APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
509 N.E.2d 460, 156 Ill. App. 3d 438, 108 Ill. Dec. 764 1987.IL.484
Appeal from the Circuit Court of Cook County; the Hon. Michael S. Jordan, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
Defendant, Alton Isadore Sam Williams, appeals from the order of the circuit court of Cook County finding him in wilful contempt of court for failure to pay child support. On appeal, he contends that (1) he was denied due process because he did not receive notice on the contempt hearing; (2) the trial court improperly reversed the burden of proof on the issue of his present ability to pay child support and the court improperly imprisoned him for nonpayment of a debt; and (3) his failure to obtain employment did not amount to contempt. We reverse and remand.
The record reveals the following facts. Defendant and his ex-wife, Brenda Williams, were married on October 14, 1972. They had two children, one born in 1970, the other in 1973. Defendant and his wife stopped living together in 1974, but a judgment for dissolution of marriage was not entered until July 15, 1980. That judgment required, inter alia, that defendant pay as child support 30% of his net income when employed, and $150 per month when unemployed.
On May 2, 1984, Mrs. Williams filed a petition for rule to show cause against defendant for failing to pay child support as required by the judgment of the court. On June 4, 1984, the court continued the case to allow defendant to bring in his W-2 forms from 1983 and his tax returns from 1980 through 1983, inclusive.
On July 11, 1984, defendant filed a petition to modify the order of support. On the same date, the court found defendant in wilful contempt of court and sentenced him to 60 days in the House of Corrections. The court provided that defendant could purge himself of contempt by remaining current in his payments. On the same day, the court entered an order withholding from defendant's income $150 per month for current support, $100 per month on an arrearage of $7,350, and $25 per month on the delinquency until paid in full.
On September 28, 1984, the court held that defendant had purged himself of contempt by paying Mrs. Williams $250 per month for July, August, and September of 1984. The court vacated those paragraphs of the July 11 order holding defendant in contempt and continued the case to January 23, 1985, for a report on status.
On January 24, 1985, the court found that on September 28, 1984, defendant was purged of contempt; that defendant failed to appear in court on January 23, 1984; and that support and withholding orders were entered on July 11, 1984. The court then ordered the matter off of the call.
On March 20, 1985, defendant filed a petition to modify the order of support of July 11, 1984. He stated that on September 16, 1984, he lost his job, thus his only source of income was unemployment compensation at $500 per month. Thereafter, on April 11, 1985, the court temporarily abated the child-support payments during April and May of 1985. The court ordered defendant to produce a job application diary and evidence of the status of his appeal from his termination from his job and continued the matter to June 10, 1985.
On June 10 defendant was not present in court. The court ordered defendant, through his attorney, "to bring back [his] Job Diary," and continued the cause to August 19, 1985. The court further ordered defendant to appear on that date or it would issue a writ of attachment.
On August 19, 1985, the court issued an attachment order, which it then quashed and recalled on motion of defendant's attorney, who explained that defendant was hospitalized. The ...