                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




           Department of Healthcare & Family Services ex rel. Daniels v. Beamon,
                                2012 IL App (1st) 110541




Appellate Court            THE DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES
Caption                    ex rel. TOSCA DANIELS, Petitioner-Appellant, v. RANDELL
                           BEAMON, Respondent-Appellee.



District & No.             First District, Sixth Division
                           Docket No. 1-11-0541


Filed                      March 30, 2012


Held                       On appeal from an order for permanent child support and the denial of a
(Note: This syllabus       petition for modification of that order, the appellate court dismissed
constitutes no part of     petitioner’s appeal from the order as untimely, since the notice of appeal
the opinion of the court   was filed more than 30 days after the order was entered, despite the fact
but has been prepared      that the trial court reserved the issue of respondent’s liability for
by the Reporter of         retroactive support, and further, although the trial court properly
Decisions for the          dismissed the petition for modification of the support order pursuant to
convenience of the         section 2-615 of the Code of Civil Procedure based on the failure to state
reader.)
                           a cause of action under either section 510(a)(1) or 510(a)(2)(A) of the
                           Illinois Marriage and Dissolution of Marriage Act, the cause was
                           remanded with directions to grant petitioner leave to amend her petition
                           in a reasonable time.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-D-54755; the
Review                     Hon. Fe Fernandez, Judge, presiding.
Judgment                   Affirmed and remanded with directions.


Counsel on                 Edward X. Clinton, Jr., and Edward X. Clinton, both of Law Offices of
Appeal                     Edward X. Clinton, of Chicago, for appellant.

                           No brief filed for appellee.


Panel                      JUSTICE PALMER delivered the judgment of the court, with opinion.
                           Justices Garcia and Lampkin concurred in the judgment and opinion.



                                             OPINION

¶1           Petitioner Tosca Daniels appeals from an order of the circuit court of Cook County
        striking her “Verified Petition for Modification in Child Support” (verified petition for
        modification) pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
        5/2-615 (West 2010)), and from a permanent order for child support entered on July 9, 2010.
        On appeal, petitioner essentially contends that the circuit court entered a permanent award
        for child support which improperly deviated from the guidelines set by section 505 of the
        Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a)(1)
        (West 2010)), and then erred in striking her verified petition for modification of that order.
        Respondent Randell Beamon has not filed a brief in response; however, we may consider the
        issues raised under the principles set forth in First Capitol Mortgage Corp. v. Talandis
        Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶2           The common law record filed in this case shows that petitioner initiated paternity actions
        against respondent, alleging that he was the father of her minor children R.B. and A.B., and
        that respondent later answered that he fathered A.B. The paternity actions were consolidated,
        and on April 27, 2010, the circuit court entered an order of parentage adjudicating respondent
        the natural and biological father of A.B. The record does not contain an order of parentage
        with respect to R.B. On the same date, the court also entered a temporary order for child
        support awarding monthly support payments of $300 for R.B. and A.B. In that order, the
        court noted that respondent’s net income was “undetermined” and ordered him to bring his
        2010 pay stubs and 2009 tax return on the next court date. The court then continued the case
        for “permanent support/medical.”
¶3           On July 9, 2010, the court entered a permanent order for child support which, by
        agreement, awarded bimonthly support payments of $375 for R.B. and A.B. The record is
        silent regarding how the parties agreed on this amount of support. In the support order, the
        court noted again that respondent’s net income was “undetermined,” that it was reserving the
        issue of retroactive child support, and that the case was “off call.”

