author: JUSTICE KNECHT

text:
    FIRST MIDWEST BANK/DANVILLE, Plaintiff-Appellee, v. CINDY J. HOAGLAND, Defendant (John Blakeney, Defendant-Appellant).
    Fourth District
    No. 4 — 92—0733
    Opinion filed April 22,1993.
    Rehearing denied June 7,1993.

      John Roska (argued), of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, for appellant.
    William Garrison and Jeanette E. Bahnke (argued), both of Saikley, Garrison & Colombo, Ltd., of Danville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant John Blakeney appeals from an order of the circuit court of Vermilion County holding him in indirect civil contempt of court for his failure to obey a court order requiring him to submit copies of his 1991 income tax returns to First Midwest Bank, and prohibiting him from disposing of his 1991 income tax refund. Defendant appeals, alleging various allegations of error regarding notice, propriety of a contempt finding based upon an oral order, propriety of the finding of indirect civil contempt in the case, and propriety of the sanction imposed. We agree with the defendant and reverse.

On August 24, 1990, Blakeney and his wife, Cindy Hoagiand, obtained an automobile loan from plaintiff First Midwest Bank in the amount of $1,118.43. Blakeney and Hoagiand signed a promissory note obligating them to make monthly payments. Blakeney and Hoagiand defaulted on the note, and on August 22, 1991, plaintiff filed a small claims action against them, requesting a judgment of $803.54, plus costs and attorney fees. Both Blakeney and Hoagiand were served by abode service on September 11, 1991, with a summons instructing them to appear in court on September 16, 1991. The docket entry sheets indicate Hoagiand appeared in court pro se on September 16, 1991, and agreed to a judgment against her in the amount of $803.54, plus costs and either $126 or $140 temporary attorney fees. (There are two docket entries for September 16, 1991. They are identical with respect to the amount claimed and costs, but one provides for a judgment for temporary attorney fees in the amount of $126, and the other provides for a judgment for temporary attorney fees in the amount of $140.) Although Hoagland is mentioned by name in the docket entries, no mention is made of Blakeney, and no judgment was recorded against Blakeney. There was no written order of judgment entered. At oral argument, Blakeney “conceded” a judgment had been entered against him, but that “concession” does not ameliorate our concern about this trial court record.

Although the record does not reflect judgment had been entered against Blakeney, on September 27, 1991, plaintiff caused the clerk of the court to issue a citation to discover assets directing Blakeney to appear in court on October 21, 1991, to be examined under oath regarding his income and assets. Blakeney was instructed to bring copies of his Federal and State income tax returns for the years 1988, 1989, and 1990.

Blakeney appeared in court pro se pursuant to the citation on October 21, 1991. By agreement of the parties, the matter was continued for a status check until November 4, 1991. On November 4, 1991, Blakeney again appeared pro se. According to a nunc pro tunc docket entry, the court orally ordered Blakeney to (1) pay $25 per month to the plaintiff beginning in December 1991, (2) notify plaintiff’s attorney of any change in address or employment, (3) provide plaintiff’s attorney with copies of his 1991 income tax returns within five days of filing them, (4) not dispose of or agree to dispose of his income tax refund without permission of the court or agreement of the plaintiff, and (5) furnish copies of all future tax returns, until the judgment had been paid in full. This order was not reduced to writing and was not reflected in the docket entry made on November 4,1991.

On April 23, 1992, plaintiff filed a petition for a rule to show cause, which was scheduled to be heard by the court on May 4, 1992. The petition for the rule to show cause alleged Blakeney had failed to comply with the court’s order of October 21, 1991, which plaintiff alleged required Blakeney to furnish it with copies of his 1991 tax returns within five days of filing. Blakeney did not appear at the hearing on the petition for the rule to show cause. The court issued a rule to show cause, requiring Blakeney to appear and show cause as to why he should not be held in contempt of court for his failure to appear in court on plaintiff’s petition for a rule to show cause. Plaintiff mailed a copy of the rule to Blakeney.

Blakeney appeared pro se, pursuant to the rule to show cause, on May 18, 1992. Blakeney testified he had not provided plaintiff with copies of his tax returns and had used his tax refund of approximately $800 to pay bills. The matter was continued to June 8, 1992, for a status check. Blakeney was ordered to appear on the status date and bring with him copies of his tax returns and a list of bills he paid with his tax refund. The record does not reflect that defendant was admonished that he could be held in contempt of court due to spending his tax refund or for any other reason. The only written order entered simply stated the matter was continued for a status check.

On June 8, 1992, Blakeney appeared pro se. Blakeney brought copies of his tax returns to court with him and testified he paid $200 of his tax return to his landlord and $600 to his mother. The court continued the matter to June 15, 1992. Again, the record does not reflect that defendant was admonished that he could be held in contempt of court for spending his tax refund or for any other reason. The only written order entered provided the matter was continued for a status check.

On June 15, 1992, Blakeney appeared pro se. Blakeney testified he had made only one of the $25 monthly payments which he was to have made to plaintiff under the November 4, 1991, order. Blakeney was offered an opportunity to explain why he had not made more of the monthly payments. Blakeney stated he was unemployed and was receiving unemployment benefits. The court found defendant to be in contempt of court for his deliberate and willful failure to provide copies of his tax returns to plaintiff, and for disposing of his tax refund. The court ordered Blakeney to serve 30 days’ incarceration, staying the enforcement of the order for 60 days and setting a status hearing for August 17, 1992. The court provided Blakeney could avoid the incarceration if he paid $600 on or before August 17,1992.

Blakeney obtained counsel through Land of Lincoln Legal Assistance. On July 27, 1992, the court approved a pauperis petition, exempting the defendant from payment of court costs due to indigency. On July 28, 1992, Blakeney, through his counsel, filed a motion to vacate the finding of contempt. The motion stated there was no record of a court order limiting Blakeney’s ability to dispose of his tax refund. Blakeney, in an affidavit in support of the motion, stated that prior to June 15, 1992, he was unaware of any court order limiting his ability to dispose of his tax refund. Blakeney’s motion to vacate was heard on September 4, 1992.

At the commencement of the hearing the court stated that although the docket entries did not reflect the entry of an order, on November 4, 1991, limiting Blakeney’s ability to dispose of his tax refund, the court had retrieved its personal handwritten notes of the November 4, 1991, hearing. The court stated its notes reflected Blakeney had been ordered to notify plaintiffs attorney of any change in address or employment, to provide plaintiff with copies of his tax returns within five days of filing them, not to dispose of or agree to dispose of his 1991 tax refund without the permission of the plaintiff or order of the court, and to furnish copies of his tax returns in the future until the judgment was paid in full. The court stated the failure of the clerk to record this order in a docket entry was probably the result of there being 168 separate cases on the court’s docket that day.

The court ordered the clerk to correct the docket entry in the court file for November 4, 1991, to reflect the order regarding Blakeney’s tax refund. The court noted Blakeney testified on June 15, 1992, that he had received a tax refund of approximately $800, and had spent it without the permission of the plaintiff or order of the court. The court then asked Blakeney’s attorney if he wished to withdraw the motion to vacate the order of contempt because the motion was partially based on an incomplete docket entry. The defense proceeded with the motion. The court denied the motion and, despite the defense’s requests, refused to make a finding on whether Blakeney had the financial ability to pay the purge amount which had been set at $600. The court ordered the mittimus for Blakeney’s confinement to issue immediately. The defense requested enforcement of the order be stayed so Blakeney could consider an appeal. The motion was initially denied; however, the court later stayed the enforcement of the order.

After the September 4, 1992, hearing, pursuant to the court’s order to correct the docket entry of November 4, 1991, the clerk of the court generated a “revised computer printout” of docket entries. On the revised computer printout of docket entries, the entries reflected Blakeney had been ordered on October 21, 1991, and November 4, 1991, not to dispose of his tax refund. The original docket sheets— containing all of the docket entries originally made in the matter— were removed from the file and replaced by the computer printout of “revised” docket entries, containing the “corrected” version of events.

At further hearing on September 9, 1992, the court reviewed the “revised docket entries,” and found they were still incomplete and inadequate. The court ordered the revised docket entry of October 21, 1991, to be corrected by deleting reference to the tax refund, finding that Blakeney had not been ordered not to dispose of his tax refund on October 21, 1991. The court additionally ordered the revised docket entry of November 4, 1991, to be further revised to read as follows:

“By his agreement, the defendant JOHN BLAKENEY, was ordered and directed to pay $25.00 per month beginning December 7, 1991. Defendant was further ordered and directed to notify William Garrison[,] attorney for the plaintiff, within five days of any change in address or upon obtaining or resuming any employment different from that which he held on November 4, 1991. He was further ordered and directed to furnish William Garrison, attorney for the Plaintiff, copies of his 1991 federal and state income tax returns within five days of filing and not to dispose or agree to dispose of any refund shown to be due thereon without agreement of the Plaintiff or order of Court, and further was ordered and directed to furnish copies of his subsequent federal and state income tax returns until the judgment was paid in full.”

