2016 IL App (1st) 160071
No. 1-16-0071
Fifth Division
December 23, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re PARENTAGE OF I.I., a Minor ) Appeal from the Circuit Court
) of Cook County.
(Nanina Lavallais n/k/a Carraway, )
Petitioner-Appellee, ) No. 12 D 50214
)
v. ) The Honorable
) James Kaplan,
Michael Irvin, ) Judge Presiding.
Respondent-Appellant). )
)
______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the trial court’s grant of Nanina Carraway’s petition to
modify child support, in which the trial court ordered respondent, Michael Irvin, to increase
the amount of child support he was paying from $100 per month to $3000 per month.
Respondent appeals, arguing (1) that the trial court erred in denying his motions for a
continuance, which resulted in respondent’s absence from the second day of the hearing,
(2) that the trial court erred in denying his motion to reopen proofs to provide evidence of his
income, (3) that the trial court erred in ordering respondent to pay $3000 per month in child
support and in ordering the payment of retroactive support, and (4) that the trial court erred in
No. 1-16-0071
requiring respondent to provide health insurance for the child. For the reasons that follow, we
affirm in part but vacate the trial court’s judgment concerning the retroactivity of support.
¶2 BACKGROUND
¶3 On January 25, 2012, petitioner, Nanina Lavallais (n/k/a Carraway), filed a parentage
action under the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West
2010)) against respondent, Michael Irvin, regarding their child I.I., who was born on July 27,
2007. 1 On March 2, 2012, petitioner filed a petition for support against respondent, alleging
that respondent was not contributing to the support of their child to the extent of his financial
ability. The petition did not state the amount of support respondent had been paying, nor did
it state what amount petitioner was seeking. On March 13, 2013, after respondent repeatedly
failed to respond to the petition, the trial court entered a temporary default uniform order for
support, which ordered respondent to pay $100 per month beginning April 1, 2013. 2 In
addition, the order reserved the issue of medical insurance coverage, as well as retroactive
child support from January 1, 2011, through March 31, 2013. On August 16, 2013, the court
ordered that the entirety of the temporary support order be made permanent. Up to this point,
respondent had not been involved in the case.
¶4 On August 29, 2014, respondent finally filed his initial appearance in the matter, as well
as a petition for joint custody. On October 9, 2014, petitioner filed a petition to modify child
support, alleging that, upon information and belief, respondent’s income exceeded $300,000
per year. This number was based on the assertion that respondent was a part owner of
1
The record on appeal does not contain a court finding of paternity, but both parties signed a
voluntary acknowledgment of paternity the day after the child was born, and there is no dispute that
respondent is the child’s father.
2
The assistant State’s Attorney representing petitioner (see 750 ILCS 45/18(b) (West 2010)) at
the time imputed respondent’s monthly income as $500. Child support for one child is calculated based
on 20% of the monthly income of the obligor (750 ILCS 5/505(a)(1) (West 2010)), which resulted in the
$100-per-month child support order.
2
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Billboard Live, a nightclub, and was also the chief executive officer of an Amateur Athletic
Union (AAU) basketball team called Mac Irvin Fire. 3 Petitioner argued that child support
should be modified to be based on respondent’s actual income, rather than the $500 monthly
income amount imputed to him during the temporary support hearing on March 13, 2013.
She also asked the court to retroactively modify the child support in accordance with
respondent’s actual income. On November 25, 2014, respondent filed a response to
petitioner’s petition to modify child support, in which he denied the petition’s allegations.
¶5 Up to this point, respondent had not complied with petitioner’s discovery requests. On
December 23, 2014, petitioner filed a petition for rule to show cause against respondent for
failure to comply with Cook County Circuit Court Rule 13.3.1 and Illinois Supreme Court
Rule 214. The record indicates that respondent submitted an unsigned and non-notarized
Rule 13.3.1 disclosure form in February 2015 that had all zeroes for his income.
