We have reviewed the case law and found few cases that involve the issue presented. A similar factual situation was present in Wadler v. Wadler (1945), 325 Ill. App. 83, 59 N.E.2d 505. The parties in Wadler were divorced in 1930 and the decree provided that the husband pay $25 a week for alimony and the support and maintenance of the two minor children, whose custody was awarded to the wife. The wife filed a petition for rule to show cause in 1936 because the husband had failed to make the payments for several years.
The party for whose benefit an alimony order has been entered has a vested right thereto and past due instalments of alimony cannot be modified by any subsequent order of the court which originally entered the order. Stewart v. Stewart, 1 Ill. App.2d 283, 117 N.E.2d 579; Bush v. Bush, 316 Ill. App. 295, 44 N.E.2d 767; Wadler v. Wadler, 325 Ill. App. 83, 59 N.E.2d 505; Banck v. Banck, 322 Ill. App. 369, 54 N.E.2d 577; Shuff v. Fulte, 344 Ill. App. 157, 100 N.E.2d 502; Adler v. Adler, 373 Ill. 361, 26 N.E.2d 504; Hallett v. Hallett, 10 Ill. App.2d 513, 135 N.E.2d 224. Past due instalments of alimony and support money are a vested right, and the court has no authority to modify them in any particular, either as to amount or time of payment. Shuff v. Fulte, 344 Ill. App. 157, 100 N.E.2d 502. If there are changed conditions, a petition to alter the future alimony or support money payments, if presented, might be allowed. Nevertheless, past due alimony or support money is vested and cannot be taken away. Stewart v. Stewart, 1 Ill. App.2d 283, 117 N.E.2d 579. While the petitioner in this cause has not asked for interest on the arrearage, if she had so asked, she would have been entitled to interest on the monthly instalments after failure to pay.
She relies on several Illinois decisions to the effect that a decree directing the payment of alimony is a money judgment which, if unpaid, draws interest from the date each instalment is due, and if payment is resisted, the divorced wife is entitled to recover counsel fees and all expenses of the suit to enforce. See, for example, Wadler v. Wadler, 325 Ill. App. 83, 59 N.E.2d 505, for a very good discussion of the Illinois cases on the subject. That is undoubtedly true in most cases, when resistance is wilful and deliberate, and no sound reason exists for refusal to pay.
Those cases wherein the allowance of interest was held to be within the sound discretion of the divorce court include Sutton v. Leib (7th Cir. 1952), 199 F.2d 163 (applying Illinois law), Matzen v. Matzen (1979), 69 Ill. App.3d 69, In re Estate of Neirinck (1978), 62 Ill. App.3d 189, Atwater v. Atwater (1974), 18 Ill. App.3d 202, and Anderson v. Anderson (1964), 48 Ill. App.2d 140. Other decisions hold that a divorce decree is a money decree which draws interest until satisfied. Ellingwood v. Ellingwood (1975), 25 Ill. App.3d 587; Neeland v. Neeland (1974), 17 Ill. App.3d 803; Gregory v. Gregory (1964), 52 Ill. App.2d 262; Shuff v. Fulte (1951), 344 Ill. App. 157; Wadler v. Wadler (1945), 325 Ill. App. 83. Plaintiff relies principally on the case of Ellingwood v. Ellingwood (1975), 25 Ill. App.3d 587.
Huellmantel v. Huellmantel, 124 Cal. 583, 589. Wadler v. Wadler, 325 Ill. App. 83, 90. Winemiller v. Winemiller, 114 Ind. 540, 542. Bickle v. Bickle, 196 Minn. 392, 394-395.
Counsel for the husband argue, without citing any supporting authority, that there is no basis for the allowance of interest on the arrears. The original decree, in which the husband was directed to make the stated payments, was a decree for the payment of money, and such a judgment draws interest at the statutory rate if not paid when due. Wadler v. Wadler, 325 Ill. App. 83, 59 N.E.2d 505; Harding v. Harding, 180 Ill. 592, 54 N.E. 604; Kaifer v. Kaifer, 286 Ill. App. 433, 3 N.E.2d 886. The case of Lowell, Executrix v. Arnett, 104 Colo. 343, 90 P.2d 957, was one in which the defaulting husband died, and claim was filed against his estate by the wife for the balance due her for support money based solely on the decree in divorce.
See, e.g., In re Marriage of Kramer, 253 Ill. App. 3d 923, 927 (1993); People ex rel. Wray v. Brassard, 226 Ill. App. 3d 1007, 1013-14 (1992); In re Marriage of Yakubec, 154 Ill. App. 3d 540, 544 (1987); Wadler v. Wadler, 325 Ill. App. 83, 93 (1945). We observe, however, that this case law was promulgated prior to the 1997 amendment to section 12-108(a), which allows child support judgments to be enforced at any time.
Conversely, other appellate court decisions had held that interest was recoverable on dissolution judgments because they too were money judgments. See Ellingwood v. Ellingwood, 25 Ill. App.3d 587 (1975); Neeland v. Neeland, 17 Ill. App.3d 803 (1974); Gregory v. Gregory, 52 Ill. App.2d 262 (1964); Shuff v. Fulte, 344 Ill. App. 157 (1951); Wadler v. Wadler, 325 Ill. App. 83 (1945). After recognizing the split and analyzing other supreme court cases, the Illinois Supreme Court stated:
(1978), 67 Ill. App.3d 398, 400, 384 N.E.2d 938, 939) and that the accrual of interest cannot be limited ( In re Marriage of Passiales (1986), 144 Ill. App.3d 629, 640, 494 N.E.2d 541, 550). The supreme court in Finley v. Finley (1980), 81 Ill.2d 317, 410 N.E.2d 12, however, while noting a split of authority on the general issue of whether allowance of interest on a judgment in a divorce proceeding is mandatory or discretionary (compare Sutton v. Leib (7th Cir. 1952), 199 F.2d 163; Matzen v. Matzen (1979), 69 Ill. App.3d 69, 387 N.E.2d 14; In re Estate of Neirinck (1978), 62 Ill. App.3d 189, 379 N.E.2d 356; Atwater v. Atwater (1974), 18 Ill. App.3d 202, 309 N.E.2d 632 (cases holding the allowance of interest to be discretionary), with Ellingwood v. Ellingwood (1975), 25 Ill. App.3d 587, 323 N.E.2d 571; Neeland v. Neeland (1974), 17 Ill. App.3d 803, 308 N.E.2d 651; Gregory v. Gregory (1964), 52 Ill. App.2d 262, 202 N.E.2d 139; Shuff v. Fulte (1951), 344 Ill. App. 157, 100 N.E.2d 502; Wadler v. Wadler (1945), 325 Ill. App. 83, 59 N.E.2d 505 (cases holding the award of interest to be mandatory)), held that the allowance of interest on child support arrearages is not mandatory, but within the sound discretion of the circuit court. We find that Finley is inapposite to the case at bar.
In several other states where one spouse has sought to collect alimony or child support awarded under a prior divorce decree, the courts have applied the statute of limitations applicable to judgments. Wadler v. Wadler, 325 Ill. App. 83, 59 N.E.2d 505 (1945); Carpenter v. Metropolitan Trust Co., 327 Ill. App.? 220, 63 N.E.2d 658 (1945); Marte v. Marte, 45 N.Y.S.2d 174 (1943). Also, see 70 A.L.R.2d 1250, 1255, Annot. (1960).