On appeal, Blakeney alleges the finding of contempt in this case was improper, the sanction imposed was improper, and notice did not comport with due process. We agree. We initially address the propriety of the nunc pro tune orders.

I. The Nunc Pro Tunc Orders

The nunc pro tunc orders of September 4 and 9, 1992, changing the docket entries of October 21, 1991, and November 4, 1991, have two major shortcomings. First, the nunc pro tunc orders were improper as they were not based upon a note, memorandum, or memorial present in the court record. Second, the manner in which the nunc pro tunc orders were recorded was improper as it resulted in the destruction of a portion of the record, and the insertion of a revised record, without providing any explanation that the record had been revised and the substance of the revisions.

On September 4, 1992, nearly three months after the court had held Blakeney in contempt of court and 10 months after the November 4, 1991, oral order which Blakeney allegedly violated, giving rise to the contempt charge, the court realized the clerk had not entered a docket entry on November 4, 1991, reflecting an order regarding the disposition of Blakeney’s tax refund. Nor was there a written order entered on November 4, 1991. The court, based upon its notes of the November 4, 1991, hearing, which were not part of the court record, ordered the docket entries to be changed to reflect an order of the court purportedly entered on November 4, 1991, prohibiting Blakeney from disposing of his 1991 tax refund.

A court has the power to enter a nunc pro tune order to correct an order so that it conforms with the order of the court. (In re Marriage of La Reno (1983), 113 Ill. App. 3d 755, 759, 447 N.E.2d 949, 953.) The function of a nunc pro tunc order is to speak now for what was actually done then. (People v. Denny (1992), 238 Ill. App. 3d 819, 822.) The nunc pro tunc order must be based upon evidence such as a note, memorandum, or memorial paper remaining in the files or upon the records of the court. (Beck v. Stepp (1991), 144 Ill. 2d 232, 238-39, 579 N.E.2d 824, 827.) The memorandum must be made at the time of the proceeding it references. (Frank v. Village of Barrington Hills (1982), 106 Ill. App. 3d 747, 752, 436 N.E.2d 276, 280-81.) Neither the letter which plaintiff claims to have sent to Blakeney on January 8, 1992 (and which was filed with the court sometime on or between June 15, 1992, and July 18, 1992), nor the notes of the trial court (which have not been incorporated into the court record), satisfy this requirement.

Plaintiff claims to have sent Blakeney a letter on January 8, 1992, which makes reference to an order entered on October 21, 1991, requiring Blakeney to furnish it with copies of his tax returns within five days of filing and to refrain from disposing of his tax refund without its agreement or order of the court. Incidentally, according to the bystander’s report (134 Ill. 2d R. 323(c)), no such order was entered on October 21, 1991, as alleged by plaintiff in its letter to Blakeney; rather, the oral order was made on November 4, 1991. As there was no reference in the original docket entries of either October 21, 1991, or November 4, 1991, and plaintiff neglected to prepare a written order for entry by the court on either of those dates, plaintiff’s confusion regarding when the order was made, just as the defendant’s confusion regarding whether such order was ever made, is understandable.

Plaintiff’s letter cannot be a basis for the nunc pro tunc order because it was not written at the time of the proceeding which it references, and it was not filed with the court until months after the October 21, 1991, and November 4, 1991, docket entries were made. The judge must have a definite and certain record as a basis for a nunc pro tunc order. The basis must be found within the record of the court and without reliance upon the recollection of the trial judge or affidavits. (Frank, 106 Ill. App. 3d at 752, 436 N.E.2d at 280; O’Dell v. Dowd (1981), 102 Ill. App. 3d 189, 191, 429 N.E.2d 548, 551.) Plaintiff’s letter of January 8, 1992, was not filed with the court until the summer of 1992. Although it does not bear a file stamp, its location in the file suggests it was filed after an order bearing a file stamp dated of June 15, 1992, and before an order bearing a file stamp dated July 28, 1992. Thus, the letter was presumably filed on or between June 15, 1992, and July 28, 1992. Assuming arguendo that a letter written by plaintiff to defendant, referencing a court order, could constitute a note, memorandum, or memorial paper upon which a nunc pro tunc order could be based, the nunc pro tunc order cannot be entered based upon the letter in this case because it was not a memorandum remaining in the file of the court; rather, it was a memorandum which was first filed with the court eight to nine months after the October 21, 1991, oral order which it references by date, and seven to eight months after the oral order of November 4, 1991, in which the order referred to was — according to the trial judge’s later revised entries — actually made. Moreover, the letter cannot be the proper basis for a nunc pro tunc order because it was not made at the time of the proceeding which it references; rather, it was made three months after the October 21, 1991, proceeding and two months after the November 4, 1991, proceeding.

Likewise, the judge’s notes which are not kept in the court record cannot be the basis for the entry of a nunc pro tunc order. As the appellate court stated in Gardner v. People (1902), 100 Ill. App. 254, 258, “[t]he record that imparts absolute verity, and upon which all who look may rely, does not reside ‘unwritten and unspoken in the breast of the judge.’ Nor does it exist in memoranda kept by the court.” Although not precedential (compare Ill. Rev. Stat. 1877, ch. 37, par. 34, with Ill. Rev. Stat. 1935, ch. 37, par. 49 (as amended by approval of H.B. 62 Apr. 25, 1935 (1935 Ill. Laws 696)); see also, e.g., People ex rel. Nelson v. Sherrard State Bank (1930), 258 Ill. App. 168,178), we find Gardner persuasive.

Thus, as there was no basis in the record upon which the nunc pro tunc orders of September 4, 1992, and September 9, 1992, could be based, these orders were improper.

We additionally caution the circuit court against future use of the procedure followed in this case for entry of nunc pro tunc orders. Once a written order or docket entry becomes part of the court record, it cannot be removed from the court record. An order or docket entry may be corrected by a nunc pro tunc order, but this does not involve the destruction of the original record, substitution of a revised record, and presentation of the revised record as if matters had been originally recorded in the revised form.

A nunc pro tunc order speaks now for what was actually done then. A nunc pro tunc order is a correcting order. Both the original order and the nunc pro tunc order should be present in the court record. The original order should remain intact. The nunc pro tunc order should bear the date it was made, reference the original order and state what is to be deleted, added, or changed. If the nunc pro tunc order provides the original order is to be altered on its face, such alterations to the original order may be made — oro the original, with markings noted upon its face; however, the nunc pro tunc order, specifically setting forth the deletions, additions or changes, must remain in the court record. In this way, the court record will accurately reflect the order that was originally entered, and the date, existence, and effect of the nunc pro tunc order.

The nunc pro tunc orders were improper, both in substance and in form. We additionally note the nunc pro tunc orders were not made until after Blakeney had allegedly violated the oral orders of the court, and after he had been held in contempt of court for such violations. Thus, at the time Blakeney was held in contempt of court, there was no trace in the record of the order he had allegedly violated, and Blakeney consistently maintained he never understood such order to have been made.

Courts must use extreme caution in holding an individual in indirect civil contempt of court based upon the violation of a court order not found in the court record. Holding an individual in contempt of court is a drastic remedy, especially where the sanction involves incarceration of the alleged contemnor. Under some circumstances, an individual may be held in indirect civil contempt of court for violation of an oral court order. See People v. Kennedy (1963), 43 Ill. App. 2d 299, 302, 193 N.E.2d 464, 466.

In Kennedy, the defendant was orally admonished by the court that he would be held in contempt of court if he molested or threatened his stepdaughter. A month later, defendant struck his stepdaughter, called her vile names, and threatened her. (Kennedy, 43 Ill. App. 2d at 301, 193 N.E.2d at 465.) A rule to show cause was entered, requiring defendant to show cause as to why he should not be held in contempt of court. At the hearing on the rule, the defendant testified he had perfectly understood the order of the court, and knew he would be held in contempt of court if he violated it; however, the defendant argued the order of the court should not be binding upon him, as it was an oral order which was not reduced to writing. Affirming the finding of contempt, the appellate court noted that the disobedience of an oral order of the court may be punished for contempt. The court stated:

“If we were to adopt the rule as urged by the defendant, every admonition and ruling made by a trial court during the course of a proceeding would be meaningless and unenforceable. Persons who hear or are apprised of oral decisions and violate their provisions are liable to contempt proceedings.” Kennedy, 43 Ill. App. 2d at 302, 193 N.E.2d at 466.