¶6 On April 2, 2015, the petition to modify child support, petition for rule to show cause,
and respondent’s petition for joint custody were again continued to April 9, 2015. In the
continuance order, the court also required respondent to pay petitioner a $500 lump sum for
past-due child support payments and furnish a signed and notarized financial disclosure
statement pursuant to Cook County Circuit Court Rule 13.3.1 before the hearing on April 9,
2015. Respondent complied with both terms of the court order. According to respondent’s
signed and notarized financial disclosure statement, his gross income for the year 2014 was
$7200, which was made up of gifts from friends and family. He stated that his 2015 income
up to March 2015 was $1880, although he did not specify if it was again made up of gifts.
3
The AAU is a nonprofit multisport organization dedicated to the promotion and development of
amateur sports and physical fitness programs. Amateur Athletic Union, What is the AAU?
http://www.aausports.org/FAQs (last visited Dec. 7, 2016).
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After adding in his $100-per-month expense for child support, his total monthly living
expenses were $627. In the assets section, his only listed bank account was a checking
account with U.S. Bank, which had a value of $0 to $20. He did not list any investment
accounts in the investment accounts and securities section. The only business interest he
listed was a 25% member interest in Olympian Group, LLC.
¶7 The parties came before the court for hearing on the pending motions on April 9, 2015.
During the hearing, respondent testified to his financial situation on direct examination from
petitioner’s counsel. According to the agreed statement of facts from the hearing, 4 respondent
testified that he lived rent-free at his mother’s house. He had not had a regular job or income
since 1998 and was still unemployed. He served as the head basketball coach for the Mac
Irvin Fire AAU team but did not receive any income for his service. He relied on his mother,
fiancée, and occasionally his brother for financial assistance. He was looking for employment
solely in the field of basketball. Respondent had been a part of Antoine Walker’s 5 entourage
until 2010, when Walker declared bankruptcy. During respondent’s time in the entourage,
Walker had given him two vehicles. He admitted that he had invested approximately $40,000
in Billboard Live in 2011 or 2012 but testified that he was not receiving any income from the
investment and was no longer involved with the nightclub. Respondent testified that he “does
not have any interest in any other company or organization.”
4
There was no transcript of this hearing in the record. All information from the hearing on April
9, 2015, was taken from the parties’ agreed statement of facts. The same is true for the hearings on July 7,
July 9, and July 31. To avoid confusion concerning the court proceedings, we indicate where a transcript
was available and where the facts were taken from the agreed statement of facts.
5
Antoine Walker is a former professional NBA basketball player.
4
No. 1-16-0071
¶8 The agreed statement of facts indicates that during examination of respondent, petitioner
submitted a number of social media photographs of respondent as exhibits. 6 Respondent’s
counsel “made numerous objections to the photographs, arguing that they allowed an
inappropriate contextual picture to be painted without rebuttal.” The court denied these
objections, stating that it “was able to maintain the photos in the right context and that
[respondent] would be given an opportunity to address any misapprehensions in rebuttal.”
According to the agreed statements of facts, one photograph depicted respondent with a large
stack of money and a caption reading “ ‘Billboard Live!! About to have me some fun!!’ ”
According to the agreed statement of facts, the photograph was taken at a Billboard Live
event at least one year prior to the hearing date, and the money did not belong to respondent.
Other photographs depicted social media posts in which respondent talked about Christmas
gifts, obtaining a pedicure, and conducting business, among other things. None of these
social media posts was more recent than 32 weeks before the April 9 hearing. The record
does not show whether respondent was asked to explain these photographs. Due to the late
hour, the April 9 hearing was suspended to be continued at a later date. At this point,
respondent had not finished giving his testimony on direct examination from petitioner’s
counsel.
¶9 On May 12, 2015, the trial court entered an order continuing the hearing to July 9, 2015.
¶ 10 On May 15, 2015, petitioner filed a discovery request to respondent regarding documents
related to respondent’s alleged business affiliation with TMT Sportz, LLC, an Indiana
corporation. On June 24, 2015, petitioner filed a motion to compel respondent’s discovery
6
The agreed statement of facts does not expressly indicate that these exhibits were admitted into
evidence. However, the parties discuss them in their briefs as though they were, and we do the same in
discussing them on appeal.
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No. 1-16-0071
compliance, indicating that she had already sent a Supreme Court Rule 201(k) letter to
respondent regarding discovery compliance. On July 2, 2015, the court heard petitioner’s
motion to compel and ordered respondent to comply with petitioner’s discovery request by
July 6, 2015. The court order from the status hearing on July 7, 2015, which is detailed
further below, indicates that respondent finally complied with petitioner’s discovery request.
