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04/30/87 In Re Marriage of Julie A. Betts

April 30, 1987

IN RE MARRIAGE OF JULIE A. BETTS, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

JOHN A. BETTS, Respondent-Appellant

507 N.E.2d 912, 155 Ill. App. 3d 85, 107 Ill. Dec. 759 1987.IL.570

Appeal from the Circuit Court of Ford County; the Hon. William T. Caisley, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The respondent-husband in this appeal was adJudged in contempt of court on July 25, 1986, for failure to pay back-due child support. He was sentenced to six months in jail, but was allowed to purge himself by paying $12,950, the entire amount set in arrearages by the court.

Respondent raises several points on appeal, generally contesting the propriety of the alias order for rule to show cause served upon him, the manner and method of that service, the trial court's denial of his motions for a continuance and to change Judges, the contempt finding itself, the amount assessed in arrears by the court, the court's purging order, and the purported failure of the court to appoint counsel on his behalf. We shall endeavor to take up each of these issues in the chronological order in which they arose below.

Initially, though, we must deal with the petitioner's two separate motions to strike the brief and reply brief of the respondent. Should these motions be of merit, dismissal may be warranted.

Petitioner's motions to strike essentially depict the respondent's briefs as replete with assertions of fact and law "made without requisite citation of authority or record" as called for under Supreme Court Rule 341(e)(7) (103 Ill. 2d R. 341(e)(7)). Petitioner also attacks the briefs as "replete with unsubstantiated allegations" of fact in violation of Rule 341(e)(6) (103 Ill. 2d R. 341(e)(6)). These separate motions, however, make no express reference to specific issues or statements contained in the respondent's briefs which petitioner believes are in noncompliance with a supreme court rule. Rather, the motions contain general statements, without direction, as to why petitioner advances "portions" of the briefs should be stricken.

Supreme Court Rule 341 delineates the general limitations and requirements for filing appropriate briefs in the appellate courts of this State. Subsection (e)(6) provides the statement of facts "shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." (103 Ill. 2d R. 341(e)(6).) Concerning the argument section of an appellant's brief, subsection (e)(7) states it "shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." 103 Ill. 2d R. 341(e)(7).

Reviewing the respondent-appellant's briefs, it is true they represent disjointed, highly argumentative exercises in appellant advocacy. The factual points alluded to are incomplete and only selectively incorporated. Moreover, certain facts represented to us are clearly not of record, including a claimed "apparent heart attack" suffered by the respondent during the hearing or while in jail afterward. Most disconcerting of all are respondent's varied assertions questioning the integrity of the proceedings below. In this vein, respondent accuses the trial Judge, the clerk of the court, and the petitioner's attorney of all contributing to the making of false and misleading entries in the court file.

Certainly the respondent, a suspended attorney acting pro se, could have presented a more responsible, articulate, coherent brief. Nevertheless, where none of the purported violations of supreme court rules are so flagrant as to hinder or preclude review, then either the striking of a brief or the dismissal of an appeal is generally unwarranted. (Gallo v. Henke (1982), 107 Ill. App. 3d 21, 25, 436 N.E.2d 1068, 1070.) Although respondent's compliance with Supreme Court Rule 341 is minimal, we deem it sufficient to allow us to review the merits of this appeal. Petitioner's motions to strike the respondent's brief and reply brief are denied.

Again, this matter comes before us upon a petition for rule to show cause alleging failure to pay child support during the years 1984, 1985, and 1986. As background, the original petition for dissolution of marriage was filed by the petitioner, Julie Betts, on March 26, 1982. The case was ultimately assigned to Judge William T. Caisley of the circuit court of Ford County.

On September 15, 1982, Judge Caisley entered a judgment of dissolution of marriage providing in part that respondent was to pay petitioner $35 per week per child in child support. Such payments were to be made directly to the clerk of the court. The written judgment order further provided child support was awarded based upon respondent's average gross monthly income of $1,522.50. The court by order also expressly retained jurisdiction over the parties.

