In re Marriage of Verstreater

Case Date: 04/02/2003
Court: 5th District Appellate
Docket No: 5-01-0540 Rel

                    NOTICE
Decision filed 04/02/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

 

NO. 5-01-0540

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


In re MARRIAGE OF
GAIL VERSTREATER, n/k/a GAIL ROACH,

     Petitioner-Appellee,

and

TED VERSTREATER,

     Respondent-Appellant

(The Department of Public Aid,

     Intervening Petitioner-Appellee).

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Appeal from the
Circuit Court of
Montgomery County.


No. 90-D-26





Hon. Dennis E. Middendorff and
Hon. Michael R. Weber,
Judges, presiding.

JUSTICE KUEHN delivered the opinion of the court:

This case returns to our court by a supervisory order of the Illinois Supreme Court. On September 24, 2001, we dismissed this appeal because we determined that we lackedjurisdiction to hear it. On February 6, 2002, the Illinois Supreme Court denied TedVerstreater's petition for leave to appeal but, by supervisory order, directed this court toreinstate his appeal. Verstreater v. Verstreater, 198 Ill. 2d 609, 762 N.E.2d 513 (2002). Weaddress the merits of this case solely on the basis of the Illinois Supreme Court's supervisoryorder.

In his notice of appeal, Ted Verstreater contends that he is appealing from the trialcourt's May 21, 2001, order denying his motion to reconsider the October 4, 2000, orderwhich found that he was in arrears on his child support obligations in a total amount of$13,310, that he had the ability to pay, that he was in wilful contempt of court for notpaying, and that his posted bond in the amount of $13,000 should be disbursed to applytowards the arrearage. He also appeals from the trial court's June 22, 2001, order denyingthe State's motion to reconsider the May 21, 2001, order, which in part had stayed thedisbursement of the $13,000 bond money pending appeal. We affirm.

Ted Verstreater and Gail Verstreater, now known as Gail Roach, were married in1985. Their union produced five children. Gail was a homemaker. Ted had a variety oflow-paying jobs during the marriage. The marriage began to fall apart, and by 1990, theparties were legally separated. Ultimately, the parties were divorced in 1992. Gail receivedcustody of the five children, and Ted received visitation rights and the obligation to paychild support. Initially, he was ordered to pay $115 per week. Over the years, this childsupport obligation was modified or abated to reflect various periods of unemploymentand/or job changes. There were times when Ted did not make his payments, and orders toshow cause were entered. However, from our review of the record, it appears that for themost part, Ted made efforts to meet his child support obligations. From his 1992 divorceuntil 1999, his child support arrearage totaled $6,372.21, through numerous employmentchanges.(1) In September 1998, Ted filed papers to incorporate, and in January 1999, heopened his own car repair business. His two worst years of child support payments followedthe opening of the business. In 1999, he paid only $400 of a $5,200 support obligation, foran additional $4,800 arrearage. The year 2000 did not bring about much change in thefrequency of payments, and by the end of August 2000, Ted had only paid $1,440 of a$4,080 obligation, adding another $2,640 to his total arrearage.

Gail was receiving public aid throughout much of this time. Because of the fundsthat the State of Illinois was paying Gail on behalf of her children and because of Ted'sinconsistent support payments, the Illinois Department of Public Aid (Department) filed itspetition to intervene in this case. That petition was granted on July 7, 1994.

On September 2, 1999, the Department filed a petition for the adjudication of indirectcivil contempt against Ted. The Department asserted that he had wilfully andcontemptuously failed to pay child support, with $9,000 in past-due support owed. OnOctober 8, 1999, the trial court ordered Ted to show cause why he should not be held in civilcontempt of court for failing to pay this child support. Over the next several months, theDepartment sought to discover business and tax records from the date of incorporation ofTed's business forward. Ted hired and fired attorneys and ultimately filed a notice ofcompliance. The Department filed a motion to compel discovery to obtain the documentsthat Ted had refused to produce, including his 1998 income tax return and all recordspertaining to his auto repair business. Slowly, in response to court orders, Ted producedsome but not all of the requested documents.

While this discovery process was ongoing, Ted filed a motion to abate his childsupport obligation. He asked that the court retroactively reduce the amount he owed forweekly child support going back to the fall of 1998, when his employer went out ofbusiness.