In Kennedy, the appellate court was concerned with the ability of an individual to avoid compliance with a court order, even though he had understood the court order, because the order had not been reduced to writing. We agree that where an individual acknowledges understanding a court order, and disobedience of it, the individual may not escape punishment for contempt merely because the order was not reduced to writing. However, the present case is distinguishable from Kennedy. Blakeney, unlike Kennedy, did not testify, in open court, that he understood the order of the court and knew he could or would be held in contempt for violating it but violated it anyway. On the contrary, Blakeney testified he did not understand the order of the court and was unaware, until the initiation of the contempt proceedings, of the order of the court of which he was alleged to be in contempt.

While recognizing the possibility a litigant may be held in contempt of an oral order, courts have repeatedly acknowledged the inherent perils of holding a person in contempt for the violation of an order which does not appear in the record of the court. In Bank of Hamilton v. Lessee of Dudley (1829), 27 U.S. (2 Pet.) 492, 522, 7 L. Ed. 496, 506, the Supreme Court stated:

“That a Court of record, whose proceedings can be proved by the record alone, should, at a subsequent term, determine that an order was made at a previous term, of which no trace could be found on its records *** is a proceeding of so much delicacy and danger, which is liable to so much abuse; that some of us question the existence of the power.”

Similarly in Dines v. People (1891), 39 Ill. App. 565, the court noted that better practice indicates orders, the disobedience of which could form a basis for contempt, should be of record. Specifically, the court stated:

“Mere verbal orders may be given by the judge, which are never placed upon record, and for the disobedience of which one might be punished as for contempt. But all such orders and proceedings could properly be placed upon the record of the court, if necessary, and usually would be, if proceedings in the nature of punishing for contempt were to grow out of them.” (Dines, 39 Ill. App. at 569.)

Again, although not precedential by statute as preceding the 1935 amendment, we find Dines persuasive.

We conclude a court must use extreme caution in holding a person in indirect civil contempt of court for the disobedience of an order of which there exists no record, and of which the alleged contemnor consistently denies knowledge.

Plaintiff alleges the effect of Blakeney’s argument is to require the court to reduce all orders to writing. We do not come to such a broad conclusion. However, where an unsophisticated and uneducated litigant is orally ordered to do and refrain from doing a list of activities spanning a lengthy period of time, better practice would be to provide the litigant with a written order, so the litigant has written confirmation and clarification of what he has been ordered to do and not to do, and at what time he must do or refrain from doing the listed activities.

Plaintiff alleges it is an impossible burden to require the court to reduce its order to writing. It takes but a few minutes for the court to enter an order memorializing its decision. We have additionally stated that it takes only moments to directly elicit from a party a response indicating that he understands the proceedings or the court’s oral orders, and incorporate such into the record. (Abbott v. Abbott (1970), 129 Ill. App. 2d 96, 99, 262 N.E.2d 502, 504.) Moreover, the present predicament could have been avoided had plaintiff drafted an order, and presented it to the court for entry.

Many circuits have reduced the burden on the court by enacting a local rule requiring the prevailing party to draft a proposed order, which is then reviewed by the court and entered if appropriate. In the present case, an applicable local rule provided:

“(A) Presentation of Drafts: When the court rules upon a motion other than in the course of a trial or makes a final determination in an action, the attorney for the prevailing party shall prepare and present to the court the order, judgment or decree to be entered, unless otherwise directed by the court.” (5th Jud. Cir. R. XI (1990).)

In his brief, Blakeney argues this rule required plaintiff to submit a written order regarding the instructions to Blakeney at the citation hearing. Blakeney argues plaintiff’s failure to comply with this rule should prevent it from enforcing the oral order through contempt proceedings. We need not determine if the order entered at the citation hearing was made upon plaintiff’s motion. However, the party for whose benefit the order is entered ought to prepare a draft order for submission to the court. Blakeney was required to appear in court

pursuant to the citation to discover assets issued at the plaintiff’s behest. Blakeney appeared in court and was ordered to do or refrain from doing a variety of actions, all for the benefit of plaintiff. Had the plaintiff transcribed the list of requirements, and incorporated them into a court order, which could then have been signed by the court and a copy provided to Blakeney, this situation would have been avoided.

II. Notice

Blakeney did not receive notice of the contempt proceedings comporting with due process. In proceedings to punish indirect civil contempt of court, due process requires notice or a rule to show cause be served upon the alleged contemnor. This formal written notice must inform the alleged contemnor of the charges against him. (See In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 94, 507 N.E.2d 912, 918 (Betts I).) The notice must contain an adequate description of the facts upon which the contempt charge is based and inform the alleged contemnor of the time and place of the evidentiary hearing on the charge, within a reasonable time in advance of the hearing. (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 53, 558 N.E.2d 404, 422 (hereinafter Betts II).) Blakeney was held in contempt of court for his failure to provide plaintiff with copies of his tax returns within five days of filing, and disposal of his tax refund. Blakeney received some notice of the first charge, but never received notice the court would determine whether he should be held in contempt of court for disposing of his tax refund.

Plaintiff alleges Blakeney received proper notice of the contempt proceedings under four theories. First, plaintiff alleges Blakeney received oral notice of the charges against him. This statement is not supported by the record; however, even if Blakeney had received oral notice, oral notice is inadequate. Defendant must receive formal written notice of the charges against him. See Betts I, 155 Ill. App. 3d at 94, 507 N.E.2d at 918.

Second, the plaintiff alleges the petition for the rule to show cause and the rule to show cause provided Blakeney with written notice of the charges against him. The petition for the rule to show cause notified Blakeney that plaintiff alleged Blakeney should be held in contempt of court for failing to provide plaintiff with copies of his income tax returns within five days of filing. The rule to show cause required Blakeney to appear in court and show cause why he should not be held in contempt of court for his failure to appear for the hearing on plaintiff’s petition for a rule to show cause.

Incidentally, we note Blakeney could not have been held in contempt of court for failing to appear for the hearing on plaintiff’s petition for a rule to show cause. An individual may be held in contempt of court for failure to appear in court when ordered to do so by the court. The supreme court has additionally provided an individual may be held in contempt of court for failure to appear in court pursuant to a citation to discover assets. (134 Ill. 2d R. 277(h).) However, a movant litigant’s notice that it will appear in court and request a rule to show cause is neither an order of the court nor a citation to discover assets. Thus, while the nonmoving litigant may appear if he so desires, he is not required to do so by the court and cannot be held in contempt of court for his failure to do so.

Blakeney did not receive proper written notice that a hearing would be held regarding whether he should be held in contempt of court for his failure to provide plaintiff with copies of his tax returns. Ideally, a defendant should receive both the petition for the rule to show cause and the rule to show cause. Where a rule to show cause and petition for a rule to show cause set forth substantially the same allegations, the service of the rule to show cause, setting forth the nature of the charges against him and the time and place of the hearing on those charges, satisfies the due process notice requirements. (Betts I, 155 Ill. App. 3d at 94-95, 507 N.E.2d at 919.) However, where the petition sets forth one charge against defendant and the rule to show cause requires defendant to appear at a certain time and place and show cause as to why he should not be held in contempt of court based upon an entirely different and unrelated charge, the charge mentioned in the petition has been abandoned, and defendant has not received proper notice that a hearing will be held on whether he should not be held in contempt of court on the basis of that charge. Moreover, neither the petition nor the rule to show cause can be construed in any way to provide Blakeney with formal written notice the court would determine whether he should be held in contempt of court based upon disposing of his tax refund.

Third, plaintiff alleges that by appearing in person and testifying, Blakeney waived formal written notice. An alleged contemnor may waive formal written notice by voluntarily appearing in court and defending against the charge. (Betts II, 200 Ill. App. 3d at 53, 558 N.E.2d at 422.) However, in the present case, Blakeney did not appear voluntarily and defend against the charge that he should be held in contempt of court for his failure to provide plaintiff with copies of his tax returns, or because he disposed of his tax refund. Rather, he appeared in court, pursuant to a rule to show cause, which ordered him to appear in court and show cause as to why he should not be held in contempt of court for his failure to appear at the hearing on plaintiffs petition. At the contempt hearing, Blakeney was given an opportunity to explain why he had not made more of the $25 monthly payments. Since Blakeney was never given notice that this was a charge against him, it is not clear why this matter was an issue in the contempt proceedings. There is no indication that Blakeney did anything other than answer the questions posed to him and state that he was unemployed. We do not believe appearing pursuant to a rule to show cause, setting forth a specific charge, and answering the questions posed by the court or opposing counsel, constitutes voluntarily appearing and defending against other charges of which Blakeney has not been given notice.