¶ 11 According to the agreed statement of facts, on the trial readiness status date on July 7,
2015, respondent expressed that he had a conflict with the July 9 hearing date and would not
be able to be present in court. 7 According to the agreed statement of facts, respondent “did
not disclose or explain his sudden unavailability.” Respondent’s counsel requested that the
hearing be rescheduled, but the court denied the request. No reasoning for the court’s denial
is provided in the agreed statement of facts for the July 7 hearing. The court order from this
hearing notes that petitioner communicated her readiness to move on with the trial.
¶ 12 Respondent was not present during the hearing on July 9, 2015. According to the agreed
statement of facts for this hearing, respondent’s counsel made an oral motion to continue the
hearing to a later date so respondent could continue giving his testimony but was again
denied by the court. Petitioner’s counsel “presented documentary evidence and argument” 8
that respondent had a business relationship with TMT Sportz, LLC, an Indiana corporation,
and was a registered agent for the corporation. Respondent could be viewed in photographs
on TMT Sportz’s website from the 2014 “Chicago Summer Jam” basketball tournament,
which cost $595 as a registration fee. Respondent was also listed on the TMT Sportz website
as the contact person for the event. Respondent’s business relationship with TMT Sportz had
7
Although respondent did not explain his reasoning for his conflict with the July 9 hearing at the
July 7 court date, the hearing transcript from October 14, 2015, indicates that he had planned to be in
Georgia in order to assist with a youth basketball camp.
8
The agreed statement of facts does not expressly indicate that this evidence was admitted, but the
parties discuss the evidence in their briefs as though it was, and we do the same in discussing it on appeal.
6
No. 1-16-0071
not been disclosed on respondent’s Rule 13.3.1 financial affidavit. The record does not
contain any testimony regarding the extent of respondent’s involvement with TMT Sportz.
Part of the evidence submitted by petitioner’s counsel was TMT Sportz’s unsigned 2014 tax
return, 9 which stated that its gross income for the year was $50,192, of which $41,900 was
spent on “outside services.” After petitioner’s counsel presented this evidence, respondent’s
counsel made an oral motion to allow respondent to give his testimony via the telephone,
explaining that respondent was out of the state, which was denied. The court found that
respondent’s failure to appear created a negative inference against him and permitted the
presumption that he believed that the evidence against him would be unfavorable. The agreed
statement of facts indicates that the court “found a presumption that ‘outside services’ as
listed on TMT Sportz’[s] tax documents included, at least in part, compensation for
[respondent’s] services” and that the Chicago Summer Jam event was an income-producing
event that was not previously disclosed on respondent’s Rule 13.3.1 financial statement. The
court did not provide any independent basis for drawing this presumption, other than the
previously expressed negative inference against respondent.
¶ 13 Petitioner’s counsel also “presented documentary evidence and argument” of bank
statements as evidence for two bank accounts that respondent maintained with Chase Bank
that were not disclosed in his signed Rule 13.3.1 financial disclosure statement, in which he
had deposited or transferred $28,500.01 in May 2014, $25,850.01 in July 2014, and more
than $87,000 between October 2014 and February 2015. The record does not contain any
evidence that explains where the deposits came from or what expenses they were used for.
Respondent’s counsel objected to all of the documentary evidence submitted by petitioner’s
9
The agreed statement of facts does not identify the exhibits by number. However, the record
contains a stipulated list of exhibits, one of which is the TMT Sportz 2014 tax return.
7
No. 1-16-0071
counsel because there was no person who could authenticate the documents, but the court
overruled the objection and admitted all of the documents into evidence.
¶ 14 Petitioner also testified during the July 9 hearing. On direct examination by her own
counsel, petitioner testified that beginning in 2007, respondent paid for an apartment and
living expenses for petitioner and the child and also provided her with a vehicle to drive.
Respondent provided approximately $3500 per month in child support until 2011. After
2011, petitioner and respondent agreed that respondent would pay $1000 per month for child
support. However, respondent did not adhere to the agreement, and petitioner had been the
child’s sole support ever since.
