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In re Parentage of I.I.

Court of Appeals of Illinois, First District, Fifth Division

December 23, 2016

In re PARENTAGE OF I.I., a Minor
v.
Michael Irvin, Respondent-Appellant. Nanina Lavallais n/k/a Carraway, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County. No. 12 D 50214 The Honorable James Kaplan, Judge Presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE.

         ¶ 1 The instant appeal arises from the trial court's grant of Nanina Carraway's petition to modify child support, in which the trial court ordered respondent, Michael Irvin, to increase the amount of child support he was paying from $100 per month to $3000 per month. Respondent appeals, arguing (1) that the trial court erred in denying his motions for a continuance, which resulted in respondent's absence from the second day of the hearing, (2) that the trial court erred in denying his motion to reopen proofs to provide evidence of his income, (3) that the trial court erred in ordering respondent to pay $3000 per month in child support and in ordering the payment of retroactive support, and (4) that the trial court erred in requiring respondent to provide health insurance for the child. For the reasons that follow, we affirm in part but vacate the trial court's judgment concerning the retroactivity of support.

         ¶ 2 BACKGROUND

         ¶ 3 On January 25, 2012, petitioner, Nanina Lavallais (n/k/a Carraway), filed a parentage action under the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2010)) against respondent, Michael Irvin, regarding their child I.I., who was born on July 27, 2007.[1] On March 2, 2012, petitioner filed a petition for support against respondent, alleging that respondent was not contributing to the support of their child to the extent of his financial ability. The petition did not state the amount of support respondent had been paying, nor did it state what amount petitioner was seeking. On March 13, 2013, after respondent repeatedly failed to respond to the petition, the trial court entered a temporary default uniform order for support, which ordered respondent to pay $100 per month beginning April 1, 2013.[2] In addition, the order reserved the issue of medical insurance coverage, as well as retroactive child support from January 1, 2011, through March 31, 2013. On August 16, 2013, the court ordered that the entirety of the temporary support order be made permanent. Up to this point, respondent had not been involved in the case.

         ¶ 4 On August 29, 2014, respondent finally filed his initial appearance in the matter, as well as a petition for joint custody. On October 9, 2014, petitioner filed a petition to modify child support, alleging that, upon information and belief, respondent's income exceeded $300, 000 per year. This number was based on the assertion that respondent was a part owner of Billboard Live, a nightclub, and was also the chief executive officer of an Amateur Athletic Union (AAU) basketball team called Mac Irvin Fire.[3] Petitioner argued that child support should be modified to be based on respondent's actual income, rather than the $500 monthly income amount imputed to him during the temporary support hearing on March 13, 2013. She also asked the court to retroactively modify the child support in accordance with respondent's actual income. On November 25, 2014, respondent filed a response to petitioner's petition to modify child support, in which he denied the petition's allegations.

         ¶ 5 Up to this point, respondent had not complied with petitioner's discovery requests. On December 23, 2014, petitioner filed a petition for rule to show cause against respondent for failure to comply with Cook County Circuit Court Rule 13.3.1 and Illinois Supreme Court Rule 214. The record indicates that respondent submitted an unsigned and non-notarized Rule 13.3.1 disclosure form in February 2015 that had all zeroes for his income.

         ¶ 6 On April 2, 2015, the petition to modify child support, petition for rule to show cause, and respondent's petition for joint custody were again continued to April 9, 2015. In the continuance order, the court also required respondent to pay petitioner a $500 lump sum for past-due child support payments and furnish a signed and notarized financial disclosure statement pursuant to Cook County Circuit Court Rule 13.3.1 before the hearing on April 9, 2015. Respondent complied with both terms of the court order. According to respondent's signed and notarized financial disclosure statement, his gross income for the year 2014 was $7200, which was made up of gifts from friends and family. He stated that his 2015 income up to March 2015 was $1880, although he did not specify if it was again made up of gifts. After adding in his $100-per-month expense for child support, his total monthly living expenses were $627. In the assets section, his only listed bank account was a checking account with U.S. Bank, which had a value of $0 to $20. He did not list any investment accounts in the investment accounts and securities section. The only business interest he listed was a 25% member interest in Olympian Group, LLC.

         ¶ 7 The parties came before the court for hearing on the pending motions on April 9, 2015. During the hearing, respondent testified to his financial situation on direct examination from petitioner's counsel. According to the agreed statement of facts from the hearing, [4] respondent testified that he lived rent-free at his mother's house. He had not had a regular job or income since 1998 and was still unemployed. He served as the head basketball coach for the Mac Irvin Fire AAU team but did not receive any income for his service. He relied on his mother, fiancée, and occasionally his brother for financial assistance. He was looking for employment solely in the field of basketball. Respondent had been a part of Antoine Walker's[5] entourage until 2010, when Walker declared bankruptcy. During respondent's time in the entourage, Walker had given him two vehicles. He admitted that he had invested approximately $40, 000 in Billboard Live in 2011 or 2012 but testified that he was not receiving any income from the investment and was no longer involved with the nightclub. Respondent testified that he "does not have any interest in any other company or organization."

