Opinion
1-20-1185
09-30-2021
IN RE MARRIAGE OF FRANCINE PEARCE, Petitioner-Appellee, v. RODNEY FALLS, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Trial Court of Cook County. No. 10 D 630043 Honorable Naomi H. Schuster, Judge, presiding.
JUSTICE BURKE delivered the judgment of the court. Justice McBride and Justice Ellis concurred in the judgment.
ORDER
BURKE JUSTICE
¶ 1 Held: We affirm the trial court's contempt findings because, in the absence of a report of proceedings in the record on appeal, we assume the trial court's findings were in conformity with the law and had a sufficient factual basis. We dismiss respondent's claims with respect to his pending motion to modify child support due to lack of jurisdiction.
¶ 2 In January 2011, the trial court entered a judgment for dissolution of the marriage of Francine Pearce and Rodney Falls that required Rodney to pay $900 per month in child support and 50% of their daughters' medical and dental expenses. Between 2014 and 2019, Francine filed a series of petitions for rules to show cause as to why Rodney should not be held in contempt for failing to pay child support and half of his daughters' medical expenses. Following a trial, on October 1, 2020, the court found Rodney in indirect civil contempt for failing to pay a total of $74,223.09 in child support and $7,300.73 in medical expenses. On appeal, Rodney contends the trial court erred by holding him in contempt and by not modifying his child support obligations. For the reasons that follow, we affirm in part and dismiss in part.
¶ 3 I. BACKGROUND
¶ 4 The record on appeal does not contain a report of the trial court proceedings, a bystander's report, or an agreed statement of facts. See Ill. S.Ct. R. 321 (eff. Feb. 1, 1994); Ill. S.Ct. R. 323 (eff. July 1, 2017). From the limited record on appeal, we can only glean the following facts.
¶ 5 In 2010, Francine, a pediatrician, filed a petition for dissolution of marriage from her husband, Rodney, a self-employed real estate developer. Francine stated she and Rodney had three daughters together, born in 1999, 2003, and 2004. Relevant here, Francine and Rodney's oldest daughter, who is now an adult, is named Sydney Falls.
¶ 6 On January 28, 2011, the court entered a judgment for dissolution of marriage, which incorporated a marital settlement agreement between the parties. The judgment required Rodney to pay $900 per month in child support, which the parties acknowledged exceeded guideline child support due to the needs of the children and Rodney's source of income being unemployment compensation. Rodney's child support obligations continued until his daughters were emancipated, turned 18, completed high school, got married, died, or no longer resided with Francine a majority of the time. In addition, Rodney was required to pay 50% of his daughters' medical and dental expenses not covered by insurance until the children were married, emancipated, no longer full-time students, 23 years old, or deceased.
¶ 7 On February 28, 2014, Francine filed a petition for a rule to show cause as to why Rodney should not be held in contempt for, inter alia, failing to pay 50% of his daughters' medical expenses as required by the judgment of dissolution. Francine alleged Rodney failed to pay $2,451.37 in medical care for the children that was not covered by insurance, plus $50 per month for braces for one of the children.
¶ 8 On October 28, 2014, Francine filed a petition for a rule to show cause as to why Rodney should not be held in contempt for failure to pay child support. She alleged he owed $4,050 in unpaid child support as of October 1, 2014.
¶ 9 On March 4, 2015, the court entered two judgments against Rodney for $2,982.65 in unpaid child support as of January 21, 2015, and $1,861.91 in unpaid medical expenses. The court ordered Rodney to pay $25 per month toward each judgment, for a total of $50 per month, until the judgments were paid in full. However, the court denied both of Francine's petitions for rules to show cause, finding Rodney's failure to pay child support and medical expenses was not willful and contumacious.
¶ 10 On February 5, 2019, Francine filed a petition to set child support arrearage, which alleged Rodney had not made any child support payments since the March 4, 2015, judgments and that he had accrued an arrearage of $47,082.65 plus statutory interest.
¶ 11 On February 19, 2019, the court entered an order allowing Rodney to respond to the petition to set arrearage and ordered the parties to exchange financial affidavits and supporting documentation within 28 days.
¶ 12 On March 28, 2019, Francine filed a petition for a rule to show cause as to why Rodney should not be held in contempt for failing to provide a financial affidavit and supporting documentation as ordered. She withdrew this petition when Rodney provided a financial affidavit in court.
¶ 13 On September 6, 2019, Francine filed a petition for a rule to show cause as to why Rodney should not be held in contempt for failing to pay child support and failing to make payments toward the March 4, 2015, judgments. Francine alleged that Rodney had not made any child support payments since January 21, 2015, and that he owed $50,400 in unpaid child support plus statutory interest. She also alleged that Rodney had not made any of the required $50 monthly payments toward the judgments of March 4, 2015.
