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Colangelo v. Sebela

January 18, 2005

IN RE MARRIAGE OF JULIUS COLANGELO, PETITIONER-APPELLEE,
v.
VICKI D. SEBELA, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 01-D-0036. Honorable Dorothy F. French, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

PUBLISHED

In post-dissolution proceedings, respondent, Vicki D. Sebela (Vicki), appeals (1) an order denying her petition for a rule to show cause against petitioner, Julius Colangelo (Julius); and (2) an order granting summary judgment to Julius (see 735 ILCS 5/2--1005(c) (West 2002)) on Vicki's petition to increase child support Vicki argues that the trial court erred in deciding that, as a matter of law, (1) Julius's stock bonuses were not income for purposes of calculating child support (see 750 ILCS 5/505(a)(3) (West 2002)); and (2) there had been no substantial change in circumstances since the dissolution judgment (see 750 ILCS 5/510(a)(1) (West 2002)). We reverse both the order denying Vicki's petition for a rule to show cause and the grant of summary judgment on Vicki's petition to increase child support. We also remand the cause.

The parties married in 1988 and have an adopted son, Ethan, born in 1999. On September 9, 2002, the trial court dissolved the marriage. At that time, Julius worked for Navigant Consulting, Inc. (NCI), earning $147,500 annually. Vicki was a full-time homemaker who wrote a newspaper column, earning $840 annually. The trial court divided the marital property with the intent to award 48% to Julius and 52% to Vicki. As pertinent here, Julius received 50% of the net value of vested stock options in NCI "if & when *** exercised" and 100% of unvested stock options in NCI. Because the vested and unvested stock options had yet to be exercised, the judgment listed their value as "unknown." In all, Julius's share of the marital property was valued at $152,777 plus his 50% share of the vested stock options and his 100% share of the unvested stock options. Vicki's share of the marital property was valued at $164,264 plus her 50% share of the vested stock options.

The parties received joint custody of Ethan, with Vicki the "primary residential parent." Julius was ordered to pay monthly child support of $1,656, which was 20% of what the court calculated as his net monthly income (see 750 ILCS 5/505(a)(1) (West 2002)). Also, the court ordered Julius to pay, as child support, "20% of net of any bonus/commission/overtime received."

On October 28, 2003, Vicki filed two pleadings. The first, a petition to increase child support, alleged that Julius's W-2 form for 2002 showed that the dissolution judgment was based on a miscalculation of his net income. The petition also alleged that, in 2003, federal tax rates had declined substantially, while federal tax deductions for dependent minors had increased. Finally, according to the petition, since the dissolution, Vicki's child-related expenses had increased.

The second pleading, a petition for a rule to show cause, had two counts. Count I alleged that, since the dissolution, Julius had received 2,286 shares of NCI stock under a "value sharing compensation agreement"; that the shares were income of which Julius owed 20% as child support; and that Julius had refused to pay any of this amount. Count II alleged that, late in 2002, Julius received a cash bonus from NCI; that, as a result, he owed extra child support; and that he had paid only part of what he owed. Vicki claimed that Julius was in contempt for refusing to pay any child support based on the 2,286 shares of NCI stock and for underpaying the bonus-based support.

Julius filed a response to the petition for a rule to show cause. In answering count I, he asserted that the receipt of the NCI stock resulted from his exercise of the unvested stock options that he had received under the dissolution judgment and that had since become vested. Thus, the 2,286 shares were marital property that had, in essence, already been allocated to him. Julius reasoned that because the unvested options were his property, the distributions resulting from an exercise of the options could not also be income. Responding to count II, Julius asserted that he had paid Vicki the full amount of bonus-based child support.

On November 10, 2003, the trial court ruled on Vicki's petition for a rule to show cause. The court denied Vicki any relief on count I. The court's only basis for its ruling was that the unvested stock options were marital property and, therefore, could not, when realized, be considered income for child support purposes. With regard to count II, the court ruled in Vicki's favor and ordered Julius to pay additional child support that was related to the cash bonus.

On November 20, 2003, Julius moved to dismiss the petition to increase child support (see 735 ILCS 5/2--615 (West 2002)) or to grant summary judgment to him on it. Julius argued that there had been no substantial change in circumstances since the dissolution judgment (see 750 ILCS 5/510(a) (West 2002)). Specifically, Julius asserted, his W-2 forms proved that his base salary was still $147,500 a year. Also, while he had received bonus income in the interim, Vicki had received 20% of the net amount as child support. Julius next argued that the trial court's original calculation of his net income was correct. Finally, he maintained that, although federal tax rates had decreased since the dissolution, any effect on his taxes was negligible. As support for his contention, Julius claimed that a table for 2003, prepared by a commercially available computer software program that, in part, computes child support and taxes, and a table that the court used in crafting the dissolution judgment in 2002, produced by the same commercially available software program, showed that child support would increase only 3.2%. Julius's motion was not notarized, attached no affidavits, and did not purport to authenticate the attached copies of the tables.

On December 16, 2003, after a short hearing, the trial court denied Julius's motion to dismiss the petition for increased child support but granted summary judgment to him on the petition. The court observed that the dissolution judgment stated that Julius's yearly salary was $147,500 and that Vicki had admitted that he was still receiving that salary. Also, the change in federal tax rates was irrelevant because the dissolution judgment was not based on "actual taxes" and, even had it been, Vicki had produced no evidence of a substantial change in circumstances.

On January 15, 2004, Vicki filed a notice of appeal, from the order of November 10, 2003, denying her petition for a rule to show cause and the order of December 16, 2003, granting summary judgment to Julius on her petition to increase child support.

Julius argues that we lack jurisdiction to consider any challenges to the order denying Vicki's petition for a rule to show cause. We disagree. The trial court denied Vicki's petition on November 10, 2003. However, Vicki did not file a notice of appeal from this order until January 15, 2004. The timely filing of a notice of appeal is mandatory and jurisdictional. 155 Ill. 2d R. 301; In re Estate of Kunsch, 342 Ill. App. 3d 552, 553 (2003). Under Supreme Court Rule 303(a)(1), an appeal from a final judgment in a civil case must be filed within 30 days of the entry of the judgment appealed or within 30 days after the entry of the order disposing of the last timely pending postjudgment motion. See 155 Ill. 2d R. 303(a)(1). Vicki argues that the order was not final because it left her petition for increased child support pending and did not include language allowing an immediate appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Rule 304(a) applies "[i]f multiple parties or multiple claims for relief are involved in an action." 155 Ill. 2d R. 304(a).

A final judgment terminates the litigation between the parties on the merits or disposes of the parties' rights with regard to either the entire controversy or a separate part of it. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998). The word "claim," as used in Rule 304(a), means "any right, liability or matter raised in an action." Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990). The test for determining whether the order from which a party attempts to appeal pursuant to Rule 304(a) constitutes a final order on a claim is "whether the order appealed from constitutes a final ...


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