Earles v. Earles
Case Date: 09/02/2004
Court: 3rd District Appellate
Docket No: 3-03-0123 Rel
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No. 3--03--0123 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2004
JUSTICE SCHMIDT delivered the opinion of the court: Plaintiff, Carla Earles, filed a motion to increase childsupport and a petition for rule to show cause relating to childsupport arrearages against her former husband, defendant, TracyEarles. Tracy then requested a hearing on a petition to modifychild support that had been previously filed. On July 9, 2002,the circuit court of Kankakee County entered an order grantingTracy's petition to modify child support and denied Carla'spetition to increase child support. The same order found Tracyin contempt for willful failure to pay child support andcontinued the case for sentencing on Tracy's contempt. Asentencing hearing was held on July 29, 2002, but a written orderon the contempt citation was not issued until August 28, 2002. Carla, within 30 days of the August 28 order, filed a motion toreconsider the July 9 order. Tracy filed a motion to strike anddismiss Carla's motion for reconsideration claiming it wasuntimely. The circuit court found that Carla's motion toreconsider was untimely and, therefore, it lacked jurisdiction tomodify the July 9, 2002, order. Carla appeals. BACKGROUND Carla and Tracy divorced on April 7, 1992. The judgment ofdissolution provided that Carla would have custody of their twominor children. It further provided for Tracy to pay $200 inchild support per week. After losing his job in 1997, Tracy was unable to meet hischild support obligation. In February 1998, Tracy filed a pro sepetition to modify child support requesting that the court reducehis payment to $212 every other week. No order was entered onthis request for modification. Furthermore, Carla was neverserved with notice of the petition. Eventually, Tracy reducedhis child support payments from $200 per week to $210 every otherweek. The parties dispute whether this reduction was unilateralor consented to by Carla in a telephone conversation. On November 30, 2001, Carla filed a petition for rule toshow cause why Tracy should not be held in contempt for failureto pay child support at the rate of $200 per week. Carla alsofiled a motion to increase child support. The petition for rule to show cause alleged that Tracy hadfailed to pay child support as ordered by the judgment ofdissolution and was $21,500 in arrears. The motion to increasechild support alleged that there had been a substantial change incircumstances in Tracy's income and an increase was necessary tobring his payments to 25% of his higher income. On January 14, 2002, Carla received notice of Tracy'srenewal of his 1998 petition for modification. Carla filed amotion to strike the 1998 petition on January 24, 2002. After ahearing, the court entered a written order on July 9, 2002,stating: "A. That Judgment is granted in favor of Plaintiff and against Defendant in the amount of $7,530.24, plus interest, B. That Defendant is in contempt of this Court for the willful failure to pay child support in the amount of $7,530.24, C. That Defendant's Petition to Modify is allowed, and Defendant's child support payment is modified to $168.00 beginning April 16, 2002, D. That Plaintiff's Petition to Increase is denied, E. That this case is continued for sentencing on the finding of Defendant's contempt to July 29, 2002 at 10:30 a.m." After the July 29, 2002, sentencing hearing, the court tookthe matter under advisement and ultimately issued a written orderconcerning the petition for rule to show cause on August 28,2002. The court ordered Tracy to pay Carla $1,250 within sevendays, pay the arrearage of $7,530.24 at $200 per month beginningSeptember 2002, interest, and attorney fees within 30 days. On September 24, 2002, Carla filed a motion to reconsiderthe substantive rulings of the July 9, 2002, order. Three dayslater, Tracy filed a motion to strike and dismiss Carla's motionto reconsider. He alleged that Carla had failed to file themotion within 30 days of the issuance of the July 9, 2002, order. The court denied Carla's motion to reconsider on January 6,2003. The court issued a written disposition explaining itsJanuary 6 ruling which stated that the July 9, 2002, order"completely and finally disposed of all issues relating to thepetitions to modify child support filed by each of the parties."The court concluded that it had no basis to review the July 9,2002, order where the motion to reconsider was not filed within30 days. Carla appeals claiming that since the July 9 order onlydisposes of two issues (the petitions to modify support) andreserves ruling on the issue of contempt, there was no final andappealable order until the August 28 ruling. Therefore, sheargues, her motion to reconsider was timely filed on September24, 2002, and the trial court erred by finding it did not havejurisdiction to modify its July 9, 2002, order. STANDARD OF REVIEW The question presented in this appeal is one of law. Wereview questions of law de novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998). ANALYSIS Generally, an order must dispose of all issues involved inan action to be final and appealable. In re Marriage of Berto,344 Ill. App. 3d 705, 710 (2003). It has long been held thatcontempt proceedings are original special proceedings which arecollateral to, and independent of, the underlying claim. Peoplev. Shukovsky, 128 Ill. 2d 210, 219 (1988); People ex rel. Scottv. Silverstein, 87 Ill. 2d 167, 172 (1981); People ex rel.General Motors Corp. v. Bua, 37 Ill. 2d 180, 191 (1967). Whendiscussing this principle, the supreme court has "recognized thatordinarily an adjudication in a contempt proceeding is final andappealable because it is an original special proceeding,collateral to, and independent of, the case in which the contemptarises where the imposition of the sanction does not directlyaffect the outcome of the principal action," even though such anadjudication does not dispose of all issues in the litigation. (Emphasis added.) Kazubowski v. Kazubowski, 45 Ill. 2d 405, 414-15, 259 N.E.2d 282, 289 (1970). Therefore, by finding defendant in contempt, the July 9,2002, order in the case at bar started a special proceeding thatwas outside of, and collateral to, the original proceedings onthe petitions to modify and increase child support. Had thetrial judge imposed a sanction on defendant in that order, itwould have been immediately appealable regardless of whether itdisposed of the petitions to modify and increase child support. Logical consistency dictates that the converse also be true,i.e., if the order disposes of the substantive issues, then it isfinal and immediately appealable regardless of whether itconcluded the collateral contempt proceeding. Since the July 9 order "completely and finally disposed ofall issues related to the petition to modify child support" asnoted by the trial court, and the unresolved contempt proceedingwas collateral to, and independent of, the underlying claim, theorder resolving the petitions to modify child support was finaland appealable notwithstanding the unresolved contemptproceeding. The appellant failed to file a postjudgment motion within 30days of the July 9, 2002, order. Therefore, the trial court lostjurisdiction to consider a motion attacking the order with theexception of those portions relating to the contempt proceedings. CONCLUSION For the foregoing reasons, the ruling of the circuit courtof Kankakee County is affirmed. Affirmed. BARRY and McDADE, JJ., concur. |
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