¶ 14 Rodney filed a response, denying he had failed to pay child support and arguing Francine should be equitably estopped from seeking child support payments with respect to Sydney from September 2015 to September 2017 because Sydney lived with him during that time. He also claimed he had paid $2,467 toward the March 4, 2015, judgments and that he would pay the balance when he was able to do so.
¶ 15 On September 17, 2019, Rodney filed a pro se motion to modify the child support order. He alleged that Sydney had lived with him from September 1, 2015, until she graduated high school and "emancipated herself" by moving to Australia in 2017, and that she had been living as an independent adult since that time. Rodney argued that Francine should be equitably estopped from seeking any child support payments with respect to Sydney after September 1, 2015. Rodney also requested that the court reduce his child support payments with respect to his and Francine's two other daughters to the statutory minimum of $538.03 due to the disparity between his $27,000 annual income and Francine's $200,000 annual income, along with financial losses he incurred in his real estate business.
¶ 16 Francine filed a response to Rodney's motion to modify, which acknowledged that Sydney lived with Rodney from September 1, 2015, to September 2017, when she moved to Australia. Francine denied that Rodney made child support payments to her bank account but acknowledged that Rodney had made "nominal direct payments to the remaining minor children."
¶ 17 On November 4, 2019, the court issued a rule to show cause against Rodney for failing to pay child support pursuant to the January 28, 2011, judgment of dissolution and the March 4, 2015, judgments, and ordered him to appear on December 18, 2019. Rodney appeared on December 18, 2019, and the parties proceeded with discovery.
¶ 18 At trial on September 24, 2020, the court heard Francine's February 5, 2019, petition to set child support arrearage and her September 6, 2019, petition for rule to show cause. As noted above, the report of proceedings is not included in the record on appeal. However, the court's written order of October 1, 2020, indicates that Rodney was "excluded from the [trial] proceedings after the conclusion of opening statements as he admitted to recording the proceedings on his cellular phone in violation of General Order 20 D 21 (amended) and the Court was unable to confirm the deletion of the recording; Rodney objecting and being unwilling to turn over the sim card or his cellular phone to Francine's counsel as directed by the Court."
The court also heard a petition for rule to show cause Francine filed on July 26, 2019, which sought immediate payment of $1,183.33 in medical expenses and attorneys' fees and costs. The court denied that petition for rule to show cause and it is not at issue in this appeal.
¶ 19 On September 25, 2020, Francine's attorney emailed draft orders purporting to summarize the rulings of the September 24, 2020, trial to the court. On September 28, 2020, the court coordinator responded by email, indicating that the court could not sign the draft orders because, inter alia, the court "did not find that [Rodney] had the ability to pay $900 per month but that he had the ability to pay more than he did. [The court] did find that [Rodney] had the ability to pay the two payments of $25 on the 2015 adjudicated delinquency." Rodney was copied on both emails.
¶ 20 On October 1, 2020, the court issued its findings from the trial in a written order. The court found that Rodney was obligated to pay Francine $900 per month pursuant to the January 28, 2011, judgment of dissolution, which had never been modified. The court found that Rodney paid a total of $680 directly to Francine between March 1, 2015, and September 1, 2020, and that he had the ability to pay more than that amount during that time. The court also found that Rodney had the ability to pay $50 per month toward the two judgments of March 4, 2015. The court concluded that Rodney's failure to pay child support was without compelling cause or justification.
¶ 21 The court granted Francine's petition for rule to show cause of September 6, 2019, and found Rodney owed her $59,620 in unpaid child support from March 1, 2015, to September 1, 2020, plus $14,603.09 in statutory interest, for a total of $74,223.09. The court also found that Rodney owed Francine $4,874.56 from the March 4, 2015, judgments plus $2,426.17 in statutory interest, for a total of $7,300.73. The court entered two adjudications of indirect civil contempt against Rodney with respect to these two categories of arrearage but stayed his commitment to Cook County Jail until November 25, 2020, to allow Rodney to purge the contempt findings by posting payments of $4,500 and $500, respectively. The court continued the case to November 25, 2020, to determine whether Rodney had purged the contempt and to address his September 17, 2019, motion to modify child support.
¶ 22 Rodney filed a pro se notice of appeal on October 28, 2020.
¶ 23 II. ANALYSIS
¶ 24 On appeal, Rodney argues the trial court's contempt findings of October 1, 2020, were abuses of the court's discretion. He also contends "child support payments coming due subsequent to [his] September 17, 2019, motion for modification, are subject to reduction."