Finally, plaintiff alleges, “[u]ntil Defendant [Blakeney] appeared in open court on May 18 and testified as to the receipt and distribution of the tax refund, Plaintiff was unaware of these occurrences. As Defendant [Blakeney] himself appeared and testified as to these matters, no further notice was required. Due process was satisfied.” Where a person is to be held in indirect civil contempt of court, notice, unless waived, is always required. Plaintiff appears to argue that since Blakeney appeared in court and testified to spending his tax refund, it may be punished as direct civil contempt of court, which requires no formal written notice to the alleged contemnor. Plaintiff cites Cesena v. DuPage County (1990), 201 Ill. App. 3d 96, 558 N.E.2d 1378, rev’d (1991), 145 Ill. 2d 32, 582 N.E.2d 177, in support of its position.

In Cesena, attorney Jeff Fawell was ordered by the court to divulge the identity of his client and the address of an accident in which the client was involved. (Cesena, 201 Ill. App. 3d at 102, 558 N.E.2d at 1382.) The court ordered Fawell to make the disclosure before 4:30 p.m. that day, and recessed until 9:30 a.m. the next morning for status. The next morning the court asked Fawell whether he had disclosed the information. Fawell, through his attorney, stated he had not and would not disclose the information. Fawell was held in contempt of court. Fawell appealed. The appellate court found there had been no violation of Fawell’s due process rights, even though Fawell had not been provided with formal written notice of the charges against him. Specifically, the court stated, “this is an instance where the trial court properly summarily punished Fawell even though the contemptuous conduct occurred out of the court’s presence, given that Fawell admitted in open court that he would not comply with the court order.” (Emphasis added.) Cesena, 201 Ill. App. 3d at 113, 558 N.E.2d at 1389.

Plaintiff is correct in its contention that direct civil contempt of court may be punished summarily, without written notice of the charges to the contemnor. However, Blakeney may not be punished for direct civil contempt of court in this case. Direct civil contempt of court requires that the alleged contemnor state he will not comply with the order of the court (see Cesena, 201 Ill. App. 3d at 113, 558 N.E.2d at 1389), or an unequivocal refusal to perform an affirmative act for the benefit of an opposing litigant, in open court, although directed to do so by the court (Betts II, 200 Ill. App. 3d at 52, 558 N.E.2d at 421). In the present case Blakeny did not testify he would not comply with an order of the court, nor was Blakeney ordered to perform an affirmative act, in open court, which Blakeney refused to do. Thus, Blakeney could not be held in direct civil contempt of court and plaintiff may not utilize this argument to obviate the fact Blakeney was never given notice, as required by due process, of the charges against him.

III. Indirect Civil Contempt Of Court

The court additionally erred in finding Blakeney was in indirect civil contempt of court. In Betts II (200 Ill. App. 3d at 43, 558 N.E.2d at 415), we stated:

“The primary determinant of whether contempt proceedings are civil or criminal in nature is the purpose for which contempt sanctions are imposed. If contempt sanctions are imposed for coercive purposes — to compel the contemnor to perform a particular act — the contempt is civil in nature. On the other hand, criminal contempt sanctions are imposed for the purpose of punishing past misconduct.”

Blakeney was purportedly ordered to provide plaintiff with copies of his tax returns "within five days of filing and not dispose of his tax refund.

Holding Blakeney in contempt of court for failing to provide plaintiff with copies of his tax returns within five days of filing did not have the effect of coercing Blakeney to produce the tax returns, but rather to punish him for failing to produce the tax returns within five days of filing. Criminal sanctions are retrospective in nature; they seek to punish a contemnor for past acts which he cannot now undo. Civil sanctions are prospective in nature; they seek to coerce compliance at some point in the future. (Betts II, 200 Ill. App. 3d at 46, 558 N.E.2d at 417.) Blakeney did not provide plaintiff with copies of his tax returns within five days of filing, but he did provide plaintiff with copies of the tax returns on June 8, 1992, prior to the contempt hearing. Thus, at the contempt hearing on June 15, 1992, the purpose of holding Blakeney in contempt of court was apparently not to coerce him to comply at some point in the future, but to punish him for failing to provide plaintiff with copies of the tax returns within five days of their filing.

Similarly, Blakeney could not properly be held in indirect civil contempt of court for disposing of his tax refund. Disposing of his tax refund was a past act which Blakeney could not undo. Accordingly, holding Blakeney in contempt of court for disposing of his tax refund had the effect of punishing him for doing something in the past. Since coercion is the goal of indirect civil contempt of court and punishment is the goal of criminal contempt of court, Blakeney could not properly be held in indirect civil contempt of court as a method of punishing him for past misconduct. As Blakeney correctly notes in his brief, the proper procedures for indirect criminal contempt of court were not followed in this case.

IV. The Sanction

The court erred in the present case in holding Blakeney in indirect civil contempt of court and ordering him to serve 30 days’ incarceration unless he paid $600. In Betts II (200 Ill. App. 3d at 56, 558 N.E.2d at 424) we stated, “[imprisonment for civil contempt is unique in that the contemnor may secure his immediate release from incarceration by either complying with the court order which he has refused to obey or demonstrating that he is unable to comply with that order.” Since Blakeney had not disobeyed an order requiring him to pay $600, the court erred in ordering that Blakeney could only obviate imprisonment by paying $600. This does not permit Blakeney to secure his release by “complying with the court order which he has refused to obey.” Betts II, 200 Ill. App. 3d at 56, 558 N.E.2d at 424.

Moreover, even if Blakeney had disobeyed an order requiring him to pay $600, the court’s refusal to allow him the opportunity to demonstrate he was unable to pay $600 would have been in error. As we stated in Betts II, the contemnor may secure his release by demonstrating he is unable to comply with the order. Betts II, 200 Ill. App. 3d at 56, 558 N.E.2d at 424.

V. Conclusion

Finally, although not raised by either party, we note the absence of a judgment against Blakeney. The instant matter arises as the result of Blakeney’s failure to comply with a purported order of the court regarding the post-judgment collection proceedings. Interestingly, although the prevailing party is required, under local rule, to prepare a written order of judgment and present it to the court for signature and entry in the court record, so far as the record before us shows, no written order of judgment has been entered in this case, with respect to any litigant. Moreover, while the docket entries for September 16, 1991, reflect the entry of a judgment against Hoagland, they do not reflect the entry of a judgment against Blakeney. Although it would not cure the defect of the absence of the written judgment, had the original docket sheet remained in the record, we would know with certainty whether a judgment against Blakeney had ever been recorded in the docket entries. In the multiple revisions of the court record, and apparent destruction of the original docket sheets, reference to a judgment against Blakeney may have been inadvertently deleted. As previously mentioned, counsel for Blakeney conceded at oral argument that a judgment had been entered against Blakeney; however, the court record, in its current version, reflects no judgment having been entered against Blakeney and would, therefore, prevent the initiation or continuation of post-judgment proceedings against Blakeney, until such judgment is obtained.

In conclusion, the trial court erred in finding Blakeney in indirect civil contempt of court because he was not given proper notice of the charges against him. The court additionally erred as indirect civil contempt of court cannot be used to punish the alleged contemnor for past misconduct; moreover, the sanction ordered by the court did not permit Blakeney to secure his release by complying with the court order he purportedly violated. The court also erred as it refused Blakeney the opportunity to demonstrate he could not pay $600. We additionally instruct the trial court on the proper use of the nunc pro tunc power, and caution it against holding an individual in contempt of court based upon violation of an order of which no record exists, and against proceeding in post-judgment proceedings against an individual against whom no judgment has been entered.

Reversed.

STEIGMANN, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
      In re MARRIAGE OF LINDA H. ZUKAUSKY, n/k/a Linda H. Smart, Petitioner-Appellee, and KEITH E. ZUKAUSKY, Respondent-Appellant.
    Second District
    No. 2—92—1050
    Opinion filed May 11,1993.
    William J. Parkhurst, of Geneva, for appellant.

