., State FarmAutomobile Insurance Co. v. Haskins, 215 Ill. App. 3d 242, 245, 574N.E.2d 1231 (1991). It has also been stated that the issue ofnonjoinder of necessary parties can be raised for the first timeon appeal. Haskins, 215 Ill. App. 3d at 245.

We conclude that Andrew was not a necessary party undersection 513. Therefore we do not have to determine whetherrespondent's second petition timely raised the issue of theorder's voidness because of the lack of a necessary party.

The Code of Civil Procedure does not contain one provisionspecifying who must be joined as a party. A necessary party isone whose presence is required for any one of three reasons: (1)to protect an interest that the absent person has in the subjectmatter of the controversy that would be materially affected by ajudgment entered in his absence; (2) to reach a decision thatwill protect the interests of those parties before the court; and(3) to enable the court to make a complete determination of thecontroversy. Lain v. John Hancock Mutual Life Insurance Co., 79 Ill. App. 3d 264, 268-69, 398N.E.2d 278 (1979).

Although Andrew was the subject of the proceeding, his joinder as a party was notnecessary to make a complete determination of the controversy. His joinder was also notnecessary to reach a decision that would protect the parties before the court. The only one of thethree reasons for finding joinder necessary, as stated in Lain, 79 Ill. App. 3d at 268-69, that ispossibly applicable to this case is to protect an absent party's interest that would be materiallyaffected.

However, we conclude that Andrew's joinder was not necessaryto protect his interest in receiving child support; his motherwas representing that interest. Andrew might have an objectionto being found disabled in this proceeding; however, no rightsare being taken away from him based on the determination ofdisability. He was found disabled only for the purposes ofsection 513. In fact, Andrew benefitted from the judgmentbecause he will have the benefit of the funds paid to his mother. Respondent's concerns over the "intolerable problems" that willexist because of this order's finding of disability are specious. No one has been appointed guardian to handle Andrew's affairs; heis not hampered by the section 513 finding.

The trial court erred in finding that the child supportobligation established in the 1990 order was not binding onrespondent.

We will not address respondent's additional argument thatAndrew was not emancipated at the time of the section 513petition because the fact of Andrew's emancipation would not makethe 1990 order void. See Siddens v. Industrial Commission, 304Ill. App. 3d 506, 511, 711 N.E.2d 18 (1999) (a judgment or orderis void where it is entered by a court or agency which lackspersonal jurisdiction, subject-matter jurisdiction, or theinherent power to enter the particular judgment or order, orwhere the order is procured by fraud). Respondent does not arguethat the trial court lacked the authority to make thedetermination under section 513 but rather that its decision waserroneous because Andrew was emancipated.

However, we note that the order of October 22, 1990,implicitly found that Andrew was not emancipated. If the courthad found that Andrew was indeed emancipated, it could not haveordered respondent to pay for the support of an adult.

We find that the circuit court's ruling that a probate courtproceeding with a legal representative for a child, in which itis found that the child is disabled, is necessary before thedomestic relations court would have jurisdiction to issue anorder of support upon the divorced parent was erroneous.

We further find that the court's ruling that, until theprobate court determines the nature and extent of Andrew'sdisability, the court would not authorize any past or presentsupport or expense payments for Andrew was erroneous.

The time has come when Robert must begin complying with thesupport and medical expense provisions of the October 22, 1990,court order. He should no longer delay fulfilling his obligationto support his child.

The judgment of the trial court is reversed, and the causeis remanded.

Reversed and remanded.

HALL, P.J., and WOLFSON, J., concur.