In re MARRIAGE OF DANIELLE R. ELLIOTT, Petitioner-Appellant, and NEIL PATRICK ELLIOTT, Respondent-Appellee.
from Circuit Court of Ford County No. 07D69 Honorable Matthew
J. Fitton, Judge Presiding.
Attorneys for Appellant: Paul R. Wilson Jr., of Paul R.
Wilson Jr., Ltd., of Rantoul, for appellant.
Attorneys for Appellee: Matthew E. Peek, of Erwin, Martinkus
& Cole, Ltd., of Champaign, for appellee.
PRESIDING JUSTICE HOLDER WHITE delivered the judgment of the
court, with opinion. Justice Cavanagh concurred in the
judgment and opinion.
WHITE, PRESIDING JUSTICE
1 In March 2014, petitioner, Danielle R. Elliott, filed a
petition to modify a July 2012 order regarding child support
and day care expenses. In May 2014, respondent, Neil Patrick
Elliott, filed a petition to modify a June 2013 order
regarding day care expenses. In January 2018, the trial court
entered an order (1) finding no substantial change in
circumstances existed to modify the support order, (2)
increasing respondent's child care expense retroactive to
July 1, 2017, and (3) declining to calculate respondent's
arrearage or enter a finding of contempt until a certified
accounting was presented by the State Disbursement Unit. In
an order entered on petitioner's motion to reconsider,
the court found the evidence and documentation failed to show
an arrearage and declined to find respondent in contempt.
2 Petitioner appeals, arguing (1) the trial court should have
found respondent in indirect civil contempt and (2) the court
erred in denying petitioner's petition to increase child
support. For the following reasons, we affirm in part,
reverse in part, and remand for further proceedings.
3 I. BACKGROUND
4 The parties married on September 25, 1999, and had one
daughter, S.E. (born August 8, 2007). In April 2009, the
trial court entered a judgment of dissolution of marriage.
The court ordered respondent to pay child support, day care
expenses, and a bimonthly payment on an arrearage.
5 In July 2012, the trial court entered an order requiring
respondent to pay $413.66 bimonthly for child support and
$108.33 bimonthly for day care expenses. The child support
and day care expense payments commenced October 1, 2011. In
June 2013, the court entered an order determining
respondent's arrearage, which noted the parties agreed
respondent owed $5298.22 and ordered respondent to make
bimonthly arrearage payments of $82.73. The same day, the
court entered an order on respondent's motion to modify
an order on visitation and stated that other than the
modifications made within the order, all previous orders
remained in full force and effect.
6 A. Motions to Modify
7 In March 2014, petitioner filed a petition to modify child
support alleging a substantial change in circumstances. In
June 2015, petitioner filed a memorandum of law asking the
trial court to consider respondent's spousal income in
determining whether to modify child support.
8 In May 2014, respondent filed a petition to modify the June
2013 support order. The petition alleged the June 2013 order
to withhold income ordered respondent to pay $108.33
bimonthly for day care expenses. The withholding order does
not appear in the common law record. Respondent's
petition to modify the June 2013 support order alleged S.E.
was no longer attending day care and asked the court to
remove his day care expense obligation.
9 B. Rules to Show Cause
10 In May 2015, the trial court entered an order for rule to
show cause finding probable cause to believe that respondent
failed to comply with the provisions of the July 2012 order
for child support and day care expenses, the June 2013 order
on arrearage, and the June 2013 withholding order. In May
2017, petitioner filed a petition for rule to show cause
alleging respondent failed to pay $17.49 for his half of
prescription costs petitioner incurred. An order on this
petition for rule to show cause does not appear in the
record. In August 2017, petitioner filed another rule to show
cause alleging respondent failed to fully pay child support
through August 15, 2017. The petition alleged an arrearage of
$24, 033.86. Thereafter, the court entered an order for rule
to show cause for the balance of unpaid child support in the
amount of $24, 033.86.
11 In September 2016, petitioner filed a motion for summary
judgment based on a request to admit to which respondent
failed to respond or object. The request to admit contained
copies of child support payment history records from the
State Disbursement Unit. The payment history shows respondent
made various child support payments, and the motion for
summary judgment alleged the payments totaled $37, 575.29.
