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29 August 2000

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PRESIDING JUSTICE COOK delivered the opinion of the court:

Petitioner Ann A. Jorczak, n/k/a Ann A. Wilder, appealsfrom the order of the trial court refusing to award her a childsupport arrearage and a claim for orthodontic expenses againstrespondent Rick E. Jorczak. We reverse as to the arrearage,affirm as to the orthodontic expenses, and remand for furtherproceedings.

The parties were married in November 1977. One child,Eve, was born of the marriage in May 1979. The parties agreed todissolve their marriage in the fall of 1985 and entered into amarital settlement agreement dated October 31, 1985. Accordingly, the trial court entered a judgment of dissolution on December 17, 1985, said judgment incorporating the settlementagreement by reference. The settlement agreement provided thatRick pay Ann $300 per month in child support commencing onNovember 1, 1985, and continuing so long as Ann retained day-to-day custody of Eve. Ann apparently retained such custody at allpertinent times. Ann filed the instant action, claiming arrearage and deficiencies as to child support and orthodontic expenses, on May 11, 1998, eight days after Eve reached 19 years ofage.

The parties presented conflicting evidence regardingchild support payments. Ann's evidence consisted mainly of hertestimony. She admits that Rick paid in accordance with theterms of the agreement for the months November 1985 through July1986. Her petition originally claimed that the arrearage totaled$38,700, which is approximately the amount the arrearage wouldtotal had Rick paid nothing for the remainder of Eve's minority.

Rick, however, claimed that he continued to pay childsupport throughout, albeit not strictly according to the terms ofthe agreement. In response to Ann's discovery requests, heproduced several canceled checks made payable mainly to Ann (witha few to Eve) and adduced these at trial. These checks totalapproximately $2,700. Perhaps not coincidentally, Ann admittedat trial that Rick had continued to pay sporadically but deniedthat he had paid more than a total of $3,000. Rick claims thathe paid much more than this but that he has lost the pertinentdocumentation in the intervening time, owing to several changesof residence and other circumstances. He also claims that atsome point he and Ann agreed that he would directly pay Eve $200per month and pay approximately $100 per month for Eve's carinsurance, in lieu of payments to Ann.

Finally, Ann asserts that a provision of the separationagreement mandated that Rick provide insurance covering the$3,750 cost of Eve's orthodontic treatment. Rick denies thisconstruction.

The trial court did not award Ann anything either as tounpaid child support or orthodontic expenses. As to childsupport, the court's findings included the following:

"11. Respondent did not make the childsupport payments provided for in the[j]udgment of [d]issolution of [m]arriage;

12. Petitioner kept no records as tochild support paid to her by [r]espondentafter November 1, 1985;

13. Petitioner's testimony, based uponher recollection, that after the [r]espondentwas discharged from the United States Navy inAugust 1986, he only made child supportpayments of $50 or $60, on an irregularbasis, which totaled no more than $3,000, wasimpeached and contradicted;

14. Petitioner is required to prove, bycompetent evidence, not only that[r]espondent owes her unpaid child supportbut also the amount which he owes;

15. The dollar amount of any childsupport arrearage judgment entered based uponthe evidence presented at the hearing on[p]etitioner's petition could only be basedupon speculation, guess[,] and conjecture."

The court's finding in paragraph 11 that Rick did notfulfill his child support obligation under the settlementagreement appears to be inconsistent with its award of nothing toAnn on this claim. The difficulty may have arisen because thetrial court erroneously allocated the burden of proof regardingthe alleged arrearage.

