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Fifth Division
Filed: 09/29/00

No. 1-99-2384

The Illinois Department of Public Aid (Department) appeals from an order of thecircuit court directing it to refund to defendant, David Mims, $660.40 representing anoverpayment of child support for defendant's minor daughter. On appeal, theDepartment asserts that the trial court lacked the requisite jurisdiction to order the refund,rendering its order void. Although defendant has not filed a brief on appeal, we willconsider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976).

The relevant facts, briefly summarized, indicate that in September 1996, plaintiff,Corean James, filed a complaint to establish that defendant was the father of her child,Helen, who was born in August 1994. In the complaint, plaintiff also sought childsupport from defendant. In January 1997, the trial court entered an order of parentageand support, establishing that defendant was Helen's father and ordering him to pay childsupport. The court also entered an order of withholding to secure child support paymentfrom defendant's income. In accordance with the trial court's order, during the course ofthe next two years, the defendant's employer withheld funds from the defendant's wagesand paid them to the State, which then disbursed them to the plaintiff, who had custodyof the minor daughter.

In January 1999, on defendant's motion, the trial court ordered child supportterminated because plaintiff had died. The court granted custody of Helen to defendantand ordered defendant's employer to stop withholding child support payments. Thereafter, the court conducted an account adjustment review, which established thatthere had been a support overpayment of $660.40, based upon tax intercepts which hadbeen paid to the State, but not yet disbursed to the plaintiff. The trial court ordered theDepartment to refund the $660.40 overpayment to defendant.

On appeal, the Department challenges the jurisdiction of the trial court to order arefund to defendant. Specifically, the Department contends that defendant failed to file acomplaint or petition naming the State as a party. The State was never joined in thisaction, and the State did not intervene in the action. The Department argues that becausethe State was never made a party to the action, the refund order was void for lack ofpersonal jurisdiction. In addition, the State contends that the trial court lacked subjectmatter jurisdiction because claims seeking recovery from the State fall within theexclusive domain of the Court of Claims.

The Illinois Public Aid Code provides that any final decision of the Departmentregarding tax refund intercepts shall be reviewed only under and in accordance with theprovisions of the Administrative Review Act (Act). 305 ILCS 5/10-17.3; 10-17.5 (West1998). Where the Act is expressly adopted, it is the exclusive method of review. Mandeville v. Trucano, 225 Ill. App. 3d 505, 507 (1992). The failure to commence anadministrative review action, where required, is jurisdictional, and the trial court does nothave subject-matter jurisdiction to act. Mandeville, 225 Ill. App. 3d at 508.

Furthermore, the Court of Claims exercises exclusive jurisdiction to hear "allclaims against the State founded upon any law of the State of Illinois or upon anyregulation adopted thereunder by an executive or administrative officer or agency." 705ILCS 505/8(a) (West 1998). A claim will be found to be against the State where ajudgment for the plaintiff could subject the State to liability or control the actions of theState. Aurora National Bank v. Simpson, 118 Ill. App. 3d 392, 397 (1983). Where aparty seeks a monetary judgment against an agency payable out of State funds, the properforum is the Court of Claims. Campbell v. Department of Public Aid, 61 Ill. 2d 1, 5(1975); Aurora National Bank, 118 Ill. App. 3d at 397.

In the instant case, the trial court's order requiring the Department to refund the$660.40 support overpayment previously withheld from defendant's wages constituted amonetary judgment against the State. We must agree that the statutory mandates set forthabove compel the conclusion that the circuit court lacked subject matter jurisdiction toorder the refund of $660.40. The Court of Claims is the proper forum in which to pursuethe defendant's right to reimbursement of support overpayments.

Accordingly, we must reverse the refund order of the circuit court. Yet, we do sowith extreme regret in light of the facts of this case. The State has never challenged thetrial court's authority to conduct the account adjustment review or to assess theoverpayment. It is apparently undisputed that the defendant is entitled to the $660.40refund ordered by the trial court. On this record, it is manifestly clear that the State isobligated to refund the $660.40 overpayment to the defendant and should do sovoluntarily without requiring him to take any further action.

The $660.40 sum at issue constituted funds withheld from the defendant forsupport of his child. The State has no right to this money. Rather, it acts as anenforcement agent for the minor child, for whom the money is held in trust. The moneywithheld for a child's benefit should actually be used to that end. It is would be distinctlyunfortunate if the State were to force the defendant, or any citizen of this state, to initiatean entirely new legal proceeding in an admittedly overburdened judicial system in orderto recover on a claim which is not in dispute, especially where the State has no colorableargument that it is entitled to retain the support overpayment. The conclusion we areforced to reach today has the unhappy and unintended result of rewarding the State for itsfailure to treat all of its citizens with fairness and dignity. We can only hope that thisdecision will not invite similar conduct in the future. Thus, we reach this decision withuneasy reluctance, finding it to be legally correct, but certainly not just.

In light of our decision that the trial court lacked subject matter jurisdiction, weneed not address the State's argument that the court lacked personal jurisdiction over it.

For the foregoing reasons, the judgment of the circuit court is reversed.

REVERSED.

CAMPBELL, P.J., and O' BRIEN, J., concur.