The motion further alleged respondent should have paid $62,
104.28 through August 20, 2016.
12 In May 2017, petitioner filed another motion for summary
judgment based on another request to admit to which
respondent failed to respond or object. The request to admit
contained a document titled "employer's answer to
order/notice to withhold income for child support." The
document listed the obligor as respondent, the employer as
Feld Entertainment, Inc., and stated respondent's
disposable earnings were $3463.12 per week. The request to
admit also contained a warranty deed indicating respondent
and his second wife purchased a home for $200, 000, on which
they owed $160, 000.
13 C. Hearings
14 In December 2016, the matter was set for a hearing on all
issues. Respondent did not file a brief and failed to appear
personally or by counsel. Accordingly, the trial court found
respondent in default and entered judgment in
petitioner's favor. In January 2017, respondent filed a
motion to vacate the default judgment. A March 2017 docket
entry shows the court granted respondent's motion to
vacate and ordered the parties to submit discovery, including
updated financial affidavits, within 30 days. The entry also
notes counsel for respondent conceded that respondent owed at
least $18, 874 in arrearage as of June 1, 2016.
15 In August 2017, the trial court held a hearing on all
pending matters. At the outset, the court addressed
petitioner's motion to dismiss respondent's petition
to modify day care expenses. Petitioner supplemented the
motion with copies of checks to prove day care expenses from
2012 to 2017. Petitioner argued respondent's petition to
modify should be dismissed based on her proof of day care
expenses and further argued the order for day care expenses
was for $108.33, with no conditions or limits. Counsel for
respondent argued the original order for day care expenses
was for one half of the cost of day care with Pam Bruns.
Based on the checks produced by petitioner, respondent argued
he did not owe day care expenses because petitioner paid
different day care providers. Respondent further argued the
original order was for one half of the day care expenses and
records showed the order to pay $108.33 bimonthly was
approximately double the cost of the actual expenses.
Accordingly, respondent asked for "credit" in the
form of calculating his arrearage based on half of the actual
day care expenses incurred, rather than calculating the
arrearage based on the ordered $108.33 for day care expenses.
The court indicated its belief that the intent of the day
care expense order was for respondent to pay half of actual
expenses, not the amount ordered.
16 Petitioner next raised the May 2017 petition for rule to
show cause regarding the $17.49 respondent owed for
pharmaceutical expenses. Respondent agreed to pay the $17.49.
The parties addressed petitioner's motions for summary
judgment at length. The trial court ultimately determined
there were genuine issues of material fact and proceeded to
hear the following testimony.
17 1. Respondent
18 Respondent identified numerous income tax returns,
including one for his second wife, who respondent
subsequently divorced, that showed she earned $81, 775 in
2015. Respondent testified he received tax refunds from
several states and from the Internal Revenue Service.
Respondent worked for Feld Entertainment as a monster truck
driver. He earned a fixed amount per event, and his employer
guaranteed 16 events per year. Respondent earned $3250 for
each event and $3750 for international events. Respondent
testified his tax returns showed gross wages as follows: $82,
400 in 2013, $79, 880 in 2014, $85, 375 in 2015, and $83, 750
in 2016. Counsel for petitioner asked respondent about
records from his employer that "reflected a 2014 income
of [$]58, 250 and a 2015 gross of $92, 000 and in 2016 $71,
500, and thus far in 2017 or, at least, through the end of
June, [$]54, 250." Respondent agreed those records would
19 Respondent testified he owned a 2007 Dodge Ram truck on
which he owed a little more than $10, 000. Respondent also
testified about numerous bills he and his ex-wife continued
to share because they still lived together. According to
respondent, the court awarded his second wife the house in
the divorce and he took a motor home. However,
respondent's name was still on the title for the house.
In addition to the truck and the motor home, respondent owned
a Harley-Davidson motorcycle.
20 According to respondent, he and his second wife terminated
an existing joint account when they divorced in February
2017. Respondent put all his funds into the joint account.
Respondent testified he was unaware of numerous large
transfers of funds out of the joint account. Some transfers
were to a company called Florida Home REA Credit Com where
respondent's second wife worked as a ...