¶ 15 On cross-examination by respondent’s counsel, petitioner testified that respondent had
paid for her to attend and graduate from college. From October 2013 through April 2015,
respondent paid a total of $4095.10 in child support. After cross-examination ended, the
court asked respondent’s attorney to present any witnesses or evidence on respondent’s
behalf, but the attorney “could not add anything further in light of [respondent’s] absence,”
and the hearing was continued to July 31, 2015, for closing arguments.
¶ 16 Also on July 9, 2015, petitioner filed a motion for direct and indirect criminal contempt
and for sanctions against respondent. 10 In the motion, petitioner detailed facts supporting the
allegation that respondent had been engaging in fraud throughout the course of litigation
through his attempts to mislead the court about his finances and his repeated failure to
comply with discovery rules. The alleged facts included, among others, respondent’s failure
to disclose his active bank accounts, income from Billboard Live, and affiliation with TMT
Sportz.
10
This motion itself is not at issue on appeal. It is included because some facts within the motion
provide helpful context for the issues on appeal.
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No. 1-16-0071
¶ 17 On July 31, 2015, respondent filed his response to petitioner’s motion for direct and
indirect criminal contempt. In the response, he admitted that he was listed as a registered
agent for TMT Sportz but stated that he had never received any income from the business.
Respondent denied that he omitted his bank account information from his signed Rule 13.3.1
financial disclosure statement. He reiterated that, at that point, he was receiving income of
approximately $500 per month.
¶ 18 Closing arguments on petitioner’s petition to modify child support and respondent’s
petition for joint custody were heard on July 31, 2015, and according to the agreed statement
of facts from the hearing, the court found that respondent’s testimony significantly lacked
credibility. Specifically, the court found:
“Mr. Irvin’s testimony lacks credibility to a significant degree, especially as to the
following:
a. Mr. Irvin’s testimony regarding not receiving Billboard income and the
company being dissolved this year, though filled to capacity;
b. Mr. Irvin’s mother and fiancé[e] support him and his fiancé[e] pays all his
expenses;
c. Mr. Irvin has no assets and all he does is coach a team for no pay;
d. Mr. Irvin is not authorized to incur expenses on the Mac Irvin Fire credit card;
e. Mr. Irvin’s disclosure filed pro se, and his updated disclosure that was not
complete;
f. Others paid for Mr. Irvin to attend the NCAA finals with Duke University or go
to Georgia.”
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No. 1-16-0071
¶ 19 Among other rulings irrelevant to the issues on appeal, the court granted petitioner’s
petition to modify child support and set the amount for respondent to pay at $3000 per
month. 11 The court explained that this amount was based on petitioner’s testimony, as well as
a presumed income from TMT Sportz and the bank statements showing that tens of
thousands of dollars ran through respondent’s bank account. The child support was
retroactively applied from January 1, 2011. Finally, the court ruled that respondent must
provide the child with an adequate health insurance policy.
¶ 20 On August 27, 2015, respondent filed a motion to reopen proofs in order to determine his
“actual income.” In the motion, respondent argued that there was insufficient factual
evidence of his income to support the court’s modification of the child support to the amount
of $3000 per month. Specifically, respondent pointed out that there was no testimony
explaining the bank statements submitted by petitioner’s counsel that would help determine
“whether any of the deposits were income or whether the expenses would affect any of the
deposits.” Respondent argued that “[e]quity dictates that proofs should be reopened to
require the Petitioner to provide evidence to carry her burden of proving [respondent’s]
income and for [respondent] to present evidence in his defense.”
¶ 21 On October 14, 2015, the court denied respondent’s motion to reopen proofs. According
to the hearing transcript, the court found that respondent’s actions during the course of the
litigation diminished his credibility, rendering his actual income indeterminable from the
evidence. Relying on section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage
Act (Marriage Act) (750 ILCS 5/505(a)(5) (West 2010)), the court found that since it could
11
According to the transcript from the hearing on October 14, 2015, petitioner’s testimony from
July 9 indicated that the total needs for raising the child amounted to $3000 per month. This fact is not
directly expressed in the agreed statement of facts from the July 9 hearing date.
