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Earles v. Earles

September 02, 2004

CARLA A. EARLES, PLAINTIFF-APPELLANT,
v.
TRACY E. EARLES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 21st Judicial Circuit Kankakee County, Illinois No. 92-D-48. Honorable Michael J. Kick, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

PUBLISHED

Plaintiff, Carla Earles, filed a motion to increase child support and a petition for rule to show cause relating to child support arrearages against her former husband, defendant, Tracy Earles. Tracy then requested a hearing on a petition to modify child support that had been previously filed. On July 9, 2002, the circuit court of Kankakee County entered an order granting Tracy's petition to modify child support and denied Carla's petition to increase child support. The same order found Tracy in contempt for willful failure to pay child support and continued the case for sentencing on Tracy's contempt. A sentencing hearing was held on July 29, 2002, but a written order on the contempt citation was not issued until August 28, 2002. Carla, within 30 days of the August 28 order, filed a motion to reconsider the July 9 order. Tracy filed a motion to strike and dismiss Carla's motion for reconsideration claiming it was untimely. The circuit court found that Carla's motion to reconsider was untimely and, therefore, it lacked jurisdiction to modify the July 9, 2002, order. Carla appeals.

BACKGROUND

Carla and Tracy divorced on April 7, 1992. The judgment of dissolution provided that Carla would have custody of their two minor children. It further provided for Tracy to pay $200 in child support per week.

After losing his job in 1997, Tracy was unable to meet his child support obligation. In February 1998, Tracy filed a pro se petition to modify child support requesting that the court reduce his payment to $212 every other week. No order was entered on this request for modification. Furthermore, Carla was never served with notice of the petition. Eventually, Tracy reduced his child support payments from $200 per week to $210 every other week. The parties dispute whether this reduction was unilateral or consented to by Carla in a telephone conversation.

On November 30, 2001, Carla filed a petition for rule to show cause why Tracy should not be held in contempt for failure to pay child support at the rate of $200 per week. Carla also filed a motion to increase child support.

The petition for rule to show cause alleged that Tracy had failed to pay child support as ordered by the judgment of dissolution and was $21,500 in arrears. The motion to increase child support alleged that there had been a substantial change in circumstances in Tracy's income and an increase was necessary to bring his payments to 25% of his higher income.

On January 14, 2002, Carla received notice of Tracy's renewal of his 1998 petition for modification. Carla filed a motion to strike the 1998 petition on January 24, 2002. After a hearing, the court entered a written order on July 9, 2002, stating:

"A. That Judgment is granted in favor of Plaintiff and against Defendant in the amount of $7,530.24, plus interest,

B. That Defendant is in contempt of this Court for the willful failure to pay child support in the amount of $7,530.24,

C. That Defendant's Petition to Modify is allowed, and Defendant's child support payment is modified to $168.00 beginning April 16, 2002,

D. That Plaintiff's Petition to Increase is denied,

E. That this case is continued for sentencing on the finding of Defendant's contempt to ...


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