                                                 -2-
¶4       On August 31, 2010, petitioner filed a verified petition for modification seeking an
     increase in respondent’s child support obligation. Petitioner alleged that respondent was
     earning approximately $72,000 per year and that the amount awarded by the court in the
     permanent order for child support was less than 20% of respondent’s monthly income.
     Petitioner requested that the award be “substantially increased” to require monthly payments
     of $2,000.
¶5       On December 3, 2010, respondent filed a section 2-615 “Motion to Strike” the verified
     petition for modification on the basis that it was “substantially insufficient in law.”
     Respondent asserted that petitioner failed to allege or present any evidence of a substantial
     change in circumstances warranting a modification of the child support order under section
     510(a)(1) of the Marriage Act (750 ILCS 5/510(a)(1) (West 2010)), and that a modification
     was not permissible under section 510(a)(2)(A) of the Marriage Act (750 ILCS
     5/510(a)(2)(A) (West 2010)) because 36 months had not elapsed since the order was entered.
¶6       In her reply to respondent’s motion to strike, petitioner attached respondent’s 2009 W-2
     statement and provided a more detailed analysis of the claimed deviation between the child
     support payments that had been awarded and respondent’s obligation under the guidelines
     set forth in section 505 of the Marriage Act. Contrary to the initial verified petition for
     modification, petitioner claimed in her reply to the motion to strike that the appropriate
     amount of support should be 28% of respondent’s monthly income.1 On February 9, 2011,
     the court granted respondent’s motion to strike the verified petition for modification, noting
     “[t]he previous permanent, by agreement child support order[ ] entered on July 9, 2010 shall
     stand.” On February 16, 2011, petitioner filed her notice of appeal from the initial order of
     July 9, 2010, and the subsequent order of February 9, 2011, striking her petition for
     modification of child support.
¶7       Petitioner first contends that the permanent child support order entered by the court on
     July 9, 2010, was erroneous because the court failed to adhere to the guidelines set forth in
     section 505 of the Marriage Act and did not explain why the court deviated from the
     guideline amount. Before addressing the merits of this claim, we must consider, sua sponte,
     our jurisdiction to do so. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 693 (2004).
¶8       The power of an appellate court to consider the merits of a case attaches only upon
     compliance with the rules governing appeals. People v. Flowers, 208 Ill. 2d 291, 308 (2003).
     Here, petitioner claimed that she was filing her notice of appeal pursuant to Illinois Supreme
     Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008)).
     These rules pertain to appeals from final judgments and require that petitioner file notice of
     appeal within 30 days after entry of the final judgment which is the subject of this appeal. Ill.


             1
              As noted above, the record does not contain an order of parentage for R.B. However, both
     the temporary and permanent support orders were entered “by agreement” and included coverage
     for both children. While this court’s decision is based on other grounds, this inconsistency between
     the order of parentage for only one child, the support orders covering two children, and the motion
     pleadings seeking 20% and then 28% of monthly income must be addressed by the trial court upon
     remand.

                                                 -3-
       S. Ct. R. 303(a)(1) (eff. May 30, 2008).
¶9          In Deckard v. Joiner, 44 Ill. 2d 412, 417 (1970), the supreme court determined that a
       judgment in a paternity action becomes final after the circuit court enters an order of
       paternity and an order fixing the amount of support the defendant is to pay. The supreme
       court so found even though the circuit court had retained jurisdiction of the cause to enter
       new orders for support, maintenance, etc., finding that such issues of support were merely
       incidental to the other matters. Deckard, 44 Ill. 2d at 416-17. In accordance with that
       decision, this court similarly found that entry of an order of paternity and an order fixing the
       amount of child support constitutes a final order in a paternity action even where the court
       reserves collateral matters such as a request for retroactive child support expenses during
       pregnancy. Watkins v. Martin, 115 Ill. App. 3d 417, 419 (1983).
¶ 10        In this case, the circuit court entered an order of parentage on April 27, 2010, and
       permanently fixed the amount of child support respondent was to pay on July 9, 2010,
       thereby rendering a final judgment despite reserving the issue of respondent’s liability for
       retroactive support payments. Watkins, 115 Ill. App. 3d at 419. Petitioner, however, did not
       file a notice of appeal seeking review of that permanent child support order until February
       16, 2011, seven months after the judgment was entered and thus well outside the prescribed
       30-day time limit. Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). In addition, we observe that
       petitioner’s filing of a verified petition for modification after the time to appeal had passed
       did not render the permanent child support order interlocutory. Deckard, 44 Ill. 2d at 417.
       Under these circumstances, we are without jurisdiction to review the permanent child support
       order of July 9, 2010. Deckard, 44 Ill. 2d at 417.
¶ 11        Petitioner next contends that the circuit court erred in dismissing her verified petition for
       modification. She claims that she demonstrated the requisite inconsistency between the
       amount of child support ordered by the court and the amount resulting from application of
       the guidelines set forth in section 505 of the Marriage Act to warrant a modification under
       section 510(a)(2)(A) of the Marriage Act. Because this claim involves the construction and
       application of a statute, our review is de novo. Blum v. Koster, 235 Ill. 2d 21, 44 (2009).
¶ 12        The Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/16 (West 2010)) grants
       the circuit court continuing jurisdiction to modify a child support order in accordance with
       section 510 of the Marriage Act. Under section 510(a)(1), the court may modify a child
       support order upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a)(1)
       (West 2010). Under section 510(a)(2)(A), the court may modify a child support order upon
       a showing of an inconsistency of at least 20% between the amount of child support awarded
       under the existing order and the amount that would result from application of the guidelines
       set forth in section 505 of the Marriage Act. 750 ILCS 5/510(a)(2)(A) (West 2010). Section
       510(a)(2)(A) only applies, however, where a party is receiving child support enforcement
       services and when at least 36 months have elapsed since the order for child support was
       entered or last modified. 750 ILCS 5/510(a)(2)(A) (West 2010).
¶ 13        We first note that contrary to petitioner’s argument, section 2-615 motions to strike are
       appropriately utilized in child support proceedings. See McNellis v. O’Connor, 266 Ill. App.
       3d 1063 (1994). Petitioner has cited no authority, and we have found none, to support her