Rodney's notice of appeal also challenges the trial court's order of June 5, 2019, requiring him to pay Francine $400 in attorneys' fees as a sanction for filing a frivolous motion for substitution of judge. However, Rodney's briefs do not address that order. Accordingly, Rodney has forfeited any argument with respect to the June 5, 2019, sanctions order. See In re Rayshawn H., 2014 IL App (1st) 132178, ¶ 38 (an appellant forfeits points not raised in his initial brief).
¶ 25 A. Jurisdiction
¶ 26 We must first examine our own jurisdiction. People v. Lewis, 234 Ill.2d 32, 36-37 (2009). Rodney's pro se brief contends we have jurisdiction over the "final judgment order entered on October 1, 2020," pursuant to Supreme Court Rule 301, which provides that "[e]very final judgment of a circuit court in a civil case is appealable as of right." See Ill. S.Ct. R. 301 (eff. Feb. 1, 1994). Similarly, Rule 303(a) requires the filing of a notice of appeal within 30 days of "entry of the final judgment appealed from." Ill. S.Ct. R. 303(a) (eff. July 1, 2017). Thus, "our jurisdiction is limited to the review of appeals from final judgments, unless otherwise permitted under the Illinois Supreme Court Rules or by statute." In re Estate of Cerami, 2018 IL App (1st) 172073, ¶ 31.
¶ 27" 'An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof.'" Id. (quoting In re Marriage of Garman, 232 Ill.2d 145, 151 (2008)). A judgment is final if it" 'fixes absolutely and finally the rights of the parties in the lawsuit *** [and] determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment'" Id. (quoting In re Parentage of Rogan M., 2014 IL App (1st) 132765, ¶ 9)." [G]enerally only a judgment that does not reserve any issues for later determination is final and appealable." In re Marriage of Susman, 2012 IL App (1st) 112068, ¶ 13.
¶ 28 We find the trial court's order and contempt findings of October 1, 2020, were not final under Rules 301 and 303. Those orders did not terminate the litigation on the merits and did not absolutely fix the rights of the parties. On the contrary, the court's October 1, 2020, orders stayed Rodney's contempt commitment for 55 days to allow him to purge the contempt and continued his motion to modify child support for the same amount of time. In addition, the court granted Francine leave to file a petition for attorneys' fees and costs under section 5/508(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508(b) (West 2020)), which she filed on November 20, 2020. Rodney filed an emergency motion to disqualify the trial court judge on November 23, 2020, which was assigned to the presiding judge on November 25, 2020. The record on appeal does not indicate that any of these issues were resolved. Thus, the October 1, 2020, orders were not final under Rules 301 and 303, and we do not have jurisdiction under those provisions.
The last entry on the trial court docket included in the record on appeal is dated July 31, 2019.
¶ 29 Nor do we have jurisdiction under Rule 304(a), which allows an appeal "from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or an appeal or both." Ill. S.Ct R. 304(a) (eff. Mar. 8, 2016). Rodney did not request, and the court did not enter, a Rule 304(a) finding that there was no just reason to delay enforcement or appeal of any of the orders at issue here. Thus, Rule 304(a) does not confer jurisdiction upon this Court.
¶ 30 Although we do not have jurisdiction under Rules 301, 303, or 304(a), we may consider whether we have jurisdiction under any other Supreme Court Rule. See O Banner v. McDonald's Corp., 173 Ill.2d 208, 201-11 (1996). We find the trial court's October 1, 2020, findings of contempt against Rodney are appealable under Supreme Court Rule 304(b)(5). Although Rodney did not cite Rule 304(b)(5) in his notice of appeal, we construe his notice of appeal liberally. See In re Marriage of O'Brien, 2011 IL 109039, ¶ 22. "[A] notice of appeal 'will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal.'" Id. (quoting Burtell v. First Charter Service Corp., 76 Ill.2d 427, 433-34 (1979)). Rodney's notice of appeal specifically challenged the trial court's contempt findings of October 1, 2020, and he timely filed his notice of appeal within 30 days of the contempt findings. Thus, we will review our jurisdiction over the contempt findings under Rule 304(b) (5).
¶ 31 Rule 304(b)(5) provides that "[a]n order finding a person or entity in contempt of court which imposes a monetary or other penalty" is appealable without a Rule 304(a) finding. Ill. S.Ct. R. 304(b)(5) (eff. Mar. 8, 2016). To confer jurisdiction under Rule 304(b)(5), the contempt findings must have imposed sanctions of some kind upon Rodney. See In re Marriage of Levinson, 2013 IL App (1st) 121696, ¶ 50.