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No. 1-16-0071
not determine respondent’s actual income from the evidence, it was necessary to deviate
from the statutory guidelines for determining child support and enter a needs-based order. In
doing so, the court found petitioner’s testimony from the July 9 hearing—that she needed
$3000 per month to cover the child’s expenses—credible and reasonable and found that it
“had no alternative but to enter an award based on that amount because [respondent] failed to
appear and give testimony.” The court found that it had not abused its discretion by deviating
from the guidelines for determining child support based on income. Despite argument from
respondent’s counsel, the court, relying on case law, 12 stated that it did not need to explain its
basis for the needs-based order. The transcript also indicates that respondent’s counsel
argued that the court had mistakenly construed respondent’s motion as a motion to
reconsider, instead of a motion to reopen the proofs:
“THE COURT: A motion to reconsider allows a party to bring before the Court
newly discovered evidence, changes in the law, or errors in the Court’s prior application
of existing law. ***
***
RESPONDENT’S COUNSEL: With all due respect, [Y]our Honor *** We didn’t
file a motion to reconsider. *** We argued a motion to reopen the proofs.
THE COURT: And I denied it.
RESPONDENT’S COUNSEL: It has nothing to do—but you cited a motion to
reconsider. *** That’s not the same motion.
THE COURT: I understand.”
12
The court noted that it was relying on In re Marriage of Takata, 304 Ill. App. 3d 85 (1999), and
In re Marriage of Severino, 298 Ill. App. 3d 224 (1998).
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No. 1-16-0071
¶ 22 On December 7, 2015, the parties came before the court for the court’s entry of a custody
judgment disposing of all pending issues. According to the hearing transcript, respondent
argued against the retroactive application of the modified child support award to January 1,
2011. Specifically, respondent argued that petitioner filed her petition to modify child
support on October 9, 2014, and that he was not put on due notice that any modification
would be applied retroactively beyond that date. After hearing arguments from respondent’s
counsel, the court amended the starting date for the retroactive child support from January 1,
2011, to September 1, 2013, making the total amount of past-due support $72,000. The court
determined that the permanent child support order from August 2013, as well as evidence
admitted during trial, put respondent on necessary notice that he could be subjected to
retroactive changes in child support from that date. The court also found that, with respect to
health insurance, “[h]e can go get a policy and pay for it or he can reimburse mom if she does
have a policy. *** That is his obligation.”
¶ 23 The court entered a custody judgment on the same day. With respect to its findings of
fact, the court found:
“A. FATHER failed to appear in court on July 9, 2015, for the final day of
testimony in this case.
B. Based on FATHER’s failure to appear for trial on July 9, 2015, failure to
disclose assets and income, and the inconsistency in his testimony compared with the
physical evidence, it is presumed by the Court that the evidence and testimony
FATHER could have presented would have been adverse to him. [Citation.]
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No. 1-16-0071
C. Over FATHER’s objections, the Court finds that FATHER’s first financial
disclosure statement tendered to MOTHER’s counsel during his pro se representation,
while not notarized, had zeroes in all blanks.
D. FATHER’s second financial disclosure statement tendered to MOTHER’s
counsel was notarized and while it included new information regarding his assets and
liabilities it did not include his interest in TMT Sportz, Inc., nor did it disclose his
Chase Bank account.
E. FATHER’s testimony that he has not had a job since 1998, that he is supported
solely by his mother and fiancé[e], that he has no assets, and that his only job is as a
volunteer coach for the Mac Irvin Fire, is contrary to the evidence.
F. Consistent with the Court in In re the Marriage of Leff, [148 Ill. App. 3d 792
(1986)], by virtue of FATHER’s failure to appear, failure to disclose assets and
income, and the inconsistency in his testimony compared with the physical evidence,
the Court finds that FATHER’s testimony lacks all credibility.
G. While MOTHER testified that the needs of the child totals $3,000.00 per
month, based on FATHER’s lifestyle and incredible testimony, the Court finds that
FATHER’s income could substantiate a child support award in excess of $3,000.00
per month. [Citation.]”
¶ 24 On January 6, 2016, respondent filed a notice of appeal, and this appeal follows.