         ¶ 8 The agreed statement of facts indicates that during examination of respondent, petitioner submitted a number of social media photographs of respondent as exhibits.[6] Respondent's counsel "made numerous objections to the photographs, arguing that they allowed an inappropriate contextual picture to be painted without rebuttal." The court denied these objections, stating that it "was able to maintain the photos in the right context and that [respondent] would be given an opportunity to address any misapprehensions in rebuttal." According to the agreed statements of facts, one photograph depicted respondent with a large stack of money and a caption reading " 'Billboard Live!! About to have me some fun!!' " According to the agreed statement of facts, the photograph was taken at a Billboard Live event at least one year prior to the hearing date, and the money did not belong to respondent. Other photographs depicted social media posts in which respondent talked about Christmas gifts, obtaining a pedicure, and conducting business, among other things. None of these social media posts was more recent than 32 weeks before the April 9 hearing. The record does not show whether respondent was asked to explain these photographs. Due to the late hour, the April 9 hearing was suspended to be continued at a later date. At this point, respondent had not finished giving his testimony on direct examination from petitioner's counsel.

         ¶ 9 On May 12, 2015, the trial court entered an order continuing the hearing to July 9, 2015.

         ¶ 10 On May 15, 2015, petitioner filed a discovery request to respondent regarding documents related to respondent's alleged business affiliation with TMT Sportz, LLC, an Indiana corporation. On June 24, 2015, petitioner filed a motion to compel respondent's discovery compliance, indicating that she had already sent a Supreme Court Rule 201(k) letter to respondent regarding discovery compliance. On July 2, 2015, the court heard petitioner's motion to compel and ordered respondent to comply with petitioner's discovery request by July 6, 2015. The court order from the status hearing on July 7, 2015, which is detailed further below, indicates that respondent finally complied with petitioner's discovery request.

         ¶ 11 According to the agreed statement of facts, on the trial readiness status date on July 7, 2015, respondent expressed that he had a conflict with the July 9 hearing date and would not be able to be present in court.[7] According to the agreed statement of facts, respondent "did not disclose or explain his sudden unavailability." Respondent's counsel requested that the hearing be rescheduled, but the court denied the request. No reasoning for the court's denial is provided in the agreed statement of facts for the July 7 hearing. The court order from this hearing notes that petitioner communicated her readiness to move on with the trial.

         ¶ 12 Respondent was not present during the hearing on July 9, 2015. According to the agreed statement of facts for this hearing, respondent's counsel made an oral motion to continue the hearing to a later date so respondent could continue giving his testimony but was again denied by the court. Petitioner's counsel "presented documentary evidence and argument"[8]that respondent had a business relationship with TMT Sportz, LLC, an Indiana corporation, and was a registered agent for the corporation. Respondent could be viewed in photographs on TMT Sportz's website from the 2014 "Chicago Summer Jam" basketball tournament, which cost $595 as a registration fee. Respondent was also listed on the TMT Sportz website as the contact person for the event. Respondent's business relationship with TMT Sportz had not been disclosed on respondent's Rule 13.3.1 financial affidavit. The record does not contain any testimony regarding the extent of respondent's involvement with TMT Sportz. Part of the evidence submitted by petitioner's counsel was TMT Sportz's unsigned 2014 tax return, [9] which stated that its gross income for the year was $50, 192, of which $41, 900 was spent on "outside services." After petitioner's counsel presented this evidence, respondent's counsel made an oral motion to allow respondent to give his testimony via the telephone, explaining that respondent was out of the state, which was denied. The court found that respondent's failure to appear created a negative inference against him and permitted the presumption that he believed that the evidence against him would be unfavorable. The agreed statement of facts indicates that the court "found a presumption that 'outside services' as listed on TMT Sportz'[s] tax documents included, at least in part, compensation for [respondent's] services" and that the Chicago Summer Jam event was an income-producing event that was not previously disclosed on respondent's Rule 13.3.1 financial statement. The court did not provide any independent basis for drawing this presumption, other than the previously expressed negative inference against respondent.

         ¶ 13 Petitioner's counsel also "presented documentary evidence and argument" of bank statements as evidence for two bank accounts that respondent maintained with Chase Bank that were not disclosed in his signed Rule 13.3.1 financial disclosure statement, in which he had deposited or transferred $28, 500.01 in May 2014, $25, 850.01 in July 2014, and more than $87, 000 between October 2014 and February 2015. The record does not contain any evidence that explains where the deposits came from or what expenses they were used for. Respondent's counsel objected to all of the documentary evidence submitted by petitioner's counsel because there was no person who could authenticate the documents, but the court overruled the objection and admitted all of the documents into evidence.

