# In Re Marriage of Henry

> Illinois Supreme Court · October 21, 1993 · 156 Ill. 2d 541

URL: https://www.frixlaw.com/law-library/cases/9717365

## Case

- **Full name:** In Re MARRIAGE OF CZARIST HENRY and JOSEPH HENRY, Appellee (The People of the State of Illinois Ex Rel. the Department of Public Aid, Appellant)
- **Court:** Illinois Supreme Court
- **Decided:** October 21, 1993
- **Citations:** 156 Ill. 2d 541; 190 Ill. Dec. 773; 622 N.E.2d 803; 34 A.L.R. 5th 833; 1993 Ill. LEXIS 90
- **Precedential status:** Published
- **Opinion:** Dissent by Heiple
- **Judges:** Nickels, Harrison, Heiple
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9717365

## How later opinions describe it (automated extraction)

- stating that “social security dependent disability benefits are earned by the noncustodial parent ... paid at least in part with contributions from the noncustodial’s own earnings”

## Opinion text

JUSTICE HEIPLE, dissenting:
Joseph Henry, divorced in 1981, was under a court order to pay $50 per week in child support. He was delinquent. By 1987, his arrearages totaled nearly $10,000. In October of 1987, Joseph was determined to be disabled by the Social Security Administration and began to receive Social Security disability checks. His dependent child also began to receive a dependent’s Social Security disability allowance in the amount of $421 per month. Later, in February of 1989, Joseph wrote to the trial court and requested that his child support order be modified. At that time, his arrearages exceeded $13,000.
The decision announced today establishes the principle that Joseph shall receive full credit ab initio for all Social Security payments made to his child in satisfaction of both his accumulated arrearages and his current support obligation without any necessity to obtain a modification of the child support order. This is new law for Illinois. It is also unfortunate. It amounts to a sub silentio and retroactive modification of a child support order, previously deemed to be impermissible. See In re Estate of Nakaerts (1982), 106 Ill. App. 3d 166 ; Chase v. Chase (1968), 74 Wash. 2d 253 , 444 P.2d 145 .
The law has always been that a child support order could be modified upon application to the court when changed circumstances warranted a modification. That requirement was not and is not a serious or burdensome obligation to impose upon the parties. In the instant case, Joseph could have applied for a modification immediately upon the occurrence of his disability. He did not. Rather, he delayed for approximately 16 months before requesting a modification.
Adjustments such as this now have statewide application. They will take place automatically and silently. They will apply without any reference to changed circumstances either of the parent or the children. The trial court will not be advised. Confusion, uncertainty and misunderstandings will result. What other credits will apply to discharge child support obligations? Perhaps creative lawyers will tell us. If Joseph had purchased and given a lottery ticket to his child which came up a winner, would that discharge his delinquent obligations? Also ignored in this case is the precept that child support payments, though for the support of the child, belong to the custodial parent, not the child.
The legalisms and creative linguistics that were applied in this case to explain and justify what is presumably deemed to be an equitable result will have unforeseen and unfortunate results that will resound into the future. For the reasons given, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717365. Public record. Not legal advice.