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11/30/89 In Re Marriage of Julie A. Betts

November 30, 1989

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


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

JOHN A. BETTS, Respondent-Appellant

547 N.E.2d 686, 190 Ill. App. 3d 961, 138 Ill. Dec. 519 1989.IL.1854

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Respondent John A. Betts appeals from an order entered July 29, 1988, finding respondent in contempt of court and from an order entered February 24, 1989, denying a motion to reconsider the July 1988 order. Primarily, respondent contends the trial court erred in finding him in criminal contempt of court for failing to comply with a child support order where the order should have been civil contempt. Respondent also urges because he did not receive mail notice of the hearing on the show cause petition, the order is void and should have been vacated on February 24, 1989. For the reasons that follow, we reverse the trial court.

On April 27, 1988, petitioner, Julie A. Betts, filed a petition for rule to show cause against respondent, alleging respondent failed to comply with the December 11, 1987, court order directing respondent to pay $1,200 each semester to Jodie Betts, respondent's daughter, or to Illinois Wesleyan University (University), where Jodie was a full-time student. The petition alleged the first $1,200 installment, due on or before December 31, 1987, was not paid. An order for a rule to show cause was issued May 2, 1988. A show-cause hearing was scheduled for May 6, 1988. An alias order to show cause was issued on May 6, 1988. A second alias order was issued on May 31, 1988, setting a hearing for June 30, 1988. On the court's own motion, the hearing on June 30 was continued to July 29, 1988. Respondent filed a response to the show-cause order on July 29, 1988. The record reflects the respondent was properly served with the second alias order to show cause. The record does not show notice to respondent to appear at the July 29 hearing.

Respondent did not personally appear at the July 29, 1988, hearing. However, respondent's counsel, Kenneth Kozel, appeared. The court found counsel's appearance established that respondent was aware of the hearing, despite the fact written mail notice of the July 29 hearing was not given to the respondent. The evidence established that respondent paid only $1,240 for the 1987-88 school year to the University and received a refund of $155.84 for overpayments made. Respondent paid the aforementioned amount on June 23, 1988, six months after the court-ordered date for payment. At the time of the hearing, no amounts were due and owing the University for the previous school year because a large portion of Jodie's tuition had been paid by various loans and scholarships and by Jodie's employment at the school.

The docket entry in the record for July 29, 1988, reveals the court found respondent "in contempt" of court for failing to make a tuition payment in December 1987. The trial court found respondent's payment on June 23 represented the June 1988 installment and the December 1987 payment remained unpaid. Judgment was entered for petitioner in the amount of $1,315.84, the amount of the arrearage for the 1987-88 school year. Respondent was sentenced to six months in jail, with leave to purge the contempt after 60 days in jail by paying the sum of $1,200 to petitioner for the use and benefit of Jodie.

Respondent appealed to this court on July 29, 1988. The notice of appeal stated respondent was appealing all orders of the trial court entered on July 29, 1988. On August 8, 1988, petitioner filed a motion to stay the incarceration, asserting the jail sentence without a purging provision for the first 60 days was error. On August 26, 1988, respondent filed an amended notice of appeal pursuant to Supreme Court Rule 303(c)(4) (107 Ill. 2d R. 303(c)(4)). The amended notice specified respondent sought to appeal only the money judgment entered for petitioner on July 29, 1988. On the same day the amended notice of appeal was filed, respondent filed a motion in the trial court for reconsideration of the July 29, 1988, order. This court dismissed respondent's appeal on November 29, 1988, for respondent's failure to file a brief. In re Marriage of Betts (4th Dist. 1988), No. 4 -- 88 -- 0561 (order of dismissal).

On February 24, 1989, the trial court heard arguments on respondent's motion for reconsideration of the July 1988 order. Because of the appeal by respondent, the trial court ordered this motion "stricken from the record as not being properly filed." By docket entry, the trial court stated that even if the motion was properly filed, it should be denied "because the respondent was properly held in indirect criminal contempt. . . . For both reasons the motion to reconsider was denied." The court, by its docket order, also stated "warrant of arrest issue . . . be committed to the Ford County Jail to commence serving a term of six months imprisonment imposed upon him for indirect criminal contempt of this court on July 29, 1988." Respondent filed a notice of appeal on February 24, 1989, from the orders of the court entered on February 24, 1989, and those orders entered on July 29, 1988. Execution of the jail sentence was stayed by this court pending this appeal.

Although not argued by the parties, we first consider the effect of respondent's first appeal in July and August 1988, and its dismissal, on the matters presented in the appeal now before us. As noted, by the amended notice in August 1988, respondent sought review of only the money judgment entered for petitioner on July 29. Rule 303(c)(2) allows an appeal from a portion of a judgment. (107 Ill. 2d R. 303(c)(2).) Such appeals are confined to those judgments and orders which are severable because they deal with independent matters. (Kerner v. Thompson (1936), 365 Ill. 149, 154, 6 N.E.2d 131, 133.) The July 29, 1988, orders, which included a judgment civil in nature and a criminal contempt charge, were severable. The principles of res judicata bar respondent from raising any issues regarding the money judgment which was before this court in the first appeal. People v. Mitchell (1981), 95 Ill. App. 3d 779, 791, 420 N.E.2d 415, 424.

As stated, both petitioner and respondent filed motions for reconsideration of the incarceration of respondent. These motions as to the contempt charge were properly before the trial court for hearing on February 24, 1989. (107 Ill. 2d Rules 303(a)(2), (a)(4).) The appeal of the February 24, 1989, orders permits this court to review the court's order of July 29, 1988, finding the defendant in contempt and sentencing him to jail. Although the court's orders of July 29, 1988, and February 24, 1989, as to incarceration do not order the same term of incarceration (on July 29, 1988, respondent was ordered to serve six months, with leave to purge after having served 60 days of his sentence -- on February 24, 1989, ...


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