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In re marriage of Steinberg

November 12, 1998


The opinion of the court was delivered by: Justice Cahill

Appeal from the Circuit Court of Cook County

No. 89 D 10542

Honorable Moshe Jacobius, Judge Presiding.

We address an appeal and cross-appeal that raise several issues in the interpretation and continuing enforcement of child support agreements. We affirm the trial court in all rulings but one: a finding that interest on child support payments is mandatory. We disagree and reverse that part of the trial court order, remanding for consideration consistent with this opinion.

Barbara Steinberg (petitioner) and Forrest Ingram (respondent) were divorced on July 10, 1989. An agreement about child support was included in the judgment of dissolution. In 1994, and again in 1996, petitioner sought to have respondent held in contempt for failing to comply with parts of that agreement. On October 12, 1994, respondent was held in contempt for failing to disclose his tax returns. On October 15, 1996, he was held in contempt for failing to pay child support. However, the trial court denied that part of petitioner's motion for a rule to show cause why respondent should not be held in contempt for nonpayment of "special activities," including music lessons, music camps and a bat mitzvah.

At the 1996 contempt proceedings, respondent moved to compel petitioner to return money paid under a part of their settlement agreement in which respondent promised to give petitioner half the legal fees he earned in Ross v. United States, 86 C 5882 (Ross). The trial court denied the motion.

Respondent appeals both contempt orders and the denial of his motion for return of fees earned in the Ross case. Petitioner cross- appeals the trial court's refusal to hold respondent in contempt for failure to pay for their daughter's "special activities."

Before we consider the substantive issues, we address two jurisdictional issues before us. Respondent asserts that the trial court lost jurisdiction to enforce the original July 10, 1989, judgment of dissolution so that all subsequent orders based on that judgment are void. Respondent relies on section 12-108(a) of the Code of Civil Procedure (735 ILCS 5/12-108(a) (West 1996)). Section 12-108(a) states: "Except as herein provided, no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by Section 2-1601 of this Act." 735 ILCS 5/12-108(a) (West 1996).

Respondent argues that until section 12-108(a) was amended in 1997 (Pub. Act 90-18, §90, eff. July 1, 1997), child support judgments were not excepted from this statute. We disagree. Even before section 12- 108(a) was amended, we had held that a trial court retains continuing jurisdiction over child support matters. See In re Marriage of Homan, 126 Ill. App. 3d 133, 466 N.E.2d 1289 (1984). In Homan we rejected an argument that a dissolution judgment is unenforceable after seven years under Illinois law. We held that the court had jurisdiction of a claim for child support arrearage made more than eight years after the judgment of dissolution.

We next address respondent's argument that a trial court order entered on June 3, 1998, while this appeal was pending, divested this court of jurisdiction. The June 1998 order declared the October 15, 1996, order "null and void" and granted petitioner leave to file a motion to revive the judgment. The June 3, 1998, order was not appealed and is not part of the record. Respondent suggests that the June 3, 1998, order remains intact, since "jurisdictional issues can be raised at any time." We disagree. "Upon filing a notice of appeal, the trial court is divested of jurisdiction to enter any order involving a matter of substance ***." In re Marriage of Sawyer, 264 Ill. App. 3d 839, 850, 637 N.E.2d 559 (1994). The trial court retains jurisdiction to decide matters independent of and collateral to a judgment, but is restrained from entering an order that would modify the judgment or its scope. Sawyer, 264 Ill. App. 3d at 850. The June 1998 order entered by the trial court after respondent filed his notice of appeal was entered without jurisdiction and has no effect on the October 15, 1996, judgment or on this appeal.

We next address respondent's substantive challenges to the trial court's contempt orders. Respondent argues: (1) the trial court erred in finding him in contempt for failure to disclose tax returns; (2) the child support provision, expressed as a percentage of respondent's income, is unenforceable; (3) the agreement was not clear enough to notify respondent what conduct constitutes contempt; (4) the trial court's finding that respondent willfully disobeyed the court's order was against the manifest weight of the evidence; (5) petitioner is estopped from seeking child support arrearage; (6) the trial court erred in relying on the testimony of petitioner's expert to calculate arrearage; (7) the trial court erroneously ruled that interest on the judgment is mandatory; and (8) the trial court erred in denying respondent's motion for return of fees paid to him for the Ross case.

The parts of the child support agreement relevant to this appeal are as follows:

(1)Article II, paragraph 2: "Husband agrees to and shall pay directly to Wife the sum of $850.00 per month, as and for child support, the same to commence upon the execution of this Agreement and to continue thereafter until as hereinafter set forth ***. *** Said payments are based on Husband's gross annual income of approximately $71,000.00 and net annual income of approximately $48,000.00." (2)Article II, paragraph 3: "In the event that the Husband's annual income increases, Husband agrees to increase proportionately his support of the minor child so that his child support payments will never be less than 20% of his net annual income. Conversely, in the event that Husband's annual income decreases, Wife agrees to accept a proportionate decrease in his support of the minor child, as long as that decrease never goes below 20% of Husband's net annual income or $600.00, whichever is greater. The increase or decrease shall be determined in accordance with the following procedure: The parties shall submit to each other true and accurate copies of each one's Federal Income Tax Returns and all W-2's and 1099's, within 15 days after each has filed said Return. If there has been any increase or decrease in Husband's income during the previous year, child support for that year shall be proportionately adjusted to reflect such change and said adjusted sum shall thereupon be allocated over the balance of the calendar year. Husband will then continue for that year to pay child support based on the increased or decreased income."

(3)Article II, paragraph 6: "The parties have agreed to share equally the costs of special activities in which the minor child is a participant and to which both parents have agreed. Such agreement should not be unreasonably withheld by either party. Examples of such activities are:

a.Summer camp.

b.Music lessons.

c.Religious school ...

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