At a status hearing, with all parties present, the trial court set the hearing on the ruleto show cause issued against Ted, for May 18, 2000. As the date approached, a problemwith the production of documents needed to present his side of the case caused Ted'sattorney to file a motion to continue the hearing. Ted's attorney had previously instructedTed to appear at the hearing unless otherwise notified. In any event, the trial court deniedthe motion for a continuance. On the morning of the hearing, his attorney's secretary finallymade contact with Ted. Ted advised that he had car trouble and would not be attending thishearing. The trial court issued a body attachment for Ted in the amount of $13,000, withthe specific ruling that the entire amount-not just 10%-had to be posted.

Ted was taken into custody pursuant to the bond attachment on May 30, 2000. Afriend posted the full amount of the bond the following day. This friend, James Edwards,was advised in writing that the money might not be returned to him even if Ted appeared atevery required hearing thereafter. James Edwards later admitted that he was aware that thebond money could be applied to Ted's child support arrearage.

In June 2000, Ted's second attorney asked the court for leave to withdraw from hisrepresentation. The motion was granted. Ted hired his present attorney. That attorney fileda motion, on Ted's behalf, seeking the return of the bond money. The trial court thereafterset the show-cause order based on the Department's petition for contempt, Ted's petition toabate, and Ted's motion for the return of his bond money for a hearing on August 28, 2000.

On that date, the court heard evidence on all of these pending matters. There isnothing detailing the evidence presented, and no record was created at the hearing. Thedocket entry for the date reflects that the trial court denied the motion for the return of thebond money, confirmed that the discovery cutoff had been April 7, 2000, found that Ted hadthe ability to pay the child support arrearage and that Ted had wilfully failed to pay thatsupport, held Ted in contempt of court, and ordered the $13,000 in bond money to beapplied to Ted's outstanding arrearage. The court additionally reduced Ted's supportobligation to $78.75 per week retroactive to April 7, 2000, the date upon which he filed themotion to abate. The docket order concluded with a statement that a written order would beforthcoming.

The trial court signed a written order on October 4, 2000, although it was notofficially filed with the court clerk until November 3, 2000. The written order essentiallytracked the components of the written docket entry made months earlier.

On October 31, 2000, Ted filed a motion to reconsider. Because the motion toreconsider was filed prior to the date when the judgment was filed, the motion to reconsiderwas untimely filed. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538-39, 470N.E.2d 290, 292 (1984). Despite the untimely filing, the trial court considered this motionto reconsider, on March 28, 2001. The trial court's decision to consider the motion did notconvert the motion into one that was timely filed or otherwise revest the trial court withjurisdiction. See Barth, 103 Ill. 2d at 538, 470 N.E.2d at 291; Sears v. Sears, 85 Ill. 2d 253,260, 422 N.E.2d 610, 613 (1981). The trial court denied the motion by docket entry thatdate but did not file a written order until May 21, 2001.

After the March 28, 2001, hearing, Ted filed a motion to waive the appeal bond. TheDepartment objected, but the trial court granted the motion. The Department filed a motionto reconsider this order, which was denied on June 22, 2001.

Ted filed notices of appeal following the entry of the May 21, 2001, order, and theJune 22, 2001, order.

We dismissed the appeal on the basis that this court was not vested with appellatejurisdiction. Our dismissal was based upon the well-known rule of procedure that a noticeof appeal must be filed within 30 days of the entry of the final order at issue. See 735 ILCS5/2-1203 (West 1998); 137 Ill. 2d R. 272; 155 Ill. 2d R. 303. Ted's posttrial motion was nottimely filed, because it predated the filing of the order to which his posttrial motion wasdirected. See Barth, 103 Ill. 2d at 538-39, 470 N.E.2d at 292 (the Illinois Supreme Courtheld that a September 20, 1982, motion to reconsider was untimely and did not extend thetime for filing a notice of appeal when the signed judgment order was not filed until October6, 1982). The Illinois Supreme Court apparently disagreed, because it ordered us to reinstateTed's appeal. On that basis we address the merits of Ted's appeal.

On appeal, in four separate arguments, Ted contends that the trial court abused itsjudicial powers. He also argues that the trial court failed to return Ted's bond money.

Continuance of May 18, 2000, Hearing

Ted argues that the trial court erred by denying his request for a continuance of theMay 18, 2000, hearing on the show-cause order based on the Department's petition forcontempt. By Ted's failing to cite authority in support of his argument on this issue, wecould consider this matter waived. Despite this failing, we choose to address the issue.

