Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

01/31/96 BENITA GAY v. ROGER W. DUNLAP

January 31, 1996

BENITA GAY, AS PARENT AND GUARDIAN ON BEHALF OF JAVARIUS GAY, A MINOR, PLAINTIFF-APPELLANT,
v.
ROGER W. DUNLAP, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County. No. 93L1633. Honorable Donald R. Parkinson, Judge Presiding.

As Corrected February 6, 1996.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J., Concurring, Honorable Robert W. Cook, P.j., Concurring IN Part; Dissenting IN Part

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

In December 1993, plaintiff Benita Gay commenced this action for adjudication of paternity and child support. In August 1994, the circuit court of Champaign County found defendant Roger D. Dunlap to be the father of Javarius Gay, born May 20, 1992, by Benita Gay. The issues of support and reimbursement were tried thereafter and on November 16, 1994, the trial court ordered defendant to pay $300 per month in child support. Plaintiff appeals from the trial court's ruling, i.e., certain of defendant's expenditures constituted "repayment of debts that represent reasonable and necessary expenses for the production of income" which may be deducted from his "net income" in determining how much child support he must pay. (750 ILCS 5/505(a)(3)(h) (West 1992).) Defendant has filed a motion to dismiss the appeal as untimely. We deny defendant's motion and reverse and remand in part.

The trial court accepted defendant's affidavit, which listed his 1993 monthly net income as $1,371 per month. (The figure was apparently misread because the trial court used $1,361 (not $1,371) as the base for child support.) The 20% statutory guideline for child support for one child based on net income of $1,361 per month is $262.20 per month. The trial court opted to raise this to $300 per month and made the award retroactive for 10 months.

Defendant's tax returns listed gross income as $31,703. He paid $3,673 in tax (self-employment tax of $2,325, Federal income tax of $945, and-State income tax of $403). Subtracting taxes from gross income leaves $28,030. From this, defendant subtracted $10,500 in car expenses and $1,075 in entertainment expenses (a total of $11,575), leaving $16,455 net income. Dividing $16,455 per year by 12 months gives a resultant net income per month of $1,371.25. The $10,500 of car expenses includes $577 per month (or $6,924 for the year) to lease a 1993 Mercedes.

The court's November 16 order has an "x" in the box which indicates the issues of medical reimbursement and retroactive support are to be reserved, but a heavy line has been drawn through the "x." There is also an "x" in a box next to a statement indicating the cause was to be continued generally. The written order does not contain any language indicating there is no just reason for delaying enforcement or appeal.

Plaintiff filed a motion to reconsider on November 29, 1994. Arguments on the motion were heard and denied on January 9, 1995. At the hearing, defendant moved to dismiss plaintiff's request for medical reimbursement citing res judicata. The court denied the motion to dismiss, stating "the items are reserved, until they are brought up." The court continued the issue of medical reimbursement until March 31. On March 31, the request for medical reimbursement was denied because plaintiff offered no testimony on the issue. Plaintiff filed this appeal the same date, March 31, 1995.

Parties have 30 days from a final judgment to file an appeal. When a timely post-trial motion has been filed, the 30 days begin to run only from the trial court's disposition of the motion. (155 Ill. 2d R. 303(a)(1).) In this case, the trial ended on November 16, 1994, at which time the trial court made an oral finding there was "no just reason to delay enforcement of further appeals in this case" (155 Ill. 2d R. 304(a)), which was recorded on the docket sheet. The written order did not include such a finding.

A timely post-trial motion to reconsider was filed. It was denied on January 9, 1995, with the court continuing the issue of medical reimbursement until March 31, 1995. On January 9, the court admitted it was "questionable," in its mind, whether there was a "final and appealable order" with respect to the matters on which the court had already denied the motion to reconsider. On March 31, the court denied the request for medical reimbursement, and this appeal was filed that same day.

Defendant claims this appeal must be dismissed as untimely because the order of November 16 was a final order, disposing of all claims and parties, and the appeal was not filed within 30 days of the January 9 denial of the motion to reconsider.

Supreme Court Rule 304(a) allows appeals from orders which do not dispose of all parties and issues if the court makes "an express written finding that there is no just reason for delaying either enforcement or appeal or both." (Emphasis added.) (155 Ill. 2d R. 304(a).) The docket sheet entry does not suffice; the language must be present in the written order. Thus, since the court did not make an explicit written finding stating the November 16 order was final for purposes of appeal, no appeal had to have been filed until 30 days after March 31 unless the order of November 16 did in fact dispose of all issues and parties, in which case the appeal would have to have been filed within 30 days of January 9, the date on which the motion to reconsider was denied.

The language the trial court used is not determinative of whether the order completely disposed of all issues and parties so an appeal had to be filed within 30 days thereof. (In re Estate of Devey (1993), 239 Ill. App. 3d 630, 632, 607 N.E.2d 685, 686, 180 Ill. Dec. 616.) A judgment is not final unless all which remains to be done, if the judgment is affirmed on appeal, is to execute it. ( Devey, 239 Ill. App. 3d at 632, 607 N.E.2d at 686.) A paternity ruling is not final for purposes of appeal until the circuit court has ruled on requested relief which is "directly tied to a finding of paternity, such as child support and birth expenses." People ex rel. Driver v. Taylor (1987), 152 Ill. App. 3d 413, 415, 504 N.E.2d 516, 517, 105 Ill. Dec. 416.

The trial court believed it had not disposed of all issues, specifically the issue of medical reimbursement, since it continued the case for a hearing thereon until March 31. It admitted on January 9 it was unsure of whether there was a "final appealable order." We conclude there was not, especially in light of the notation on the written order stating the case was to be continued "generally." The trial court did not make the requisite Rule 304 finding, and the case was not completed until March 31, the day on which the appeal was filed. Defendant's motion to dismiss the appeal as untimely is denied.

As this court noted in Driver, "[f]orm orders which reserve issues or make reference to issues that may no longer exist cause mischief and confusion." ( Driver, 152 Ill. App. 3d at 415, 504 N.E.2d at 518.) Overcrowding of the courts makes it difficult for trial courts and counsel to take the time to attend to what might seem to be minutiae. It takes more time to draft an order specific to each case than to use form orders and simply check the appropriate boxes. Consequences of mistakes or ambiguities in the record, whether involving form orders or otherwise, can be severe for the parties involved. Here it provided the threshold issue whether the appeal was timely filed. On the merits our interpretation of the statute in question will result in a more accurate determination of the net income of noncustodial parents. This will not only affect the rights and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.