Docket No. 109151.
THE STATE OF ILLINOIS
THE ILLINOIS DEPARTMENT OF HEALTHCARE AND
FAMILY SERVICES ex rel. MARGARET WISZOWATY, n/k/a
Margaret Mihaila, Appellant, v. MARK WISZOWATY, Appellee.
Opinion filed January 21, 2011.
JUSTICE BURKE delivered the judgment of the court, with
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Theis concurred in the judgment and opinion.
At issue in this appeal is whether delinquent child support
payments in Illinois began to bear mandatory interest in 1987 with the
passage of Public Act 85–2 (eff. May 1, 1987). The appellate court
concluded that they did not. 394 Ill. App. 3d 49. For the reasons that
follow, we reverse the judgment of the appellate court.
Mark Wiszowaty and Margaret Mihaila were married and had one
child. The couple divorced in 1991, shortly before their child’s second
birthday. Pursuant to the judgment for dissolution of marriage, Mark
was ordered to pay $48 per week in child support to Margaret
through the clerk of the circuit court of Cook County, until the child’s
Years later, in 2005, Mark filed a petition for declaratory
judgment, asking the circuit court of Cook County to declare and
adjust child support payments that were in arrears. On January 25,
2006, the Illinois Department of Healthcare and Family Services
(Department) filed a motion to intervene on Margaret’s behalf and a
petition for rule to show cause as to why Mark should not be held in
contempt of court for failing to pay child support. According to the
Department, Mark had paid some child support in 1991 but then paid
no support from 1992 through 2005. The Department asked the court,
among other things, to enter a judgment for the arrearage including
interest accruing from the first missed payment in 1991.
Mark conceded the arrearage and that interest on the unpaid
support payments became mandatory when certain amendments were
made to the Illinois Marriage and Dissolution of Marriage Act
(Marriage Act) (750 ILCS 5/101 et seq. (West 2000)) in 2000.
However, Mark argued that, prior to that date, the imposition of
interest was left to the discretion of the circuit court and that the
circumstances of his case did not warrant imposing interest.
The Department, however, contended that the 2000 legislation
was not the proper starting point for calculating mandatory interest.
Instead, according to the Department, interest became mandatory in
1987, when the General Assembly enacted Public Act 85–2 (eff. May
1, 1987), and changed the law to provide that each unpaid installment
of child support was a “judgment” by operation of law and that child
support judgments “shall bear interest.”
Relying on In re Marriage of Steinberg, 302 Ill. App. 3d 845
(1998), the circuit court rejected the Department’s argument. The
court also rejected the Department’s alternative request for
discretionary interest prior to 2000. The circuit court entered
judgment against Mark for the arrearage in the amount of $52,889.41,
but this total included post-2000 interest only. The appellate court
affirmed, holding that interest was not made mandatory in 1987. 394
Ill. App. 3d 49. The appellate court recognized that a contrary result
had been reached in Burwell v. Burwell, 324 Ill. App. 3d 206 (2001),
but the appellate court determined that Burwell had not adequately
considered the relevant statutes in their historical context and had
“reached a conclusion that is not well-founded.” 394 Ill. App. 3d at
We granted the Department’s petition for leave to appeal. Ill. S.
Ct. R. 315 (eff. Oct. 15, 2007). We allowed Scott Wagner, pro se, to
file an amicus curiae brief on Mark’s behalf.
In 1987, with the passage of Public Act 85–2 (eff. May 1, 1987),
the General Assembly amended the Marriage Act by adding the
“Any new or existing support order entered by the court under
this Section shall be deemed to be a series of judgments
against the person obligated to pay support thereunder, each
such judgment to be in the amount of each payment or
installment of support and each such judgment to be deemed
entered as of the date of the corresponding payment or
installment becomes due under the terms of the support order.
Each such judgment shall have the full force, effect and
attributes of any other judgment of this State, including the
ability to be enforced.” (Emphases added.) Ill. Rev. Stat.
1987, ch. 40, par. 505(c) (currently codified as 750 ILCS
5/505(d) (West 2008)).
This change was made in response to federal legislation which
required states seeking certain federal funds to treat unpaid support
payments as judgments as a condition of receiving those funds. See 42
U.S.C. §666(a)(9)(A) (2006); Steinberg, 302 Ill. App. 3d 845; In re
Marriage of Kaufman, 299 Ill. App. 3d 508 (1998); Marilyn R. Smith,
Child Support at Home and Abroad: Road to the Hague, 43 Fam.
L.Q. 37, 46 (Spring 2009) (noting that prior to the federal legislation
interstate enforcement of past-due child support payments was
difficult because a proceeding was necessary to reduce the arrearage
to an actual money judgment that could be enforced in other states).