Which party will have the burden of proof regardingalleged arrearage of a child support obligation is a question offirst impression in Illinois; indeed, the question has beeninfrequently litigated throughout the whole of our modern civiljurisprudence. Nonetheless, we conclude that when the trialcourt required Ann to prove the amount of the arrearage, iterred. The confusion may have arisen from the court'scharacterization of Ann's requested relief as "damages." Strictly speaking, Ann is not an injured party seeking recompensefor injury but, rather, an obligee seeking satisfaction of theobligation created by the judgment of dissolution, whichincorporated the separation agreement by reference. Sections3(j) and (k) of the Expedited Child Support Act of 1990 (750 ILCS25/3(j), (k) (West 1998)), for example, define "obligee" and"obligor" in this manner. Similarly, section 505(d) of theIllinois Marriage and Dissolution of Marriage Act (750 ILCS5/505(d) (West 1998)) states that support orders are "deemed tobe a series of judgments against the person obligated to paysupport thereunder" and are "deemed entered as of the date thecorresponding payment or installment becomes due." This operatesto define Ann as a judgment debtor. Thus, Ann need onlyestablish the existence of the obligation itself, i.e., thedissolution judgment and underlying agreement. Rick is anobligor and, inasmuch as he claims to have satisfied theobligation in whole or in part, he is asserting the defense ofpayment. Section 2-613(d) of the Code of Civil Procedure (735ILCS 5/2-613(d) (West 1998)) prescribes that payment is anaffirmative defense, to be pleaded as such. The burden of proofis therefore upon the party claiming it; here, Rick. SeeInsurance Co. of North America v. Knight, 8 Ill. App. 3d 871,876, 291 N.E.2d 40, 45 (1972).

Rick clearly attempted to establish a defense ofpayment. Rick therefore had the burden to establish the extentof payment; Ann did not have the burden to establish nonpayment. The trial court appears to have at least partially acceptedRick's defense; hence its finding that Ann's testimony had beenimpeached and contradicted. Our review of the record does notindicate that this finding was against the manifest weight of theevidence. On remand, the trial court should specifically findthe extent to which Rick proved payment.

Relatedly, we note that Rick at certain points hasattempted to assert the defense of laches, claiming that Ann'sdelay in bringing an enforcement action has prejudiced hisability to obtain and adduce proof of past payments. Our courtshave traditionally rejected such claims, often finding that therequisite element of prejudice was lacking. See, e.g., Finley v.Finley, 81 Ill. 2d 317, 329-30, 410 N.E.2d 12, 18 (1980) (havingto pay arrearage in one lump sum does not constitute prejudice). In theory, however, laches as an equitable defense would seem tohave greater cogency where, as here, it could relate directly toa party's ability to carry its burden. Compare Bartlett v.Bartlett, 70 Ill. App. 3d 661, 664, 389 N.E.2d 15, 17 (1979)(where the court eventually rejected the defense because thedefendant admitted that he in fact had possession of the "lost"records). However, owing to the trial court's omission of thisissue from its findings of fact and conclusions of law, we cannotevaluate the merits, if any, of Rick's claim.

Finally, we question why Rick did not make his paymentsthrough the clerk of the court pursuant to the child supportpayment statute then in effect (Ill. Rev. Stat. 1985, ch. 40,par. 709(b) (now 750 ILCS 5/709(b) (West Supp. 1999))), inasmuchas this presumably would have eliminated much if not all of thedisagreement between these parties.

Throughout the marriage and for approximately ninemonths thereafter, Rick was employed by the United States Navy. The settlement agreement, as incorporated in the dissolutionjudgment, also provided:

"[Rick] agrees that he will provide medicalinsurance on [Eve] through his militarybenefits to cover all medical,hospitalization, dental[,] and opthamologyexpenses and in the event he is dischargedfrom the United States Navy, then in thatevent, [Rick] agrees to secure a like privatemedical policy for [Eve]."

At trial, Ann testified that Eve's orthodontia expensewas $3,750 and that, upon oral request, Rick refused to pay forsuch treatment.

Ann construes the quoted provision to mean that Rickwas responsible to insure or cover the cost of "all" dentalexpenses. We disagree with this construction. The provisionspecifically refers to Rick's ability to garner insurance as aNavy benefit or, as here, requires Rick to provide "like"insurance coverage for expenses arising after Rick's departurefrom the service. Ann adduced no proof at trial that orthodonticexpenses would have been covered under Rick's Navy policies orthat he failed to procure insurance affording similar coverageduring the dates of Eve's treatment. Unlike the case with thealleged child support arrearage then, Ann failed to sustain herburden of proving that Rick was obliged under the agreement toinsure or cover the expense for such treatment.

We reverse the trial court's judgment as to childsupport arrearage because the trial court erroneously allocatedthe burden of proof. We affirm the judgment of the trial courtin all other respects and remand for further proceedings notinconsistent with this opinion.

Affirmed in part and reversed in part; cause remanded.

STEIGMANN and MYERSCOUGH, JJ., concur.