      Sharon Brennan-O’Neil, of Geneva, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Keith Zukausky (the father) appeals after the trial court ordered that child support be increased and extended past his minor daughter’s eighteenth birthday, that he pay college expenses for his adult son, and that he pay arrearages for past-due child support. On appeal, the father contends that (1) the trial court lacked jurisdiction to increase child support because Linda Smart (the mother) had not filed a motion to increase child support; (2) the increase in child support was an abuse of the trial court’s discretion; (3) the trial court erred when ruling on the duration of child support for his minor daughter when no evidence had been presented on that issue; (4) the trial court improperly excluded evidence of his daughter’s projected standard of living if the marriage had not been dissolved; (5) the setting of child support arrearages was unsupported by the evidence; and (6) the setting of contribution for college expenses was an abuse of the trial court’s discretion.

The parties were married in December 1969 and had two children, Colin and Tascha. The marriage was dissolved on October 22, 1982. Under a supplemental order entered on January 6, 1983, the father was ordered to pay $625 per month for child support in bimonthly installments of $312.50. The order did not specify that the support was a specific amount per child or that support ceased or was reduced when the children reached 18 years of age or graduated from high school.

Colin graduated from high school in June 1991. Believing that he was no longer obligated to provide support for Colin, the father unilaterally reduced his child support payment by one-half to $312.50 per month. On December 18, 1992, the clerk of Kane County sent a letter to the father informing him that the supplemental order did not allow for the reduction of child support when Colin became 18 years old. The clerk wrote that the father would have to petition the court to modify the order. The letter also informed the father that, as of December 1,1991, the amount of child support in arrears was $1,874.99.

The father was not present in court when the trial court set the arrearage amount at $2,499.99 in an order filed on January 9, 1992. On January 29, 1992, the father filed a motion to vacate the January 9 order and a petition to modify the dissolution judgment, seeking to reduce child support. On April 8, 1992, the mother filed a petition for contribution to college expenses as Colin had enrolled as full-time student at Elgin Community College (ECC).

A hearing was held on the parties’ motions on July 21, 1992. The father testified that he had recently moved out of his marital residence in Michigan, which he shared with his second wife and their daughter, Abby. Their troubles stemmed, according to the father, partly from allegations that he had sexually abused Tascha, his daughter in Illinois. The Department of Children and Family Services (DCFS) closed the case for lack of evidence.

The father then presented as evidence a copy of a temporary order for custody, support, and visitation entered in Michigan. The father voluntarily agreed to pay $204 a week for the support of Abby and $816 a week “alimony” to his second wife. The father testified that this $53,000 yearly obligation, coupled with his living expenses, leaves him with a net income of approximately $12,000 a year. The father acknowledged that he was the party who filed for divorce and did so after the petition for college expenses had been filed by the mother in Illinois, although he claimed that these pleadings were not linked. The father also admitted that he voluntarily paid a $27,000 hospital bill for his second wife’s son, for whom he had no legal obligation to provide medical benefits.

Colin Zukausky testified that he attended ECC and paid approximately $1,650 for tuition, fees, and books for the previous school year. He also worked 35 to 40 hours a week to finance his college education. After acquiring his associate’s degree at ECC, Colin plans to transfer to Southern Illinois University (SIU) for his final two years. Upon further examination by the court, Colin testified that his transportation expenses, i.e. gas, insurance, and car maintenance, were approximately $1,500 a year. Colin anticipated that the cost for his upcoming school year at ECC would be approximately $2,000.

The mother testified that her precarious financial condition prevented her from contributing toward Colin's college education. The family’s adjusted gross income for 1991 was approximately $33,800. She and her second husband drove older vehicles, and their home was in need of repair. The mother had to quit her job as a waitress in July 1991 because she broke her ankle. She has a college degree in sociology and can type 91 words per minute. She further testified that she planned to reregister as a substitute teacher for the coming school year and attempt to obtain her teaching certification.

After the arguments of counsel, the trial judge stated he would make a decision in a few days but wanted to express some observations. The judge was concerned that the father’s child in Michigan was to receive $10,816 a year for support while Tascha, the father’s daughter in Illinois, would receive only $3,784 (actually $3,744) a year, based on the father’s recommendation of $312 a month. The judge found that to be “inequitable.” The judge also stated that the father’s first family was “subsidizing” the second family when the second family received $53,000 a year for alimony and support, leaving little money for child support and college expenses for the father’s children in Illinois. The judge said he would ask the father to pay $2,000 for Colin’s second year at ECC and 75% of Colin’s expenses, including tuition, fees, books, and room and board, when he attended SIU. The judge requested that an order be written to that effect and continued the decision on the issue of child support. Such an order was entered on August 5, 1992, specifying that the father’s obligation to pay for schooling at SIU was limited to no more than three academic years.

On August 4, 1992, the trial court rendered a decision on the child support issue. The trial court found that the Michigan order “was not entered in good faith but rather for the purposes of reducing [the father’s] ability to pay child support in Illinois.” Further, the father has a gross income of at least $83,000 and voluntarily agreed to pay $53,000 in support and “alimony” to his Michigan family. The court ordered that the father pay $204 a week in support for Tascha because he pays the same amount to support his minor child in Michigan. Such support would continue “until Tascha becomes 18 years of age or for one summer school session beyond her 18th birthday.” The trial judge stated that he was persuaded to increase child support because the father had paid a $27,000 medical bill for his second wife’s son, a child who was not the father’s legal responsibility. Finally, the court ordered that the father pay arrearages as “computed from the delinquent amounts now showing on the [c]lerk of the [c]ourt’s records,” in weekly payments of not less than $25. The father thereafter filed a timely appeal.

We first address the father’s contention that the trial court lacked jurisdiction to increase child support because the mother had filed no motion to increase support. The father also claims that under the local rules of the sixteenth judicial circuit, the mother was required to file an affidavit of income and expenses and that the court was to examine the affidavit when modifying child support. (16th Jud. Cir. Rules 15.05, 15.13 (1988).) Because no affidavit was filed, the father claims that no formal discovery took place and little evidence was adduced at trial concerning Tascha’s financial condition. He argues that the mother’s failure to file a motion to modify support made the order voidable and requires that we reverse the judgment of the trial court.

The mother contends that the trial court had jurisdiction to increase support because the original dissolution judgment contained a clause which provided that the trial court had continuing jurisdiction over the cause. Further, the father’s petition to modify the judgment was the procedural avenue that allowed the trial court to increase child support. The mother also claims that the father’s argument pertaining to the affidavit of income and expenses is waived because the issue was not presented during trial. Absent waiver, the mother argues that the father was the party responsible for filing an affidavit because he was the party who petitioned the court to modify support.

Under section 502 of the Illinois Marriage and Dissolution of Marriage' Act (Act), in a dissolution judgment, the terms related to the support, custody, and visitation of children are modifiable. (Ill. Rev. Stat. 1991, ch. 40, par. 502(f).) If a petition to modify is filed, the judgment may be modified by order of the court. (Ill. Rev. Stat. 1991, ch. 40, par. 511.) Support may be modified only as to installments accruing after the nonmoving party has been notified that a motion to modify has been filed and only upon a showing of a substantial change in circumstances. (Ill. Rev. Stat. 1991, ch. 40, par. 510(a).) When filing and notice have been achieved, the circuit court which originally entered the judgment has jurisdiction over the subject matter and the parties. Ottwell v. Ottwell (1988), 167 Ill. App. 3d 901, 908; Ill. Rev. Stat. 1991, ch. 40, par. 511(a).

Although we agree with the mother that the trial court had jurisdiction in this cause, its authority was limited to the relief sought in the pleadings. In Stark v. Stark (1971), 131 Ill. App. 2d 995, the court reversed the reduction of child support when the only pleading filed was a rule to show cause, alleging that the supporting parent was in arrears. The court reasoned:

“Although section 18 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 19) grants the trial court wide latitude in making adjustments in child support, we believe that the orderly administration of justice would be better served if the trial courts would confine their orders and decrees to the issues made up by the pleadings. If modification can be predicated upon a petition for rule, it requires no great stretch of legal imagination to envision that partition or wage assignment, or any other remedy, could likewise be engrafted upon it. Proper pleading would vanish and we would resort to the hoary witticism of ‘a letter to the judge’.” Stark, 131 Ill. App. 2d at 997.

Two out-of-State cases are also instructive. In Ussery v. Ussery (La. App. 1991), 583 So. 2d 838, the court reversed a judgment decreasing child support because the only relief sought in the custodial parent’s petition was an increase in support. The reviewing court stated that the trial court’s authority was limited to the relief sought in the pleadings. (Ussery, 583 So. 2d at 841.) Further, the petitioner was not “placed on notice that a decrease in child support was a potential substantive result.” (Ussery, 583 So. 2d at 842.) The same reasoning was followed in Terry v. Terry (1981), 50 Md. App. 53, 435 A.2d 815, where the trial court decreased an alimony award when the wife’s pleading only sought an increase.