No further court activity occurred between the parties until January 29, 1986, when Julie Betts filed a petition for rule to show cause why respondent should not be held in contempt for failure to pay child support during the calendar years 1984 through 1986. The petition was initially assigned to Judge W. Mark Dalton, who felt it necessary to recuse himself due to prior adversary proceedings with the respondent. The matter was then assigned to Judge Charles E. Glennon, who also recused himself from hearing the petition. Finally, the case was assigned to Judge Caisley, the Judge who had originally presided over the dissolution of marriage proceedings during 1982.

The petition for rule to show cause was granted by Judge Caisley, with subsequent orders issued on several occasions throughout the first half of 1986. Respondent was never served during this time.

Finally, an alias order was filed on June 27, 1986, directing that respondent appear in court on July 25, 1986, to show cause why he should not be held in contempt. According to the return of service, a copy of the alias order was served upon the respondent on July 18, 1986, by Captain Kenneth Muchmore of the Paxton police department. Although filed with the court on July 21, 1986, that alias order reflected a handwritten entry date of July 24, 1986. The rule to show cause hearing was then in fact held before Judge Caisley on July 25.

Much of respondent's argument concerns this allegedly "post-dated" alias order. Respondent essentially contends that the court file is in dispute because the alias order in question, served on July 18, 1986, and filed on July 21, could not have been signed on July 24 as indicated. Respondent thus contests the propriety of an alias order he believes was served before it was signed.

We conclude instead that some sort of clerical oversight or error allowed the order to go out signed with a July 24 date, when in actuality it was prepared and issued as of June 24. The record contains a June 24 docket entry granting issuance of a rule to show cause. A letter from counsel for the petitioner to the court reflecting enclosure of the alias order is also dated June 24.

Our review of the record further reveals two identical alias orders on file. The first, filed on June 27, 1986, is not the one served on the respondent. That order, signed by Judge Caisley, was originally dated in handwriting to reflect entry on July 24, 1986. However, the word "July" has been struck out and the word "June" written over it. The second order is the one actually served on the respondent. Filed with the court on July 21, 1986, to reflect return of service, the order was also signed by the Judge with a July 24, 1986, date of entry.

From this we believe the July 24 date on the alias order is in all probability a mere scrivener's error. Once the oversight was realized, the date on the copy of file was changed to reflect entry on June 24. Further, Judge Caisley expressly stated during the July 25 hearing that he signed the alias order on June 24 and ordered the rule amended to show entry as of that date.

Respondent still insists that if the alias order was mailed out by counsel for the petitioner on June 24, then Judge Caisley could not possibly have received and signed it the same day. Respondent, however, fails to consider the possibility that the order could have been personally presented to the court instead. In sum, we perceive no prejudice inuring to the respondent in this regard. No "post-dated" alias order problem exists here.

Respondent next argues that actual service of the alias order was improper, thereby vitiating any subsequent proceedings. The return indicates service was effectuated by a Paxton police officer. Section 2-202 of the Code of Civil Procedure (Code) concerning persons authorized to serve process (Ill. Rev. Stat. 1985, ch. 110, par. 2-202) essentially contemplates service be made by a sheriff of the county or, if the sheriff is "disqualified," by a coroner of any county. (Ill. Rev. Stat. 1985, ch. 110, par. 2-202(a).) That section further provides a court may, at its discretion and upon a motion, allow service to be made by a private person over 18 years of age who is not a party to the action. (Ill. Rev. Stat. 1985, ch. 110, par. 2-202(a).) Respondent urges that, according to section 2-202, the trial court should have issued an order authorizing someone other than a member of the sheriff's office to effectuate service. Since there is no order for a special process server, respondent concludes service completed by a Paxton police officer rather than a county sheriff's officer is improper.

Petitioner counters that respondent failed to object to the manner of service before the court below and has thereby waived the issue. As a second justification for upholding service, petitioner asks this court to take judicial notice of her claim that Captain Muchmore, the process server, also acts as a part-time deputy sheriff for Ford County in addition to his duties as a Paxton police officer.

We initially decide this issue on the basis of waiver. At no time below, either by his motion to quash, his special and limited appearance contesting jurisdiction of the court, or during the July 25 hearing, did respondent specifically object to the manner of service. The motion to quash, for example, concentrates on what respondent considered illegal service due to a "post-dated" alias order. There are also no post-judgment ...


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