¶ 25 ANALYSIS
¶ 26 On appeal, respondent raises a number of issues. Respondent argues that (1) the trial
court should have granted his motions for continuance of the July 9, 2015, hearing date,
(2) the trial court should have granted his motion to reopen the proofs to present evidence of
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No. 1-16-0071
his income since he was not present at the July 9 hearing date, (3) the trial court erred in its
determination that petitioner should receive $3000 per month in child support, (4) the trial
court erred in its retroactive application of the modified child support order, and (5) the trial
court erred in requiring him to provide health insurance for the child because petitioner’s
insurance already covered the child. We consider each argument in turn.
¶ 27 I. Motion for Continuance
¶ 28 Respondent first contends that the trial court erred in denying his “two oral motions for a
continuance” of the July 9, 2015, hearing date. As an initial matter, we must first clarify the
orders at issue on appeal. As respondent notes, his counsel requested a continuance on July 7
and again on July 9, both of which were denied and both of which respondent discusses on
appeal. However, respondent’s notice of appeal states that respondent is appealing “the Order
entered July 7, 2015 denying Respondent’s motion to continue [the] hearing”; the notice of
appeal makes no mention of the second, July 9, request for a continuance and its denial. “A
notice of appeal confers jurisdiction on a court of review to consider only the judgments or
parts of judgments specified in the notice of appeal.” General Motors Corp. v. Pappas, 242
Ill. 2d 163, 176 (2011). While there is an exception for those orders that are a necessary step
in the procedural progression leading to the judgment specified in the notice of appeal (In re
Marriage of O’Brien, 2011 IL 109039, ¶ 23), in the case at bar, the July 9 denial of the
continuance cannot be considered such a necessary step, since the July 7 order listed in the
notice of appeal occurred prior to the July 9 one. Accordingly, we consider only the denial of
respondent’s July 7 request for a continuance.
¶ 29 The trial court has the discretion to grant or deny a motion for continuance, and its
decision will not be disturbed on appeal unless it has resulted in a palpable injustice or
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No. 1-16-0071
constituted an abuse of discretion. K&K Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App
(1st) 133688, ¶ 22. “An abuse of discretion occurs only when the trial court’s decision is
arbitrary, fanciful, or unreasonable or where no reasonable person would take the view
adopted by the trial court.” Seymour v. Collins, 2015 IL 118432, ¶ 41. When reviewing for
abuse of discretion, the appellate court does not substitute its judgment for that of the trial
court or determine whether the trial court acted wisely. John Crane Inc. v. Admiral Insurance
Co., 391 Ill. App. 3d 693, 700 (2009).
¶ 30 After a case has reached the trial stage, a party requesting a continuance must provide the
court with “ ‘especially grave reasons’ ” for needing the continuance due to the potential for
inconvenience to the witnesses, parties, and the court. Marc Realty, 2014 IL App (1st)
133688, ¶ 23; see also Ill. S. Ct. R. 231(f) (eff. Jan. 1, 1970) (“sufficient excuse” must be
shown). Additionally, a party requesting a motion for continuance on account of an absence
of material evidence must support the motion with an affidavit showing (1) that due diligence
has been used to secure the evidence, (2) what facts the evidence consists of, (3) if in the
form of testimony, the residence of the witness or, if unknown, that due diligence has been
used to discover it, and (4) that the evidence can be obtained if more time is permitted. Ill. S.
Ct. R. 231(a) (eff. Jan. 1, 1970). A decisive factor is whether the moving party has shown a
lack of diligence in proceeding with the litigation. In re Marriage of Ward, 282 Ill. App. 3d
423, 431 (1996).
¶ 31 In the case at bar, respondent argues that the trial court abused its discretion when it
denied his motion for continuance of the hearing on July 9, 2015. In response, petitioner
argues that the trial court appropriately acted within its discretion when it denied
respondent’s motion for continuance. In support of her position, petitioner argues that
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No. 1-16-0071
respondent had not shown due diligence throughout the course of litigation, specifically with
regard to compliance with discovery rules. Furthermore, petitioner notes that the July 9
hearing date was set on May 29, 2015, meaning that respondent had plenty of time to adjust
his schedule to accommodate the July 9 hearing date. In addition, respondent did not provide
a written request or an affidavit to the court explaining a grave reason for needing a
continuance.
