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Hess v. Hess

OPINION FILED AUGUST 28, 1980.

THERESA M. HESS, PETITIONER-APPELLEE,

v.

HARMON A. HESS, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. JAMES H. BUMGARNER, Judge, presiding. MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

This appeal is taken by the respondent, Harmon A. Hess, from orders of the court entered April 9, 1980, finding him to be in contempt of court for wilful and contumacious nonpayment of child support and finding the petitioner, Theresa M. Hess, not in contempt of court for failing to allow Harmon visitation with the couple's minor children. On appeal, Harmon questions whether the trial court's findings were against the manifest weight of the evidence and whether the trial court committed reversible error by failing to allow Harmon to purge himself of contempt.

• 1 The appellee has failed to file a brief with this court, citing financial inability as the reason. Whatever the reason given for the failure to file a brief, a court of review should not feel compelled to serve as an advocate for the appellee or to search the record for the purpose of sustaining the judgment of the trial court. However, where the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, as is true in the instant case, a court of review should decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

The parties to this appeal were granted a dissolution of marriage on February 16, 1979. On March 23, 1979, a supplemental order was entered delineating the respective property rights of the parties and adjudicating custody and support matters.

The order of March 23, 1979, provided, inter alia, that Harmon was to have visitation of the parties' minor children every other weekend and alternate Wednesdays and holidays. Child support was fixed at 18 percent of Harmon's take-home pay but, in no event, to be less than $30 per week.

Theresa filed a petition for rule to show cause on March 6, 1980, and an order was entered pursuant thereto finding Harmon to be in arrears in child support payments in the amount of $630. On March 18, 1980, Harmon filed a petition for rule to show cause, upon which an order was entered, directing Theresa to show cause why she should not be held in contempt for wilful failure to allow visitation.

A consolidated hearing was held on April 9, 1980, at which time Harmon stipulated that he was in arrears in the amount of $720 from the date of dissolution until the time of the hearing. At the hearing, Harmon testified that he had worked approximately one week during the six-month period proceeding the hearing. He also testified that he had recently been called back to work at Farm Services, where he anticipated making $250 weekly. He stated that he had received unemployment compensation in the amount of $50 per week for part of the six-month period, out of which he had paid approximately $240 in child support, although he was unsure of the exact amounts paid.

Harmon testified that he had been hospitalized for a period of time in October 1979. He was not sure whether he had suffered a heart attack but did recall being advised to "stay extremely calm and not do anything strenuous."

On cross-examination, Harmon admitted that his monthly rent of $295 had always been paid on time and that he had not sought a cheaper place to live although his rental payments exceeded the amount due as child support. All of his other bills, with the exception of one or two current utility bills, were paid.

On the basis of the evidence presented, Harmon was found to be in contempt of court for his wilful and contumacious refusal to pay child support. On appeal, he contends that this finding is against the manifest weight of the evidence. We disagree.

• 2, 3 It is well settled that the trial court's discretion will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (In re Marriage of Preston (1980), 81 Ill. App.3d 672, 402 N.E.2d 332.) In the case at bar, the evidence presented supports the trial court's findings.

In Cooper v. Cooper (1978), 59 Ill. App.3d 457, 375 N.E.2d 925, the reviewing court discussed civil contempt based upon nonsupport as follows:

"The failure of a father to comply with the decree directing the payment of support money for children is prima facie evidence of contempt. (Cole v. Cole (1st Dist. 1967), 85 Ill. App.2d 105, 112, 229 N.E.2d 293.) The burden then is on the father to show that he had a valid excuse for nonpayment. (Cole, at 112.) As a defense to a contempt action, the father need show simply that his failure to comply with the order was not a wilful or contumacious refusal. (Ellingwood v. Ellingwood (1st Dist. 1975), 25 Ill. App.3d 587, 593, 323 N.E.2d 571; Storm v. Storm (1st Dist. 1973), 9 Ill. App.3d 1071, 1076-77, 293 N.E.2d 633.)" 59 Ill. App.3d 457, 467, 375 N.E.2d 925, 933.

In the case at bar, the admission by the respondent that he was $720 in arrears in child-support payments at the time of the hearing established a prima facie case of contempt against him. The burden of showing that his failure to pay was not wilful or contumacious then shifted to the respondent. He has failed to meet that burden of proof.

• 4 Although he was out of work for a considerable period of time, the respondent made few efforts to pay child support from the unemployment compensation he was receiving. All of his bills were currently paid, including the rent on a rather expensive apartment. It is not clear where the respondent obtained the money to make these payments, but it is clear that he failed to use the money to satisfy his obligations to pay child support. For this reason we will not disturb ...


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