We hold that respondents in child support modification actions must file a cross-petition if the relief they seek is different from the relief sought by the petitioner. This practice already is followed in at least some Illinois courts (see Winter v. Winter (1978), 69 Ill. App. 3d 359, 361) and in other jurisdictions (see, e.g., Creel v. Creel (Fla. Dist. Ct. App. 1982), 423 So. 2d 419; Banks v. Banks (1980), 275 Pa. Super. 439, 418 A.2d 1370; K. v. K. (1975), 83 Misc. 2d 911, 373 N.Y.S.2d 486).

In the case at bar, the relief sought in the father’s petition for modification was “to reduce the amount of support” and “[f]or any such other and further relief as this Court deems equitable and just.” The mother did not file a cross-petition to increase support for Tascha, but filed a petition for contribution to Colin’s college expenses. This petition did not give the trial court authority to increase child support and it did not notify the father that an increase was possible. Thus, we reverse the order of the trial court increasing child support to $204 per week and order that child support continue at the previous amount of $625 per month. Our holding is without prejudice and does not prevent the mother from filing a petition to increase child support. Based on our holding, we need not discuss the father’s argument concerning the local rules of the sixteenth judicial circuit.

Moreover, we need not address whether the increase in support was an abuse of discretion and whether the trial court erred when lengthening the duration of child support because the mother had not petitioned for an increase in the amount or an extension for the duration of support. However, we will address the father’s remaining contentions as they relate to issues which were properly before the trial court.

The father next contends that the trial court erred when sustaining an objection to evidence related to the standard of living Tascha would have enjoyed if the marriage had not been dissolved. We address this issue because the father attempted to admit this evidence to support a reduction in child support, which was the basis for the hearing. As such, we analyze this issue only as it relates to the father’s attempt to reduce child support.

The father testified that he could not have obtained his present job while married to his first wife. The following colloquy occurred:

“THE [FATHER]: Okay. I interviewed for the position. I took my wife with me when we interviewed, and we ultimately accepted the job. And she has certainly participated in the necessary events as part of my occupation and employment.
MR. PARKHURST:
Q. And what are some of those necessary events?
A. Company picnics, dinners with customers and with other employees, other officers in the company, etcetera.
Q. And you believe that your current wife has been an asset to you in those social circumstances?
A. She certainly has.
Q. Do you believe that you would have had the same chance for advancement had you remained married to Mrs. Smart?
MS. O’NEIL: Objection, your Honor.
THE [FATHER]: No.
THE COURT: Sustained.
MR. PARKHURST:
Q. The guidelines call for deviation based upon the environment which the child would be living in had the marriage not broken up.
How would you envision the environment for Tascha and Colin if your marriage had not broken up?
A. If it had not broken up, I would at most have been making $25,000 a year or that amount — approximate amount at this point in time.
Q. All right, sir.
A. Gross, not net.”

The father claims that had he been allowed to complete his testimony about the standard of living that would have existed if he were married to his first wife, it would have shown that the support award of $204 a week was “patently unfair.”

The mother argues that the father’s testimony about his chances for advancement if he had remained married to her was irrelevant and led to speculation as to what the family’s standard of living would be today. She claims that the appropriate way to determine the standard of living a child would have enjoyed is the present earnings of the supporting parent, citing In re Marriage of Moore (1983), 117 Ill. App. 3d 206.

The mother steers us to a case which we find particularly persuasive. In In re Marriage of Boyden (1987), 164 Ill. App. 3d 385, the father argued that his increased income, State lottery winnings obtained from a ticket purchased by his second wife, would not exist if he were married to his first wife. Thus, he concluded that his son’s standard of living would not be any higher if the first marriage had continued. (Boyden, 164 Ill. App. 3d at 388.) This court rejected that argument and found significance in the fact that the father’s financial resources had increased substantially. (Boyden, 164 Ill. App. 3d at 388.) We recognize that the Boyden court did not discuss the relevancy of testimony concerning the son’s potential standard of living if the first marriage had not dissolved. However, we believe Boyden demonstrates that the reason why there has been a substantial increase in income is unimportant. The important factor is that there indeed has been a substantial increase in income.

Further, the court’s ruling on an objection to evidence will not be reversed absent an abuse of discretion. (Progress Printing Cory. v. Jane Byrne Political Committee (1992), 235 111. App. 3d 292, 304.) We find no abuse of discretion here. The father testified, without objection, that if he had remained married to his first wife, he would be earning approximately $25,000. Such testimony was evidence of his daughter’s standard of living if the marriage had continued. The trial court was then left to weigh the credibility of that opinion. However, the father’s prediction that he would not have advanced in his career if he had remained married to his first wife was irrelevant and highly speculative. The trial court was well within its discretion in disallowing such evidence.

We next address whether the setting of child support arrearages was supported by the evidence. The father contends that there was no testimony presented about the arrearage. Further, the trial court’s order was ambiguous as it set the arrearage as the amount “computed from the delinquent amounts now showing on the [cjlerk of the [cjourt’s records.” Finally, the father claims that the trial court never addressed his motion to vacate the order of January 9, 1992, setting the arrearage amount at $2,499.99.

The mother responds by contending that the trial court, at the beginning of the hearing, included the father’s motion to vacate the January 9, 1992, order as one of the issues to be addressed. The father had testified that he believed support ended when a child reached 18 years of age, but that belief was not reflected in the dissolution judgment or supplemental order. Because no such agreement existed, the mother claims the trial court properly awarded arrearages. Moreover, the order for arrearages was not ambiguous as it was based on a set dollar amount tabulated by the clerk of court.

The law pertaining to accrued child support is presented in In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 914, questioned on other grounds, In re Marriage of Hawking (1992), 240 111. App. 3d 419, and Deardueff v. Deardueff (1986), 149 Ill. App. 3d 406, 410:

“The well-settled rule in this State is that past-due installments of child support are the vested right of the designated recipient; thus, the court lacks the authority to modify those amounts that have already accrued. [Citations.] Furthermore, a party may not unilaterally terminate child support payments. [Citations.] The modification of such payments is a judicial function; the court’s decision to modify the payment of child support is discretionary in nature and only takes effect prospectively.” Erickson, 136 111. App. 3d at 914.

In Finley v. Finley (1980), 81 Ill. 2d 317, our supreme court discussed the proper procedure a supporting parent should follow to reduce lump-sum support payments:

“It is the function of the court to determine whether there should be a pro rata reduction in lump-sum periodic support payments when one of several children is emancipated, or whether other equitable considerations require that the reduction be a lower amount, or in fact whether there should be any reduction in the payments. Automatic reduction in support payments in a case such as the one before us constitutes an infringement upon the discretionary powers of the court to modify an award.” Finley, 81 111. 2d at 329.

Because past-due installments are vested rights that are unmodifiable, the only way the trial court could have granted the father’s motion to vacate the arrearage order was if it found that, in fact, there was no arrearage. Specifically, the trial court would have to find that the original judgment for dissolution provided that the father could reduce support payments when one of the children became emancipated. Neither the dissolution judgment nor the supplemental order contains such a provision. Under the rationale of Finley, the support payments had accrued and were the vested rights of the mother.

The father argues that the court could not set the arrearage because the only evidence pertaining to the arrearage was his testimony that he and the mother had made an agreement that support would end when the child became emancipated. However, the mother’s attorney objected to this line of questioning and stated that the record, specifically the dissolution judgment, was proof of the agreement between the parties. According to the father, there was evidence of this agreement between him and the mother concerning the reduction in child support:

“Q. Now, if you will, please tell the Court your understanding of the marital settlement agreement as to child support when one of the children became emancipated?
A. The prove-up and the trial and all of the offers back and forth were structured by my attorney and Linda’s attorney at the time. They were all structured as a per-child basis. And so my understanding was that the support would be reduced by 50 percent as soon as Colin was emancipated, which was defined as graduation from high school or reaching the age 18, whichever occurred first.”

The father, as appellant, had the duty to provide a complete record on appeal. If the appellant fails to provide the portion of the record to support his argument, then the trial court is presumed to have ruled correctly. (Lakeland Property Owners Association v. Larson (1984), 121 111. App. 3d 805.) The father could have provided transcripts of the original prove up and trial to show the existence of the agreement. Without those transcripts, there exists no evidence to substantiate his claim that he could reduce support by 50% when Colin became 18 years old.