The trial judge maintains the discretion to grant or deny a motion for a continuance.In re Marriage of Knoche, 322 Ill. App. 3d 297, 308, 750 N.E.2d 297, 306 (2001). Becausethe rule to show cause was initially filed in the fall of 1999 and discovery had taken place,the case was ready for a hearing. The case had already been continued once. Ted's attorneyfiled this motion a mere one day prior to the hearing's date. In his motion, he claimed thatTed had just received certain financial documents which required analysis by an accountant. Because the record reflects that the discovery cutoff in this matter was April 7, 2000,whether new financial data was ready for the May 18, 2000, hearing was irrelevant, sincethe evidence was likely inadmissible. Otherwise, we find no basis in the record to concludethat the trial judge abused his discretion in denying this motion.

Holding Ted Verstreater in Contempt of Court for Failing to Appear at the Hearing

Ted contends that Judge Middendorff abused his judicial powers by holding him incontempt for failing to appear at the May 18, 2000, hearing, given the circumstances of hisnonappearance. Ted claims that his attorney had told him that it was unnecessary to appearin court.

The decision to hold Ted in contempt of court for failing to appear at the May 18,2000, hearing is within the trial court's discretion. Ted does not argue that the trial courtlacks the authority to find a party in contempt for failing to appear at a court hearing. Instead, he argues that the trial court abused its powers by finding him in contempt in lightof the fact that Ted had been advised not to appear in court by his attorney. He claims, inother words, that the trial judge's order of contempt was unfair under the circumstances. Tedpresented no record of what the trial judge was told about his absence from the hearing. From an affidavit filed by his attorney at the time of the hearing, Gerry A. Ess, we areprovided with some of the background facts. Gerry A. Ess's secretary began trying to reachTed by phone as soon as the office was notified that the motion for a continuance had beendenied. The purpose of the attempted contacts was to tell Ted that he must appear in courtthe following morning. She did not find Ted until the morning of the hearing. Ted claimedto have had car trouble that began the day before. He had not bothered to contact hisattorney or the court to provide this information. He knew of the hearing and made no effortto secure alternate transportation to the courthouse. Gerry A. Ess testified, "I advised myclient on May 17th that unless he heard back from me, that [sic] he needed to be at thehearing." He emphatically denies that he suggested or informed Ted that he did not need toappear at the hearing.

Ted's own excuse, which may or may not have been conveyed to Judge Middendorffon May 18, 2000, was that he had car trouble. He did not tell the court that his attorney toldhim that he did not need to be in court. In any event, his attorney's own testimony castsserious doubt on Ted's version of the facts. From our review of the record, we find no basisto conclude that the trial court abused its discretion in holding Ted in contempt of court.

Setting the $13,000 Bond for Contempt of Court

Ted argues both that Judge Middendorff abused his powers by setting the bond at$13,000 without the presentation of evidence supporting that amount and that JudgeMiddendorff failed to follow the applicable body-attachment statute in setting the bond.

Ted is correct that the record does not reflect the foundation for the $13,000 at issue. Any error in the record's failing, however, falls upon Ted. Ted is appealing the trial court'sdecision, and thus he bears the burden to prove that no evidence had been received regardingthe appropriate amount in which to set the bond.

Ted does not argue that the trial judge lacked the authority to enter an order for theattachment of the body in light of his failure to appear at the May 18, 2000, hearing. Bystatute, Judge Middendorff clearly maintained that right. 750 ILCS 5/713(a) (West Supp.1999). In fact, the statute authorizes the judge to fix the bond in an amount equal to "aminimum of 20% of the total child support arrearage alleged by the obligee." 750 ILCS5/713(a) (West Supp. 1999). Because the $13,000 bond amount was very close to theamount of arrearage Ted owed, it does not seem likely that the amount was selected with nobasis in evidence. Was sworn testimony taken at this May 18, 2000, hearing? We do notknow. Ted was not there, and so he cannot possibly advise us one way or the other. Thesame is true for his present attorney, R.W. Deffenbaugh. The charge of providing a full andcomplete record falls solely upon Ted and his attorney. While we understand that there wasno tape recording or court reporter present at the May 18, 2000, hearing, the IllinoisSupreme Court has provided the means by which a record can nevertheless be presented onappeal. In Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)), the court sets forth the properprocedure for this situation. A bystander's report may be filed, which is a proposed reportof proceedings. In this case, the report of proceedings would have to be drawn from therecollections of the persons present at the hearing. In this case, a bystander's report is criticalto knowing whether or not the proper evidence was adduced. With no record, we have nobasis to find that Judge Middendorff abused his discretion.

