APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHER, Judge, presiding.
MR. JUSTICE BROWN*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS PREPARED BY JUSTICE BROWN WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT. Rehearing denied January 26, 1979.
On July 7, 1977, the State filed a nonsupport action under section 1 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1975, ch. 68, par. 24) against the defendant, Joseph Wright. On August 24, 1977, the trial court, after hearing evidence, entered a $40 per week support order. Defendant retained counsel and filed a motion to vacate and to rehear on September 20, 1977. On October 4, 1977, another judge, after hearing evidence, entered a temporary order providing that defendant shall not be held in contempt for failure to comply with the August 24, 1977, order, as long as he continues to pay monthly mortgage payments, and continued the hearing on the motion until October 18, 1977. On October 18, 1977, the trial court, after hearing arguments of counsel, entered an order denying defendant's motion to rehear, granting the State's motion to amend its complaint to section 1 of "An Act in relation to married men and women" (Ill. Rev. Stat. 1975, ch. 68, par. 22), and ordering the defendant to pay $40 per week as support.
Defendant appeals from the entry of the August 24, 1977, support order, and the denial of his motion to rehear. Defendant also filed a motion in this court to reverse the October 18, 1977, order and filed a petition for attorney's fees.
The issues presented on review are: (1) whether the support order of October 18, 1977, is void because the court lacked subject matter jurisdiction over an action brought pursuant to section 1 of "(An Act in relation to married men and women"; (2) whether the complaint could properly be amended on October 18, 1977; (3) whether defendant can be found guilty of violating section 1 of the Non-Support of Spouse and Children Act when his spouse and children are not recipients of public aid; (4) whether the trial court's finding of nonsupport was against the manifest weight of the evidence; and (5) whether the State's confession of error entitles the defendant to attorney's fees. The pertinent facts follow.
On August 24, 1977, a hearing was conducted in the circuit court of Cook County before the Honorable Francis J. Maher, to determine whether defendant, Joseph Wright, was guilty of nonsupport of his wife, Nellie Wright, and their two minor children pursuant to a complaint charging defendant with violation of section 1 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1975, ch. 68, par. 24, now cited as Ill. Rev. Stat. 1977, ch. 40, par. 1101).
Nellie Wright, the complainant, testified that she and defendant were buying their residence at 16259 South Damen, Markham, Illinois; that defendant was last with her for two nights in May; that defendant has paid rent and gas, light, and water bills; that defendant does not give her any money for food for his two children; that she usually pays between $30 and $40 per week for food; that she pays all of her dental and clothing bills and most of the children's clothing bills; that she was receiving $20 per week for baby-sitting but would be receiving only $10 per week after September.
Defendant testified that he was a janitor and also held a parttime job at a nightclub; that his total net income was $260 per week; that he paid the rent and utility bills on the home; that he comes home for a night or a day; that he has not left his home; that he stays on his job; that he sleeps on a bench at his job and a lot of days he doesn't get any sleep because he gets off one job and goes to the other job; that he doesn't feel like going home to bed. He stated that he did not know the last time he stayed at home for any period of time. Defendant further testified that he was supporting his wife and children; that he is paying $100 per month on complainant's hospital bills; that he just got through paying a $1,600 dental bill for his daughter; that he could not afford to give complainant anything for food; and that complainant has two grown children living with her who are not paying rent.
At the conclusion of the hearing, the trial court entered an order that defendant pay weekly support of $40 commencing August 31, 1977, and set the matter for a progress report on September 28, 1977. The trial court informed defendant at this hearing that it was a "good idea" for him to retain a lawyer and to tell the lawyer that defendant's next court date was September 28.
Defendant retained counsel and filed a motion to vacate and to rehear on September 20, 1977, pursuant to section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 68.3). Defendant's motion alleged that he has at all times supported and maintained his wife and two children and has receipts and cancelled checks to establish this claim, and that on August 24, 1977, he was not represented by counsel but has now retained counsel.
On October 4, 1977, in the absence of Judge Maher, a hearing was held on defendant's motion before the Honorable Francis P. Butler. The State stipulated that complainant had not been receiving public aid for the two children.
Defendant testified that he was a janitor at the Chicago Tribune and Club Misty and that he cleans up a beauty shop; that he worked six nights a week; that he married complainant in April 1962; and that he has been the sole means of support for his family. He described three monthly mortgage payments he had made, and his counsel indicated that he had several other checks for 1977. Upon inquiry by the judge, the State indicated that complainant alleged that defendant is not keeping up with his payments on clothing and food bills. Complainant then twice stated "I never said that he didn't pay the bills."
The Judge stated that he had no jurisdiction to vacate the August 24, 1977, order, since the judge that entered it was away at a judicial seminar and was the only one who could vacate his own order. The judge orally entered a temporary order providing that defendant shall not be held in contempt for failure to comply with the August 24, 1977, order, as long as he continues to pay monthly mortgage payments, and continued the hearing on defendant's motion until October 18, 1977.
At the hearing October 18, 1977, defendant's counsel argued that section 1 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1975, ch. 68, par. 24) only applies where the spouse seeking support is a public aid recipient, and since complainant was not a public aid recipient, the State was proceeding under the wrong statute. Section 1 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1975, ch. 68, par. 24, now cited as Ill. Rev. Stat. 1977, ch. 40, par. 1101) provides as follows:
"Every person who shall, without any lawful excuse, neglect or refuse to provide for the support or maintenance of his spouse, said spouse being in need of such support or maintenance, or any person who shall, without lawful excuse, desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of 18 years, in need of such support or maintenance, shall be deemed guilty of a Class A misdemeanor and shall be liable under the provisions of the Public Aid Code of Illinois', approved April 11, 1967, to the Supervisor of General Assistance or to the Illinois Department of Public Aid, as the case may be, in a civil action, for the amount of general assistance or assistance provided to his spouse or children, or both his spouse and children."
The trial court interpreted section 1 to be an action that should be brought by the State in a situation where the complainant is actually on public assistance. The State agreed and moved to amend the complaint to section 1 of "An Act in relation to ...