The father’s final contention is that the award of college expenses for Colin was an abuse of discretion. He claims that the contribution to college expenses, together with his child support obligation in Illinois and the temporary order in Michigan requiring him to pay $1,020 a week in alimony and support, leaves him with little or no income on which to survive. Based on his admitted income, he claims the award of college expenses was excessive.

Under section 513 of the Act, the court may award educational expenses for adult children for college or professional training. (111. Rev. Stat. 1991, ch. 40, par. 513.) Factors to consider in determining the amount of an award include:

“(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” (111. Rev. Stat. 1991, ch. 40, pars. 513(a), (b), (c).)

The determination of education expenses is in the trial court’s discretion. In re Support of Pearson (1986), 111 Ill. 2d 545, 551.

We believe that the award of college expenses was not an abuse of discretion, taking into account all of the father’s support obligations. At the hearing, there was testimony that the father’s gross income for 1991 was $92,900. The father asserted that his yearly base salary averaged at $77,300. He then included the value of a company car, $1,002, and the four-year average of his yearly bonus, which was $17,760 (although he figured the bonus as $14,661.67 in determining his gross income). The father averaged his bonus because it varied significantly from year to year. He acknowledged that through July 16, 1992, he had earned $71,651, with 5V2 months remaining in the calendar year. He stated that the $71,651 figure included the $27,055 bonus he received for 1991.

“Net income” is defined under the Act as the total of all income minus Federal and State income tax, social security payments, mandatory retirement contributions, union dues, individual and dependent health insurance premiums, prior support and maintenance obligations actually paid pursuant to a court order, and other reasonable and necessary expenditures. (111. Rev. Stat. 1991, ch. 40, par. 505(aX3).) Using the father’s figure for gross income and his figures for Federal, State and FICA tax, Medicare tax, health insurance, and auto expenses, the father had a net income of $68,259.04.

The temporary support order entered in Michigan was not included in our determination of the father’s net income because it is not a prior obligation for support. We recognize that the Michigan order is dated June 5, 1992, before the order awarding college expenses was entered in this cause. We interpret the word “prior” in section 505(aX3Xg) to mean obligations to a family that is “first in time” in relation to another family. However, this does not mean that the father’s out-of-State obligations are irrelevant in deciding whether an award of college expenses is reasonable. (See Greiman v. Friedman (1980), 90 Ill. App. 3d 941.) The court should not ignore the supporting parent’s obligations to a second family and should consider that factor in deciding the appropriate modification award for the first family. Fedun v. Kuczek (1987), 155 111. App. 3d 798, 803.

Although section 505(aXl) of the Act is only a guideline for awarding child support, we believe it is a helpful source in determining whether the award of college expenses was an abuse of the trial court’s discretion. The statute suggests that a supporting parent should contribute 32% of his or her net income to support three children. (111. Rev. Stat. 1991, ch. 40, par. 505(aXl).) Thirty-two percent of the father’s yearly net income is $21,842.89. Subtracting the two child support obligations from $21,842.89 leaves a balance of $3,734.89. This is more than the $2,000 the father is to contribute to Colin’s education for one year at ECC. There was no evidence presented as to the cost of tuition, fees, books and room and board at SIU, so we do not know if 75% of that figure is reasonable in relation to the guideline in section 505(aXl).

However, there was sufficient evidence of the financial resources of both parents and of their son, as required under section 513 of the Act. Given the father’s greater ability to pay and the precarious financial condition of the mother and the son, we hold that the court did not abuse its discretion in ordering the father to contribute $2,000 for one year at ECC and 75% of the son’s expenses at SIU. The son and/or the mother is obligated to pay the remaining 25% of expenses, which is fair given their financial resources.

The father relies on In re Marriage of Calisoff (1988), 176 Ill. App. 3d 721, 729, where the reviewing court found the trial court abused its discretion when ordering the supporting parent to pay all of his children’s college expenses, which were well over $20,000 a year. In the cas at bar, the father’s obligation to contribute to Colin’s college expenses is reasonable based on his net income, the mother’s and Colin’s financial condition, and the fact that the father is not solely responsible for the expenses. We find no abuse of discretion.

We wish to make a final note concerning the temporary support order entered in Michigan. The trial court was very suspicious of the order because the father had voluntarily agreed on the amount for child support, $204 per week, and the amount for alimony, $816 per week. Such an award is unreasonable because it excessively depletes the income available to the Illinois family. Attached to the father’s brief is the formula used to calculate the amount of child support for his child in Michigan, which took into account his support obligations in Illinois. No justification was presented by the father for the $816 per week alimony award to his second wife. Now that the father’s support obligations have increased in Illinois, due to the award of college expenses, the father is in a position to modify the temporary order in Michigan in order to ease the burden he voluntarily placed upon himself.

For the foregoing reasons, the order increasing the amount of child support and extending the duration of child support is reversed. The order setting child support arrearages and awarding college expenses is affirmed.

Affirmed in part; reversed in part.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE COOK

text:
      In re MARRIAGE OF JAMES L. SPEAR, Petitioner-Appellee, and TRINDA L. SPEAR, Respondent-Appellant.
    Fourth District
    No. 4 — 92—0870
    Argued April 13,1993.
    Opinion filed May 6, 1993.—
    Rehearing denied June 3,1993.
    Curt W. Ferguson (argued), of the Rutherford Institute, of Salem, and Duane D. Young, of Heckenkamp, Simhauser & La Barre, P.C., of Springfield, for appellant.
    John W. Foltz (argued), of Glasgow Law Office, P.C., of Monticello, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

This appeal is from an order of the circuit court of Douglas County denying Trinda Spear’s petition for contribution from James Spear to the college expenses of their emancipated child, Patience. We affirm.

James and Trinda Spear were married April 18, 1970. They have two children, Stephen and Patience. On February 18, 1986, the trial court entered a written order dissolving the parties’ marriage. In the order the trial court approved a marital settlement agreement, awarded custody of the minor children to Trinda, and ordered James to pay unallocated child support and maintenance of $200 per week. On May 25, 1989, the trial court reduced the weekly child support and maintenance payment to $135 based in part on Stephen reaching majority. On June 18, 1991, after Patience reached majority, James filed a motion to terminate unallocated child support and maintenance. On July 5, 1991, Trinda filed a petition to modify the judgment of dissolution asking for a contribution from James to Patience’s upcoming college expenses. On November 7 James filed a motion for temporary abatement of child support and maintenance because of a temporary loss of income due to a strike by his union. James filed a response to the petition to modify on the day of the hearing, December 2, alleging Patience was enrolled at Indiana Bible College, a nonaccredited institution, and that Patience’s curriculum was not specifically training her for any particular career or occupation.

At the hearing on the petition James and Trinda both testified. Evidence established that during the spring of 1991 Patience was deciding where to go to college and she discussed her decision with James and Trinda. Trinda testified that Lakeland College and Indiana Bible College were the two primary colleges under consideration, and that Patience eventually decided to attend Indiana Bible College starting in the fall of 1991. Trinda stated that Patience applied for a scholarship and wrote an essay explaining why she wanted to attend Indiana Bible College; the trial court sustained an objection to the admission of the essay. James testified he had understood that Patience was going to attend Lakeland College in a program where she would learn to help handicapped children. He did not find out she would attend Indiana Bible College until a week before her enrollment. James stated he did not object to Patience going to college “if she does something that will help her in the future,” and was accordingly concerned about Patience going to Indiana Bible College:

“Well, I don’t think — as far as Bible College, Bible College won’t hurt her; I’ve got nothing against the [B]ible, but the classes she’s informed me she’s taking doesn’t — and she’s even made the statement, it will not qualify her to be a receptionist or secretary or anything.”

Trinda felt Indiana Bible College “has helped [Patience] to grow up and mature even in the short time that she’s been there.” Trinda indicated she feels the strong points about Indiana Bible College are as follows:

“It gets her — I believe that it gets her into the world without being totally on her own; that she has some supervision and gets her established in herself before she has to — you know she will eventually probably want to go to a secular school, at least a couple of years. But I feel like from the way she’s expressed to me what she wants, that this is a good place for her to start.”

The testimony indicated Indiana Bible College is located in one building with supervisors in every hall, organized activities, rules, regulations, and curfews. Trinda described Patience’s fall semester freshman classes as three hours of Soteriology (theology dealing with salvation), three hours of Old Testament Survey, two hours of Orientation of Christian Living, three hours of English, one hour of Chapel, and one hour of Journalism. Trinda admitted that Indiana Bible College is not accredited and that the credits Patience earned are not transferable. She also stated the curriculum Patience is taking is probably not training her for any secular occupation. Indiana Bible College has programs lasting two, three, or four years, but there was no testimony which program Patience was pursuing. Patience was not present at the hearing and, therefore, did not testify.