         ¶ 14 Petitioner also testified during the July 9 hearing. On direct examination by her own counsel, petitioner testified that beginning in 2007, respondent paid for an apartment and living expenses for petitioner and the child and also provided her with a vehicle to drive. Respondent provided approximately $3500 per month in child support until 2011. After 2011, petitioner and respondent agreed that respondent would pay $1000 per month for child support. However, respondent did not adhere to the agreement, and petitioner had been the child's sole support ever since.

         ¶ 15 On cross-examination by respondent's counsel, petitioner testified that respondent had paid for her to attend and graduate from college. From October 2013 through April 2015, respondent paid a total of $4095.10 in child support. After cross-examination ended, the court asked respondent's attorney to present any witnesses or evidence on respondent's behalf, but the attorney "could not add anything further in light of [respondent's] absence, " and the hearing was continued to July 31, 2015, for closing arguments.

         ¶ 16 Also on July 9, 2015, petitioner filed a motion for direct and indirect criminal contempt and for sanctions against respondent.[10] In the motion, petitioner detailed facts supporting the allegation that respondent had been engaging in fraud throughout the course of litigation through his attempts to mislead the court about his finances and his repeated failure to comply with discovery rules. The alleged facts included, among others, respondent's failure to disclose his active bank accounts, income from Billboard Live, and affiliation with TMT Sportz.

         ¶ 17 On July 31, 2015, respondent filed his response to petitioner's motion for direct and indirect criminal contempt. In the response, he admitted that he was listed as a registered agent for TMT Sportz but stated that he had never received any income from the business. Respondent denied that he omitted his bank account information from his signed Rule 13.3.1 financial disclosure statement. He reiterated that, at that point, he was receiving income of approximately $500 per month.

         ¶ 18 Closing arguments on petitioner's petition to modify child support and respondent's petition for joint custody were heard on July 31, 2015, and according to the agreed statement of facts from the hearing, the court found that respondent's testimony significantly lacked credibility. Specifically, the court found:

"Mr. Irvin's testimony lacks credibility to a significant degree, especially as to the following:
a. Mr. Irvin's testimony regarding not receiving Billboard income and the company being dissolved this year, though filled to capacity;
b. Mr. Irvin's mother and fiancé[e] support him and his fiancé[e] pays all his expenses;
c. Mr. Irvin has no assets and all he does is coach a team for no pay;
d. Mr. Irvin is not authorized to incur expenses on the Mac Irvin Fire credit card;
e. Mr. Irvin's disclosure filed pro se, and his updated disclosure that was not complete;
f. Others paid for Mr. Irvin to attend the NCAA finals with Duke University or go to Georgia."

         ¶ 19 Among other rulings irrelevant to the issues on appeal, the court granted petitioner's petition to modify child support and set the amount for respondent to pay at $3000 per month.[11] The court explained that this amount was based on petitioner's testimony, as well as a presumed income from TMT Sportz and the bank statements showing that tens of thousands of dollars ran through respondent's bank account. The child support was retroactively applied from January 1, 2011. Finally, the court ruled that respondent must provide the child with an adequate health insurance policy.

         ¶ 20 On August 27, 2015, respondent filed a motion to reopen proofs in order to determine his "actual income." In the motion, respondent argued that there was insufficient factual evidence of his income to support the court's modification of the child support to the amount of $3000 per month. Specifically, respondent pointed out that there was no testimony explaining the bank statements submitted by petitioner's counsel that would help determine "whether any of the deposits were income or whether the expenses would affect any of the deposits." Respondent argued that "[e]quity dictates that proofs should be reopened to require the Petitioner to provide evidence to carry her burden of proving [respondent's] income and for [respondent] to present evidence in his defense."

         ¶ 21 On October 14, 2015, the court denied respondent's motion to reopen proofs. According to the hearing transcript, the court found that respondent's actions during the course of the litigation diminished his credibility, rendering his actual income indeterminable from the evidence. Relying on section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a)(5) (West 2010)), the court found that since it could not determine respondent's actual income from the evidence, it was necessary to deviate from the statutory guidelines for determining child support and enter a needs-based order. In doing so, the court found petitioner's testimony from the July 9 hearing-that she needed $3000 per month to cover the child's expenses-credible and reasonable and found that it "had no alternative but to enter an award based on that amount because [respondent] failed to appear and give testimony." The court found that it had not abused its discretion by deviating from the guidelines for determining child support based on income. Despite argument from respondent s counsel, the court, relying on case law, [12] stated that it did not need to explain its basis for the needs-based order. The transcript also indicates that respondent's counsel argued that the court had mistakenly construed respondent's motion as a motion to reconsider, instead of a motion to reopen the proofs:

"THE COURT: A motion to reconsider allows a party to bring before the Court newly discovered evidence, changes in the law, or errors in the Court's prior application of existing law. ***
RESPONDENT'S COUNSEL: With all due respect, [Y]our Honor *** We didn't file a motion to reconsider. *** We argued a motion to reopen the proofs.
THE COURT: And I denied it.
RESPONDENT'S COUNSEL: It has nothing to do-but you cited a motion to reconsider. *** ...

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