¶ 32 We find that the contempt adjudications of October 1, 2020, imposed sanctions upon Rodney for purposes of Rule 304(b)(5). Those orders explicitly found Rodney "to be in indirect civil contempt of Court" and imposed two monetary fines totaling $5,000 for him to purge the contempt and avoid imprisonment in Cook County Jail. That is, the October 1, 2020, orders required Rodney to pay $5,000 within 55 days or go to jail; either outcome is a sanction. We have held that a purge amount can constitute a sanction for purposes of Rule 304(b)(5). See Id. ¶ 51. Thus, we have jurisdiction to review the contempt findings of October 1, 2020, under Rule 304(b)(5).
¶ 33 However, we do not have jurisdiction to consider Rodney's claims with respect to his September 17, 2019, motion to modify child support. First, Rodney's notice of appeal does not mention his September 17, 2019, motion to modify child support or any orders relating to it, so we lack jurisdiction to review orders relating to that motion. See People v. Smith, 228 Ill.2d 95, 104 (2008) (a notice of appeal confers jurisdiction on a court of review to consider only the judgments or parts thereof specified in the notice of appeal).
¶ 34 Second, the trial court's order of October 1, 2020, continued Rodney's motion to modify child support to November 25, 2020. The record on appeal does not indicate that Rodney's motion to modify child support was ever resolved. Rodney's brief acknowledges his "September 7, 2019, motion to modify child support is pending in [the] trial court." The trial court made no Rule 304(a) finding that there was no just reason to delay enforcement or appeal. We lack jurisdiction over and, therefore, dismiss Rodney's appeal with respect to his motion to modify child support. See General Motors Corp. v. Pappas, 242 Ill.2d 163, 176 (2011) ("Unless there is a properly filed notice of appeal, the appellate court lacks jurisdiction and is obliged to dismiss the appeal."); In re Marriage of Teymour, 2017 IL App (1st) 161091, ¶¶ 41, 43 (no appellate jurisdiction if there are postdissolution matters pending at the time of appeal and no Rule 304(a) finding).
¶ 35 B. October 1, 2020, Contempt Findings
¶ 36 Rodney argues that the trial court's October 1, 2020, findings of contempt were in error. Specifically, Rodney contends: (1) he was denied a hearing because he was removed from the trial after opening statements; (2) a "preponderance of the evidence" shows he did not have the ability to pay $900 per month in child support; (3) the court's email of September 28, 2020, indicates the court did not find Rodney had the ability to pay $900 per month; (4) the court's credit of $680 already paid by Rodney was incorrect; and (5) Francine should be equitably estopped from seeking child support payments for the time during which Sydney lived with Rodney.
¶ 37 "When a contempt appeal is filed, the standard of review is an abuse of discretion." In re Marriage of O'Malley ex rel. Godfrey, 2016 IL App (1st) 151118, ¶ 25. A trial court abuses its discretion when no reasonable person would take the view adopted by the court. Id. " 'Whether a contempt finding should be vacated is a question to be determined on the individual facts of the particular appeal.'" Id. (quoting Doe v. Township High School District 211, 2015 IL App (1st) 140857, ¶ 121).
¶ 38 The record on appeal does not include any reports of the trial court proceedings that resulted in the court's contempt findings of October 1, 2020. "The appellant has the burden to present a sufficiently complete record to support a claim of error on appeal." Hye Ra Han v. Holloway 408 Ill.App.3d 387, 390 (2011) (citing Webster v. Hartman, 195 Ill.2d 426, 432 (2001)). "Where the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding." Id. (citing Webster, 195 Ill.2d at 432). "Without such a record, it is presumed that the order entered by the trial court is in conformity with the law and has a sufficient factual basis." Id. (citing Foutch v. O'Bryant, 99 Ill.2d 389, 391-92 (1984))." 'Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.'" Id. (quoting Foutch, 99 Ill.2d at 392).
¶ 39 We affirm the circuit court's judgment with respect to the contempt findings of October 1, 2020, because Rodney has failed to present any record of what occurred at trial to support his claim of error. The trial of September 24, 2020, resulted in the October 1, 2020, orders finding Rodney in contempt. However, as noted above, no reports of proceedings are included in the record on appeal. Rodney argues the trial court's rulings were abuses of its discretion, but he fails to include in the record any of the evidence presented to the trial court. Without a transcript of the trial, there is no adequate basis for concluding the trial court abused its discretion. See Id. Thus, we must presume the judgment entered by the trial court was in conformity with the law and had a sufficient factual basis. Id. Accordingly, we affirm the judgment of the trial court with respect to its October 1, 2020, findings of contempt against Rodney.
¶ 40 III. CONCLUSION
¶ 41 For the foregoing reasons, we affirm the trial court's October 1, 2020, findings of contempt against Rodney. We dismiss this appeal with respect to Rodney's September 17, 2019, motion to modify child support due to lack of jurisdiction.
¶ 42 Affirmed in part and dismissed in part.