Allowing the $13,000 Bond to Be Applied to the Arrearage

Ted argues that Judge Weber failed to properly follow section 713 of the IllinoisMarriage and Dissolution of Marriage Act (750 ILCS 5/713 (West Supp. 1999)) indisbursing the $13,000 bond posted by an unrelated third party. Ted believes that JudgeWeber did not have the authority to release the funds to the Department. Ted draws ourattention to subsection (e) of that statute, which would have come into play if Ted had notappeared in court after his release from custody (750 ILCS 5/713(e) (West Supp. 1999)). If Ted had not appeared at this hearing, the statute would require the court to release thebond money to the obligee or public office (750 ILCS 5/713(e) (West Supp. 1999)). If thissection is read in isolation, Ted's argument appears to have merit. However, this section isinapplicable.

On August 28, 2000, the parties and the attorneys were present in court for thehearing. Subsection (e) never came into play. Subsection (d) controlled that hearing, andit states as follows:

"Whenever an obligor is taken before the court by the Sheriff[] or appears incourt after the court has ordered the attachment of his body, the court shall:

(1) hold a hearing on the complaint or petition that gave rise to theattachment order. For purposes of determining arrearages that are due andowing by the obligor, the court shall accept the previous sworn testimony ofthe obligee as true and the appearance of the obligee shall not be required. The court shall require sworn testimony of the obligor as to his or her SocialSecurity number, income, employment, bank accounts, property[,] and anyother assets. If there is a dispute as to the total amount of arrearages, thecourt shall proceed as in any other case as to the undisputed amounts; and

(2) order the Clerk of the Circuit Court to disburse to the obligee orpublic office money held in escrow pursuant to this Section if the court findsthat the amount of arrearages exceeds the amount of the escrow. Amountsreceived by the obligee or public office shall be deducted from the amount ofthe arrearages." (Emphasis added.) 750 ILCS 5/713(d) (West Supp. 1999).

We have no record of that hearing. Ted's goal at that hearing was twofold, based upon themotions that he had filed prior to that date. He sought the release of the bond money on thetheory that he had been advised by his attorney, Gerry A. Ess, not to appear at the May 18,2000, hearing. He also sought to have the amount of his support abated because he wasstruggling financially and could not afford the weekly amount previously set by the court. By the pleadings, we have no reason to believe that Ted disputed the amount of thearrearage.

Testimony and evidence established that the amount of his arrearage exceeded the$13,000 in escrow. Given the express statutory language, Judge Weber did precisely whatthe law required, by releasing the $13,000 in bond money to the Department.

Failure to Admit Tax Returns for 2000 for Calculating the Arrearage

Ted argues that the trial court erred in failing to admit tax returns for the tax year2000. He specifically states that this evidence was offered at the August 2000 hearing.Obviously, a tax return for 2000 could not have been prepared, or filed, prior to the end ofthe tax year 2000. Assuming that Ted is referring to an income tax return for 1998 or 1999,there remains an obvious relevance problem with this argument. Ted was under a courtorder to pay support in a set amount. No explanation was made in his appellate brief or inargument about how the information contained within an income tax return would havebearing upon the ongoing accumulation of a child support arrearage pursuant to an order ofsupport. Additionally, the record clearly reflects a discovery cutoff of April 7, 2000. If Tedwanted the trial judge to consider this return, he should have produced the return indiscovery prior to that date. The trial court did not abuse its discretion in denying Ted'srequest to consider the income tax return at issue.

Incorrect Calculation of Abated Child Support

Ted is happy that Judge Weber granted his motion to abate retroactive to the datewhen he filed the motion. However, he argues that Judge Weber's calculation was erroneousand that the child support amount should be even lower than that ordered. He contends thatJudge Weber's error lies in his refusal to admit, and consider, the income tax return.

For the reasons stated previously in this opinion, Judge Weber's decision to refuse theadmission of the income tax return was proper.

Conclusion

For the foregoing reasons, the judgments of the circuit court of Montgomery Countyare hereby affirmed.

Affirmed.

MAAG and CHAPMAN, JJ., concur.

 

 

1. By June 14, 1994, Ted's arrearage totaled $2,702.21, and upon court action by theState, Ted agreed to a judgment being entered against him in that amount. By the end of1994, his additional arrearage was $15. For 1995, his arrearage was $355. For 1996, Tedincurred no arrearage. In 1997, Ted incurred a $1,400 arrearage. In 1998, he had a $1,900arrearage.