The trial court terminated the unallocated child support and maintenance, and denied Trinda’s petition to modify for college expenses. The trial court stated:

“Well, cutting through everything, I don’t think that this course of study as Patience is engaging in, is what is designed by Section 513. It may be beneficial for her spiritually] and benefit her soul, but it does not prepare her to do anything. [Section] 513 talks of college education, professional or other training after high school or while still attending high school it can be ordered to continue.
These credits that she’s earning at this institution are nontransferable; it’s not an accredited institution; it does not prepare her to make a livelihood in the secular world or to do anything in the secular world.
If this were an institution that was accredited, and by way of example, and I don’t mean to endorse like Parkland or Lake Land or the University of Illinois, or Eastern Illinois, but a college whereby upon completion she would be prepared to do something, it would be a different situation.”

On January 3, 1992, Trinda filed a motion for rehearing or to vacate judgment. On January 17 Trinda filed an affidavit from “a high-level administrator of Indiana Bible College” stating that “I have

more requests from employers seeking our graduates to fill paying jobs than I can fill with the number of graduates available.” In addition the administrator stated “academic credits earned by students of Indiana Bible College *** are routinely accepted at other institutions, many of which are accredited by national accrediting agencies.” James filed a motion to dismiss alleging the motion for rehearing or to vacate was not timely filed. James’ motion was denied. On September 28, the trial court denied Trinda’s motion, stating there was no showing of a benefit to Patience except that she was maturing at Indiana Bible College. Trinda filed a timely appeal.

James argues this court lacks jurisdiction to review the decision of the trial court because Trinda did not file her motion for rehearing or to vacate judgment within 30 days of the judgment order. (See Ill. Rev. Stat. 1991, ch. 110, par. 2—1203.) The trial court properly found the motion timely, based on a certificate of service indicating the motion was mailed to the parties within the allowed 30 days, and representation of counsel at hearing that the motion was mailed to the court the same day. See In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 852, 493 N.E.2d 1088, 1090.

On the merits, Trinda argues the trial court unlawfully interfered with her authority as custodial parent to direct the education of her child. (See Wisconsin v. Yoder (1972), 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526; In re Marriage ofTisckos (1987), 161 Ill. App. 3d 302, 310, 514 N.E.2d 523, 528.) We find no such issue here, where Patience is an adult, and the trial court is not interfering with her decision to go to Indiana Bible College. The proper focus is whether the trial court abused its discretion (In re Support of Pearson (1986), 111 Ill. 2d 545, 551, 490 N.E.2d 1274, 1277) in finding that James was not required to contribute to Patience’s college education in accordance with section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act), which provides:

“The court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age ***. The authority under this Section to make provision for education and maintenance extends not only to periods of college education or professional or other training after graduation from high school but also to any period during which a child of the parties is still attending high school, even though he or she attained the age of 18.” 111. Rev. Stat. 1991, ch. 40, par. 513.

The trial court must decide whether to order a contribution for educational expenses of an emancipated child based on “all relevant factors,” including the financial resources of the parents and the child, and the standard of living the child would have enjoyed had the marriage not been dissolved. (Ill. Rev. Stat. 1991, ch. 40, pars. 513(a), (b), (c).) Not every family chooses to send its children to college. A child does not have an absolute right to a college education. We find relevant factors for the trial court to consider would include (1) the cost of the school (Greiman v. Friedman (1980), 90 Ill. App. 3d 941, 947, 414 N.E.2d 77, 82; Pearson, 111 Ill. 2d at 552, 490 N.E.2d at 1277), (2) the programs offered at the school (Pearson, 111 111. 2d at 552, 490 N.E.2d at 1277; see also Willcutts v. Willcutts (1980), 88 Ill. App. 3d 813, 819, 410 N.E.2d 1057, 1062), (3) the child’s scholastic aptitude (Greiman, 90 Ill. App. 3d at 946, 414 N.E.2d at 81), (4) how the school meets the child’s goals (see In re Marriage of Harsy (1990), 193 Ill. App. 3d 415, 423, 549 N.E.2d 995, 999-1000; Jenks v. Jenks (Mo. 1964), 385 S.W.2d 370, 378 (“the child is being afforded an education reasonably adapted to her capacity and aptitude, at an accredited institution”)), and (5) the benefit the child will receive from attending the school (see Harding v. Harding (1978), 59 Ill. App. 3d 25, 28, 374 N.E.2d 1304, 1307 (“[t]he benefits of attendance at, as distinct from graduation from a college or university, are intangible and we decline to measure one against the other”); Willcutts, 88 Ill. App. 3d at 820, 410 N.E.2d at 1062 (“Brian is a good student embarked upon a serious course of study [at Illinois Wesleyan University]”)). While some of these factors overlap, we believe they are the concerns that would have been addressed by the parents, had they not divorced, before spending their money to help their child attend college, professional school, or other training after high school. See Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 580, 376 N.E.2d 1382, 1390; Pearson, 111 Ill. 2d at 551, 490 N.E.2d at 1277; Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 497, 509 N.E.2d 729, 739.

Here, James discovered that Patience was going to attend Indiana Bible College one week before she planned to enroll, and he expressed his objection to her decision. He expressed concerns that (1) Indiana Bible College is unaccredited, (2) her credits may not be transferable, and (3) the curriculum Patience is taking does not prepare her to do anything. While we disagree with James’ claim that the curriculum is not preparing Patience to do anything, James expressed reasonable concerns which the trial court properly considered in denying Trinda’s motion for college expenses. Trinda explained that Indiana Bible College was a good place for Patience to mature after high school before going to a different “secular school.” While a more protected environment at a school teaching “Christian living” may be helpful to a recent high school graduate, the trial court had to decide whether James should contribute to these expenses, when Patience might later decide to go to a secular college. That concern is particularly important given the evidence that Indiana Bible College is unaccredited, and credits may not transfer to other colleges. In addition, there was no testimony regarding Patience’s goals and interests (other than testimony from James that she was interested in helping handicapped children), and how Indiana Bible College fits into her plans. While a student attending college as a freshman often will not have a definite direction, in this case there was no evidence that Indiana Bible College met Patience’s educational needs, other than testimony that it helped her mature.

Trinda attached an affidavit to her motion to vacate, from a “high-level administrator” at Indiana Bible College, which stated job placement for Indiana Bible College graduates is not a concern and that Indiana Bible College credits are accepted by many accredited schools. Although the issue has not been raised on appeal, it appears this testimony could have been produced at trial and the trial court, therefore, need not have considered it for the first time in a post-trial motion. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1203; see In re Marriage of Davis (1991), 215 111. App. 3d 763, 776, 576 N.E.2d 44, 53.) Only if diligence has been shown need a court consider whether the presence of disputed affidavits requires an evidentiary hearing. (See In re Marriage of Frieke (1988), 174 Ill. App. 3d 191, 195-96, 528 N.E.2d 370, 373; In re Marriage of Frazier (1990), 203 111. App. 3d 847, 854, 561 N.E.2d 160, 165.) In any event the affidavit here did not require the trial court to change its ruling. The statement that the administrator had more requests from employers than he could fill was only a conclusion. It would have been more helpful if the administrator had stated an employment rate for graduating students. Despite the affidavit’s general comments about acceptance of credits by other schools, it remains clear that Indiana Bible College is not accredited.

The trial court did not abuse its discretion in denying Trinda’s petition for college expenses considering the factors outlined above. We disagree with Trinda’s contention the trial court’s decision favors secular schools over religious schools. We make no attempt to compare the benefits of Bible college and secular schools; we focus instead on the propriety of the school for the particular student based on “all relevant factors.” (See Ill. Rev. Stat. 1991, ch. 40, par. 513.) For example, a trial court might find it unreasonable for a student who intends to go to medical school to start a two-year curriculum at an unaccredited junior college. Here, if Patience had expressed a strong desire to pursue a religious vocation such as working as a missionary or a pastor, her choice to attend a Bible college might be a logical one, and the focus would then shift to other relevant factors such as the financial resources of her parents. The testimony at trial, however, indicated that Patience would probably go to a secular school after Indiana Bible College, even though there were questions whether any of her credits would transfer.

Accordingly, we affirm the decision of the circuit court of Douglas County denying Trinda’s request for contribution from James to Patience’s college expenses at Indiana Bible College.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.