                                                  -4-
       position that allowing section 2-615 motions to be used in child support proceedings would
       be “extremely bad public policy.” That said, in child support proceedings, as in any case,
       motions to strike are subject to a specific procedural course of action. See McNellis v.
       O’Connor, 266 Ill. App. 3d 1063, 1068-69 (1994).
¶ 14        In this case, the circuit court entered a permanent, by agreement, child support order on
       July 9, 2010, awarding bimonthly support payments of $375 for R.B. and A.B. On August
       31, 2010, petitioner filed a verified petition for modification, alleging that those child support
       payments were less than 20% of respondent’s monthly income. Petitioner’s bare-bones
       motion, however, failed to allege whether she was proceeding under section 510(a)(1) or
       section 510(a)(2)(A) of the Marriage Act. Specifically, petitioner did not allege a substantial
       change in circumstances from the time the permanent support order was entered as required
       under section 510(a)(1). Petitioner also failed to show that she fell within the ambit of section
       510(a)(2)(A) as a party receiving child support enforcement services. Additionally,
       petitioner’s request for modification under that section was clearly premature, having been
       made less than 2 months after the permanent child support order was entered, rather than
       after the minimum 36 months required by this provision (750 ILCS 5/510(a)(2)(A) (West
       2010)). Petitioner before the trial court, and again on appeal, essentially conflates a section
       510(a)(1) and a section 510(a)(2)(A) motion by simply stating that the support order did not
       follow the guidelines. Petitioner ignores the fact that a petition for modification under section
       510(a)(2)(A) relying on the guidelines alone cannot be brought within 36 months of the date
       of the support order. At the same time, simply claiming a deviation from the guidelines alone
       is not sufficient to allege a substantial change in circumstances under section 510(a)(1), as
       to so hold would essentially vitiate the section 510(a)(2)(A) 36-month time limitation. As
       a result, the court did not err in granting respondent’s motion to strike where the petition was
       clearly insufficient to state a cause of action under either section. However, given
       respondent’s decision to proceed by way of a section 2-615 motion to strike, our analysis
       cannot end there.
¶ 15        A section 2-615 motion to strike challenges the legal sufficiency of a pleading by alleging
       defects on the face of the pleading. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429
       (2006). In reviewing the sufficiency of a pleading, we accept as true all well-pled facts and
       all reasonable inferences that may be drawn from those facts and we construe the allegations
       in the pleading in the light most favorable to the plaintiff. Marshall, 222 Ill. 2d at 429. “ ‘[A]
       cause of action should not be dismissed on the pleadings unless it appears that no set of facts
       can be proved which will entitle the pleader to relief, and then only if it is apparent that even
       after amendment, if leave to amend is sought, no cause of action can be stated.’ ” Cordts v.
       Chicago Tribune Co., 369 Ill. App. 3d 601, 613 (2006) (quoting Dinn Oil Co. v. Hanover
       Insurance Co., 87 Ill. App. 2d 206, 211-12 (1967)). We review an order granting or denying
       a section 2-615 motion to strike de novo. Marshall, 222 Ill. 2d at 429.
¶ 16        Here, although we agree with the court’s decision to grant respondent’s section 2-615
       motion to strike, we do not approve of the procedure that was followed in this case. See
       McNellis, 266 Ill. App. 3d at 1070. We believe that in ruling on respondent’s motion to
       strike, the trial court “should first have addressed the sufficiency of the allegations of the
       petition, and if they were not sufficient, the petitioner should have been given the opportunity