Public Act 85–2 also amended section 12–109 of the Code of Civil
Procedure (Code) to provide:
“Interest on judgments. Every judgment except those arising
by operation of law from child support orders shall bear
interest thereon as provided in Section 2–1303. Every
judgment arising by operation of law from a child support
order shall bear interest as provided in Section 2–1303
commencing 30 days from the effective date of each
judgment.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110,
par. 12–109 (currently codified as 735 ILCS 5/12–109 (West
Under section 2–1303 of the Code in 1987, and still today,
“[j]udgments recovered in any court shall draw interest at the rate of
9% per annum from the date of the judgment until satisfied.”
(Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2–1303
(currently codified as 735 ILCS 5/2–1303 (West 2008)).
Thus, in Public Act 85–2, the legislature stated that unpaid child
support payments “shall” be deemed judgments and that these
judgments “shall bear interest” at the same rate as all other judgments.
The use of the word “shall” generally indicates a mandatory
requirement. Holly v. Montes, 231 Ill. 2d 153, 160 (2008).
Accordingly, under the plain and ordinary language of the foregoing
statutory amendments, past-due child support payments began to bear
mandatory interest on May 1, 1987.
Despite the clear language of the statutory amendments, the
appellate court concluded that interest was not made mandatory.
According to the appellate court, this court’s decision in Finley v.
Finley, 81 Ill. 2d 317 (1980), established a general rule that
dissolution actions are exempt from general statutes that establish
interest requirements and that “the imposition of interest on child
support judgments is a matter within the trial court’s discretion.” 394
Ill. App. 3d at 51. From this premise, the court held that the
legislature had to be “clear and explicit if it had intended to change”
that rule in 1987. Id. at 60. The appellate court found no such
expression of intent in the passage of Public Act 85–2. With respect
to the addition of section 505(d) of the Marriage Act, the appellate
court concluded that it said nothing about mandatory and
discretionary interest and therefore was not relevant. Id. at 59. With
respect to section 12–109, the appellate court concluded that the
legislative intent in amending the section was to add a 30-day grace
period, not to change the rule that the award of interest on past-due
child support is discretionary. Id. at 60. Accordingly, the appellate
court rejected the proposition that interest on unpaid child support
payment had been mandatory since 1987. We disagree.
As the Department notes, Finley decided, inter alia, whether a
custodial parent was entitled to interest on unpaid child support. At
that time, in 1980, unpaid child support payments were not
characterized as judgments. Indeed, as noted above, the reason section
505(d) was added to the Marriage Act was to make clear that each
unpaid support payment was to be treated as a judgment. Further, in
1980 there was no statute referencing interest on unpaid child support
payments. Only a general statutory provision on interest for judgments
existed. See Ill. Rev. Stat. 1979, ch. 74, par. 3 (“Judgments recovered
before any court shall draw interest at the rate of 9% per annum from
the date of the judgment until satisfied”).
Since periodic child support payments were not judgments that fell
within the terms of the general interest statute, the question at issue
was whether any basis existed for awarding interest on those
payments. This court in Finley looked at the nature of the dissolution
proceeding, likened it to a chancery proceeding, and found that
interest on support payments lay within the discretion of the court and
would be allowed if “warranted by equitable considerations.” Finley,
81 Ill. 2d at 332. In so holding, the court was relying on a principle of
law that we have recently explained:
“[I]t is well settled that interest is not recoverable absent a
statute or agreement providing for it. [Citation.] An exception
to this rule exists in equity. In chancery proceedings, the
allowance of interest lies within the sound discretion of the
judge and is allowed where warranted by equitable
considerations and disallowed if such an award would not
comport with justice and equity.” (Internal quotation marks
and emphasis omitted.) Tri-G, Inc. v. Burke, Bosselman &
Weaver, 222 Ill. 2d 218, 257 (2006).
Finley thus stands for the proposition that, where there are no
controlling statutes defining unpaid support payments as judgments
or providing for interest, interest may be awarded on those payments
as a discretionary matter because the divorce proceeding may be
likened to a chancery proceeding. But Finley does not stand for the
proposition that interest is left to the discretion of the circuit court
even when governing statutes have plainly stated otherwise. Indeed,
such a reading of Finley would run counter to long-standing law:
“ ‘We do not know of any power existing in a court of equity
to dispense with the plain requirements of a statute; it has been
always disclaimed, and the real or supposed hardship of no
case can justify a court in so doing. When a statute has
prescribed a plain rule, free from doubt and ambiguity, it is as
well usurpation in a court of equity as in a court of law, to
adjudge against it; and for a court of equity to relieve against
its provisions, is the same as to repeal it.’ ” First Federal
Savings & Loan Ass’n of Chicago v. Walker, 91 Ill. 2d 218,
227 (1982) (quoting Stone v. Gardner, 20 Ill. 304, 309
The General Assembly changed the law in 1987 by providing that
each unpaid child support installment is an actual “judgment” that
arises by operation of law, and that each such judgment “shall bear
interest.” Under the plain language of these statutory amendments,
interest payments on child support payments became mandatory
effective May, 1 1987. This court’s decision in Finley does not
compel a different result.
For the foregoing reasons, the judgments of the appellate and
circuit courts are reversed. The cause is remanded to the circuit court
for further proceedings consistent with this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
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