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In re Marriage of Verstreater

April 2, 2003

IN RE MARRIAGE OF GAIL VERSTREATER, N/K/A GAIL ROACH, PETITIONER-APPELLEE, AND TED VERSTREATER, RESPONDENT-APPELLANT (THE DEPARTMENT OF PUBLIC AID, INTERVENING PETITIONER-APPELLEE).


Appeal from the Circuit Court of Montgomery County. No. 90-D-26 Hon. Dennis E. Middendorff and Hon. Michael R. Weber, Judges, presiding.

The opinion of the court was delivered by: Justice Kuehn

PUBLISHED

This case returns to our court by a supervisory order of the Illinois Supreme Court. On September 24, 2001, we dismissed this appeal because we determined that we lacked jurisdiction to hear it. On February 6, 2002, the Illinois Supreme Court denied Ted Verstreater's petition for leave to appeal but, by supervisory order, directed this court to reinstate his appeal. Verstreater v. Verstreater, 198 Ill. 2d 609, 762 N.E.2d 513 (2002). We address the merits of this case solely on the basis of the Illinois Supreme Court's supervisory order.

In his notice of appeal, Ted Verstreater contends that he is appealing from the trial court's May 21, 2001, order denying his motion to reconsider the October 4, 2000, order which found that he was in arrears on his child support obligations in a total amount of $13,310, that he had the ability to pay, that he was in wilful contempt of court for not paying, and that his posted bond in the amount of $13,000 should be disbursed to apply towards the arrearage. He also appeals from the trial court's June 22, 2001, order denying the State's motion to reconsider the May 21, 2001, order, which in part had stayed the disbursement of the $13,000 bond money pending appeal. We affirm.

Ted Verstreater and Gail Verstreater, now known as Gail Roach, were married in 1985. Their union produced five children. Gail was a homemaker. Ted had a variety of low-paying jobs during the marriage. The marriage began to fall apart, and by 1990, the parties were legally separated. Ultimately, the parties were divorced in 1992. Gail received custody of the five children, and Ted received visitation rights and the obligation to pay child support. Initially, he was ordered to pay $115 per week. Over the years, this child support obligation was modified or abated to reflect various periods of unemployment and/or job changes. There were times when Ted did not make his payments, and orders to show cause were entered. However, from our review of the record, it appears that for the most part, Ted made efforts to meet his child support obligations. From his 1992 divorce until 1999, his child support arrearage totaled $6,372.21, through numerous employment changes. *fn1 In September 1998, Ted filed papers to incorporate, and in January 1999, he opened his own car repair business. His two worst years of child support payments followed the opening of the business. In 1999, he paid only $400 of a $5,200 support obligation, for an additional $4,800 arrearage. The year 2000 did not bring about much change in the frequency of payments, and by the end of August 2000, Ted had only paid $1,440 of a $4,080 obligation, adding another $2,640 to his total arrearage.

Gail was receiving public aid throughout much of this time. Because of the funds that the State of Illinois was paying Gail on behalf of her children and because of Ted's inconsistent support payments, the Illinois Department of Public Aid (Department) filed its petition to intervene in this case. That petition was granted on July 7, 1994.

On September 2, 1999, the Department filed a petition for the adjudication of indirect civil contempt against Ted. The Department asserted that he had wilfully and contemptuously failed to pay child support, with $9,000 in past-due support owed. On October 8, 1999, the trial court ordered Ted to show cause why he should not be held in civil contempt of court for failing to pay this child support. Over the next several months, the Department sought to discover business and tax records from the date of incorporation of Ted's business forward. Ted hired and fired attorneys and ultimately filed a notice of compliance. The Department filed a motion to compel discovery to obtain the documents that Ted had refused to produce, including his 1998 income tax return and all records pertaining to his auto repair business. Slowly, in response to court orders, Ted produced some but not all of the requested documents.

While this discovery process was ongoing, Ted filed a motion to abate his child support obligation. He asked that the court retroactively reduce the amount he owed for weekly child support going back to the fall of 1998, when his employer went out of business.

At a status hearing, with all parties present, the trial court set the hearing on the rule to show cause issued against Ted, for May 18, 2000. As the date approached, a problem with the production of documents needed to present his side of the case caused Ted's attorney to file a motion to continue the hearing. Ted's attorney had previously instructed Ted to appear at the hearing unless otherwise notified. In any event, the trial court denied the motion for a continuance. On the morning of the hearing, his attorney's secretary finally made contact with Ted. Ted advised that he had car trouble and would not be attending this hearing. The trial court issued a body attachment for Ted in the amount of $13,000, with the specific ruling that the entire amount-not just 10%-had to be posted.

Ted was taken into custody pursuant to the bond attachment on May 30, 2000. A friend posted the full amount of the bond the following day. This friend, James Edwards, was advised in writing that the money might not be returned to him even if Ted appeared at every required hearing thereafter. James Edwards later admitted that he was aware that the bond money could be applied to Ted's child support arrearage.

In June 2000, Ted's second attorney asked the court for leave to withdraw from his representation. The motion was granted. Ted hired his present attorney. That attorney filed a motion, on Ted's behalf, seeking the return of the bond money. The trial court thereafter set the show-cause order based on the Department's petition for contempt, Ted's petition to abate, and Ted's motion for the return of his bond money for a hearing on August 28, 2000.

On that date, the court heard evidence on all of these pending matters. There is nothing detailing the evidence presented, and no record was created at the hearing. The docket entry for the date reflects that the trial court denied the motion for the return of the bond money, confirmed that the discovery cutoff had been April 7, 2000, found that Ted had the ability to pay the child support arrearage and that Ted had wilfully failed to pay that support, held Ted in contempt of court, and ordered the $13,000 in bond money to be applied to Ted's outstanding arrearage. The court additionally reduced Ted's support obligation to $78.75 per week retroactive to April 7, 2000, the date upon which he filed the motion to abate. The docket order concluded with a statement that a written order would be forthcoming.

The trial court signed a written order on October 4, 2000, although it was not officially filed with the court clerk until November 3, 2000. The written order essentially tracked the components of the written docket entry made months earlier.

On October 31, 2000, Ted filed a motion to reconsider. Because the motion to reconsider was filed prior to the date when the judgment was filed, the motion to reconsider was untimely filed. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538-39, 470 N.E.2d 290, 292 (1984). Despite the untimely filing, the trial court considered this motion to reconsider, on March 28, 2001. The trial court's decision to consider the motion did not convert the motion into one that was timely filed or otherwise revest the trial court with jurisdiction. See Barth, 103 Ill. 2d at 538, 470 N.E.2d at 291; Sears v. Sears, 85 ...


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