In the Spring of 2014, my law firm was retained by a father who was interested in possibly terminating his child support obligation . . . for his 31 year-old child.  Terminating the support obligation, of course, was easy enough.  Done.   What about the possibility of collecting all that overpayment, though?  This guy overpaid by more than 13 years!

First, a word about when child support terminates:  It used to be, under the common law, that courts simply lost jurisdiction when the kids reached 18 — so support orders could not be enforced.  Then, in 1970 the appellate court resolved an emancipation case by looking to Illinois’ probate law for definitional guidance and said that “males become of age when they are 21 and females become of age when they are 18 years of age.”  Wilson v. Wilson, 122 Ill. App. 2d 142, 257 N.E.2d 810 (2d Dist., 1970).  That was the rule until 1977:  21 for boys and 18 for girls.  Waldron v. Waldron, 13 Ill.App.3d 964, 301 N.E.2d 167 (5th Dist., 1973).  In 1977 the divorce law was amended to stop child support at 18 for boys and girls.  Since 2003, Illinois’ child support law has defined “child” (for purposes of child support) to include “any child under age 19 who is still attending high school.” (P.A. 93-876).

Today, child support orders are supposed to include a termination date.  If they do, the employer stops withholding on the specified date and that’s the end of it.  A lot of child support litigation, however, is handled by pro se litigants who don’t know to include a termination date.  In those cases, the employer needs a court order terminating support.  That’s what happened to the client at issue at the top of this post.  He had a support order with no termination date.  So, the employer followed the language of the order and just kept withholding income long after the child’s emancipation.

There is no statute that determines whether an overpayment of child support must be reimbursed.  There are, however, a few appellate case that can shed some light:

The seminal case on reimbursement of child support overpayment is Harner v. Harner, 105 Ill.App.3d 430, 434 N.E.2d 465, (1st Dist., 1982).  Joan and William Harner had four kids and divorced in 1974.  William paid support and was also ordered to pay extraordinary medical expenses.  William unilaterally reduced his support shortly after the oldest child emancipated, as he was allowed to do under the terms of the Judgment.  A word of warning, here:  back in William’s and Joan’s time, parties could agree to allow unilateral reductions in support upon a child’s emancipation.  That’s no longer allowed:  only the court may modify a support order, even for something as simple and obvious as emancipation.   For an explanation, see my article:  Child Support / Educational Expenses Termination – Self Emancipation).  William’s delay before implementing the unilateral reduction resulted in a small overpayment of child support.  When the second child emancipated, William forgot that he could unilaterally reduce his obligation and just kept on paying the old amount of support..  By the time he realized his mistake, he had overpaid support by some $3,360.

Eventually, Joan wanted William to reimburse her for some extraordinary medical expenses she had incurred.  William refused and insisted that his overpayment of support be applied against his obligation for the medical expenses.  They ended up in court.  The trial court agreed with William.  Joan appealed.  The appellate court noted that it was a case of first impression and, citing cases from Indiana, Missouri, New York, and Louisiana, said:

“[T]he general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree.  This is true even where, as here, the payments are made under the mistaken belief that they are legally required.  (citations omitted)  The policy underlying this rule is to prevent the supporting parent from unilaterally modifying the support decree and thereby affecting the expectations of the custodial parent as to support payments.  We find merit to this rule and therefore adopt it.”

Harner v. Harner, 105 Ill.App.3d 430, 433, 434 N.E.2d 465, (1st Dist., 1982)

A simple situation begat a simple rule.  Then, along came In re: Marriage of Tollison, 566 N.E.2d 652, 208 Ill.App.3d 17, 153 Ill.Dec. 2 (1991, 5th Dist.).  Deloris and John Tollison were divorced in April, 1984.  Delores had filed in November, 1983 and was awarded $500 / month in temporary support for the five minor children (eight kids, total).  A few months later, while the case was still going on, John sought a reduction in his obligation as three of the minor children were then living with him.  That’s how the case concluded:  three with him, two with her, and he was ordered to pay $25 / month in child support and $213.76 / month in maintenance.

Within a year they were back in court with Deloris complaining that John wasn’t paying as ordered — which, he wasn’t.  A new order was entered 23 May 1985 to resolve the arrearages.

Four years later, John went back to court asking that the numbers be crunched, again, because he thought that by then, he had satisfied the arrearages.  Deloris countered with a request to increase support and a claim for unpaid medical expenses.  The court concluded that, in fact, John had overpaid under the 23 May 1985 order.  The numbers were fairly complicated so the court reasoned in the aggregate:  it concluded that since 23 May 1985 John’s obligations for support, maintenance, and the arrearage amounted to $23,115.92 and he had paid (under the withholding order) $27,810.75.  So, there WAS an overpayment . . . but what to do about it?  The court gave the lawyers a week to brief the issue.  The lawyers came up with nothing for the trial court– no apparently they didn’t even find the Harner rule.  With that paucity of authority, the court ruled that John should receive no reimbursement.  John appealed.

The appellate court said that issues of child support overpayment fall into two categories:  voluntary (the obligor writes a check) and involuntary (withholding orders).  The court noted the general rule laid down in Harner that generally speaking, no reimbursement is warranted for the voluntary overpayment of child support.  The Tollison court pointed out, however, that the payments at issue weren’t voluntary, like in Harner (there had not been a withholding order applied against Mr. Harner’s wages — he simply wrote a check to Joan once a month).  Moreover, under the 23 May 1985 order, John Tollison’s wages were subject to a withholding order that paid a little child support, a little arrearage, and a lot of maintenance.

The Tollison court said there could be plenty of exceptions to the Harner rule, so long as “. . . the equities of the circumstances so demand and provided such allowance will not work a hardship.”   Well, if exceptions can be made under the Harner rule for voluntary payments (like, where William wrote Joan checks), certainly there could be an exception in the case of a withholding order that overstayed its term.

“John Tollison paid more through the deduction order than he was obligated to pay . . . .  one person should not profit at the expense of another because of a wrong or a mistake.  . . . fundamental fairness demands that . . . credit be given.”

In re: Marriage of Tollison, 566 N.E.2d 652, 208 Ill.App.3d 17, 153 Ill.Dec. 2 (1991, 5th Dist.).

So, these are the rules:  if an overpayment is voluntary and for child support, there can be no reimbursement.

If a payment is pursuant to a withholding order and for child support, the might be a reimbursement.

If a payment is for maintenance, whether “voluntary” or pursuant to a withholding order, there might be a reimbursement.

Back to the obligor at the top of this post:  His payments were for child support and they were pursuant to a withholding order.  He would seem to qualify under the Harner rule.   But . . . for thirteen years.?  We’ll see what happens