                                                  -5-
       to correct the insufficiency.” McNellis, 266 Ill. App. 3d at 1070; Lee v. Chicago Transit
       Authority, 152 Ill. 2d 432, 467 (1992) (“In Illinois, courts are encouraged to freely and
       liberally allow the amendment of pleadings.”). The record before us does not show that
       petitioner sought leave to amend or that she was afforded the opportunity to do so by the
       court. See Cordts, 369 Ill. App. 3d at 612-13 (had respondent properly challenged the
       sufficiency of the petition through a section 2-615 motion, petitioner would have been
       entitled to an opportunity for leave to amend).
¶ 17       In McNellis, the petitioner filed a petition seeking to modify a child support agreement.
       The petitioner alleged that the respondent misrepresented his annual income and that no
       discovery of the respondent’s assets or income was done before the agreement was entered
       into by the parties. McNellis, 266 Ill. App. 3d at 1065. The respondent filed a section 2-615
       motion to strike. McNellis, 266 Ill. App. 3d at 1065. At a hearing on the motion, the parties
       briefly recounted to the court how they entered into the support agreement. McNellis, 266 Ill.
       App. 3d at 1066-67. The circuit court granted the respondent’s section 2-615 motion to strike
       and dismissed the petition. McNellis, 266 Ill. App. 3d at 1065. The petitioner appealed and
       we held that the trial court should have afforded the petitioner the opportunity to correct the
       legal insufficiencies in the petition before dismissing it. McNellis, 266 Ill. App. 3d at 1070.
       In doing so, we noted that “if the allegations of a change in the respondent’s financial
       condition or the allegation of a misrepresentation of the respondent’s condition were not
       specific enough, the petitioner should have been given the opportunity to amend the
       petition.” McNellis, 266 Ill. App. 3d at 1069.
¶ 18       Having found that the trial court properly granted respondent’s motion to strike, we must
       address whether the petition should have been dismissed with prejudice. Blazyk v. Daman
       Express, Inc., 406 Ill. App. 3d 203, 209 (2010). We observe that although the trial court’s
       order does not specifically state it was entered with prejudice, it notes that “the previous
       permanent, by agreement child support order entered on July 9, 2010 shall stand.” We follow
       the rule that an initial pleading should not be dismissed with prejudice unless it is clearly
       apparent that no set of facts can be proven that will entitle the petitioner to recover. Daman
       Express, 406 Ill. App. 3d at 209 (citing Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488
       (1994)). Here, even more than in McNellis, the record is silent as to how the parties agreed
       on the now disputed amount of support and what representations were made by respondent
       so that we may consider whether there was a substantial change in circumstances since the
       entry of the permanent child support order. Given this record, we have no basis to confidently
       say that it is clear that petitioner, even after amendment, would not be able to state a claim
       for relief. Daman Express, 406 Ill. App. 3d at 209. We hold that in response to these
       pleadings, the trial court should have granted the motion to strike pursuant to section 2-615
       of the Code but also should have granted leave to amend within a reasonable period of time.
¶ 19       For the reasons stated, we affirm the trial court’s order granting respondent’s section 2-
       615 motion to strike and remand the matter with directions that the trial court afford
       petitioner the opportunity to amend her petition.

¶ 20      Affirmed and remanded with directions.


                                                -6-
