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11/09/89 In Re Marriage of Lynden Harper

November 9, 1989

IN RE MARRIAGE OF LYNDEN HARPER, PETITIONER-APPELLANT, AND


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

TERRY J. HARPER, n/k/a Terry J. Palumbo,

Respondent-Appellee

547 N.E.2d 574, 191 Ill. App. 3d 245, 138 Ill. Dec. 407 1989.IL.1767

Appeal from the Circuit Court of Piatt County; the Hon. John P. Shonkwiler, Judge, presiding.

APPELLATE Judges:

JUSTICE STEIGMANN delivered the opinion of the court. LUND, J., concurs. JUSTICE GREEN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN

In February 1989, petitioner filed a petition to set child support, and a hearing thereon was conducted in March 1989. At the hearing, the trial court noted that it had received and considered detailed financial affidavits of the parties as well as the testimony presented at the hearing; the trial court thereafter fixed child support payments in the sum of $50 every two weeks.

Petitioner appeals, alleging (1) the trial court erred in setting child support payments below the recommended statutory minimum without, as required by section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)), providing written findings for departing from those guidelines, and (2) the trial court erred in ordering child support in the amount of only 11% of respondent's net income.

We disagree and affirm.

The record makes clear that petitioner at no time called to the attention of the trial court its alleged failure to make express findings explaining the reasons for its departure from the recommended statutory minimum percentage. In the absence of petitioner's having done so, we decline to address this issue for the first time on appeal. Were we to do so, this case might be remanded with directions to the trial court to provide written findings in accordance with section 505(a). The trial court might then make those findings, certify them back to this court, and we might then find them to be entirely appropriate. It is even possible that plaintiff initially might have chosen not to pursue this appeal based upon the trial court's findings. The point is that judicial resources were wasted by plaintiff's appeal of this issue. This waste of resources could have been avoided had plaintiff, at the time the trial court rendered its decision or within 30 days thereafter, but asked for the written findings to which he claims to be entitled. (See In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279 ("The general rule is that questions not raised in the trial court are deemed waived and cannot be argued for the first time on appeal").) Instead plaintiff brings this appeal.

We disagree with the Dissenting opinion that our holding contravenes the provisions of Supreme Court Rule 366(b)(3)(ii) (107 Ill. 2d R. 366(b)(3)(ii)) by, in effect, requiring the filing of a post-trial motion in this non-jury civil proceeding. Instead, we view petitioner's first argument as an attack on the procedures employed by the trial court in reaching and explaining its judgment, not an attack on the judgment itself. Petitioner's second argument attacks the judgment and, consistent with Rule 366(b)(3)(ii), we consider that argument on its merits later in this opinion.

To say that Rule 366(b)(3)(ii) does not require a post-trial motion in a non-jury civil trial to preserve an issue for appeal is not to say that no objection need ever be raised or called to the attention of the trial court to preserve for appeal alleged procedural deficiencies. In criminal cases, both a timely objection and a timely post-trial motion are required to preserve trial issues for appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Rule 366(b)(3)(ii) eliminates the requirement for a post-trial motion in nonjury civil cases, but does not eliminate the requirement for a timely objection to an alleged procedural error, especially where, as here, that error could have been easily corrected by the trial court.

In the present case, the first time the trial Judge will have this alleged procedural error called to his attention is when he receives a copy of this opinion. We cannot believe that this state of affairs was intended by the ...


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