Appeal from Circuit Court of Champaign County No. 97SC804 Honorable Donald R. Parkinson, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
In March 1997, the trial court entered a judgment for plaintiff, Business Service Bureau, Inc. (Bureau), against defendant, Rodney Martin, for unpaid medical expenses plus costs and interest. Supplementary proceedings to discover assets followed, and in September 1998, the trial court ordered defendant, who (according to his affidavit) is unemployed and has no assets, to search for employment. After a hearing in November 1998, the trial court denied a motion to vacate the job search order and entered a Rule 304(a) finding of no just reason to delay enforcement or an appeal. 155 Ill. 2d R. 304(a).
Martin appeals, arguing that the trial court erred in its application of section 2-1402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1402 (West 1996)) because (1) the order forces him to spend his wife's exempt income to search for a job, violating section 2-1402(j) of the Code (735 ILCS 5/2-1402(j) (West 1996)); (2) section 2-1402 deals with discovery of assets, not creation of assets; (3) the job search order is inappropriate because section 2-1402(c) provides for orders intended to compel collection of discovered assets, not asset creation; and (4) the job search order is unconstitutional under the thirteenth amendment (U.S. Const., amend. XIII), as well as a violation of due process (U.S. Const, amend. XIV; Ill. Const. 1970, art. I, §2) and the right to privacy (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6). We vacate the job search order and remand.
In March 1997, a civil judgment was entered against defendant for $4,483.73 plus costs and interest. In March 1998, the circuit clerk issued a citation to discover assets. Also in March 1998, the trial court denied Martin's motion to quash the citation and continued the hearing until April 1998.
The docket entry for the April 1998 hearing provides in pertinent part:
"The Defendant is sworn; evidence is heard. The Defendant is ordered to provide a doctor's letter to counsel indicating the length and/or whether permanent or temporary. Representation he has pending disability claim. Case continued for further review to 6-9-98 ***."
According to the docket entry for the June 1998 proceeding, defendant informed the court that he was denied disability status and was appealing his claim. Defendant also represented that he was seeking employment through temporary employment services. Again, the citation hearing was continued until September 1998.
The docket entry for the September 1998 hearing states the following:
"Sherman Brown appears on behalf of the Plaintiff. Defendant appears with Mr. Drake and Mr. Bell. Consent to representation by senior law student on file. Over the objection of counsel, Defendant ordered to file job affidavits biweekly with counsel's office. Cause continued for further review to 10-15-98, at 10:30 a.m., in Courtroom L."
In October 1998, counsel for defendant filed a motion to vacate the job search order, supported by a memorandum of law and defendant's affidavit. By affidavit defendant stated the following: (1) at the September hearing, he testified to the truth of the enumerated facts, including that he is unemployed and his appeal on his disability status is pending; (2) at the Conclusion of the September hearing, the court ordered him to return in October "with a list of at least  places for every week where [he] had sought employment since the status hearing"; (3) his wife receives approximately $478 per month in social security benefits and $400 per month from employment; (4) his wife suffers from epilepsy and mild mental retardation, and is prone to seizures, especially when under stress; (5) she has recently been the victim of a crime and is enduring the prosecution of the perpetrator; (6) for these reasons he has been unable to seek and secure employment as he must remain home to assist his wife; and (7) he has no assets or nonexempt income and no desire to secure employment.
After a hearing in November 1998, the circuit court denied Martin's motion to vacate, stating in part:
"The fact that a job search order is not specifically mentioned in the statute [section 2-1402] is of no import whatsoever. Judges are free and have been[,] and that's consistent with our authority[,] to fashion any orders that they believe are helpful and beneficial. By no means [has] the legislature in their nine volumes plus two for the updates don't think they've covered everything. I'm sure it'll be up to ten volumes by another two years from now when they start passing some other laws and they don't think [sic] they have it all covered, so the fact that it is not specifically mentioned doesn't mean the Judge can't talk about it or can't order it if it's appropriate [and] consistent with the legislative purpose of the statute[,] which is a citation of judgment[,] to see what can be done about paying it, which is the Court's responsibility to follow up on these things and see what individuals have done." Accordingly, the trial court denied defendant's motion to vacate and this appeal followed.
At the outset, we note that the record before us consists of the transcript of the November 1998 hearing on the motion to vacate the trial court's September 1998 job search order and the common law record of pleadings and docket entries. Defendant failed to file bystander's reports or agreed statements of facts of earlier proceedings, including the April 1998 hearing at which the trial Judge heard the defendant testify, the June 1998 hearing, and the September 1998 hearing at which the job search order that is the subject of this appeal was pronounced. See 166 Ill. 2d Rs. 323(c), (d). Although defendant's affidavit suggests he testified at the September hearing, the docket entry makes no reference to evidence being taken. Further, we note that the trial Judge's wording in pronouncing the job search order is not part of the record before us. We recognize this is a small claims case.
We first consider defendant's argument that the job search order is not statutorily authorized. Section 2-1402 of the Code, governing supplementary ...