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In re Marriage of Elliott

Court of Appeals of Illinois, Fourth District

September 12, 2019

In re MARRIAGE OF DANIELLE R. ELLIOTT, Petitioner-Appellant, and NEIL PATRICK ELLIOTT, Respondent-Appellee.

          Appeal 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.

          OPINION

          HOLDER 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 be correct.

         ¶ 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 ...


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