¶ 32 We find petitioner’s arguments to be persuasive. The trial court’s discretionary decision
to deny respondent’s motion for continuance was justified by respondent’s lack of due
diligence displayed throughout the course of litigation. Such was the case in Ward, 282 Ill.
App. 3d at 427-28, where the respondent in a dissolution of marriage case appealed the trial
court’s denial of a motion for continuance due to his attorney’s illness, which was requested
via telephone on the morning of a hearing date. The appellate court affirmed the denial of the
motion in part because the respondent had been granted previous continuances and had also
failed to appear at prior court dates, indicating a lack of due diligence during the proceedings
in the case. Ward, 282 Ill. App. 3d at 432. The court concluded that “respondent’s dilatory
tactics and flagrant disregard of the court’s orders delayed resolution of the dissolution case
and taxed the court’s patience.” Ward, 282 Ill. App. 3d at 432.
¶ 33 We find that the circumstances in Ward align with the case at bar. Here, respondent
repeatedly defied discovery requests from petitioner and orders from the court. In addition, as
the trial court concluded, respondent’s actions during the course of litigation diminished his
credibility regarding his financial situation. Respondent failed to appear at any of the court
dates prior to the entry of the permanent child support order in August 2013. His failure to
appear at these hearings resulted in him defying several court orders requiring him to provide
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No. 1-16-0071
proof of income in order to establish the appropriate amount of child support. After finally
becoming involved in the case in August 2014, respondent failed to timely produce the
financial disclosure form pursuant to Cook County Circuit Court Rule 13.3.1, which
prompted petitioner to file a petition for rule to show cause against respondent in December
2014. When respondent finally produced his Rule 13.3.1 financial disclosure form in January
2015, it showed all zeroes regarding income. Respondent did produce an edited financial
disclosure form in March 2015, which showed income but failed to list his bank accounts
with Chase Bank and his business affiliation with TMT Sportz, both of which petitioner
discovered upon her own investigation. After learning of this omitted information, petitioner
filed a request for production to respondent in May 2015, requesting documents relating to
his business interest in TMT Sportz. Respondent only complied with the second discovery
request after petitioner issued a Supreme Court Rule 201(k) letter and subsequently filed a
motion to compel discovery compliance.
¶ 34 Collectively, respondent’s actions have, to use the words from the court in Ward, delayed
resolution of petitioner’s petition to modify child support and have taxed the trial court’s
patience. Petitioner had expressed her readiness to continue with the trial. In addition, the
well-being of the child depended on a swift resolution of petitioner’s petition to modify child
support. Respondent’s behavior unnecessarily delayed resolution of the appropriate amount
of child support that the court determined that the child needed. Respondent’s lack of due
diligence as represented by the record thus supports the trial court’s justification for using its
discretion to deny the motion for continuance.
¶ 35 In addition, the absence of a written request or affidavit supporting respondent’s motion
for continuance further highlights respondent’s lack of due diligence, especially since it is
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No. 1-16-0071
required by Illinois Supreme Court Rule 231(a) (eff. Jan. 1, 1970). Moreover, the absence of
a written request or affidavit also supports petitioner’s argument that respondent did not
provide a sufficient reason for needing a continuance, as required by Illinois Supreme Court
Rule 231(f) (eff. Jan. 1, 1970). In Ward, in affirming the denial of the motion for
continuance, the appellate court found that the respondent did not provide a sufficient reason
for the continuance, relying on the fact that the respondent did not file a written motion for a
continuance nor did he provide an affidavit concerning his counsel’s illness. Ward, 282 Ill.
App. 3d at 432. Similarly, in In re Marriage of Betts, 155 Ill. App. 3d 85, 95 (1987), the
respondent father in an action for past due child support was appealing, inter alia, the trial
court’s denial of his orally requested continuance of a hearing that he had been ordered to
appear at only a week beforehand. The appellate court affirmed the trial court’s discretionary
denial in part because “respondent could have presented a written motion for a continuance”
prior to the hearing date. Betts, 155 Ill. App. 3d at 95. By contrast, in Bethany Reformed
Church of Lynwood v. Hager, 68 Ill. App. 3d 509, 509-10 (1979), the defendant appealed the
denial of a continuance because he was hospitalized. The appellate court reversed in part
because the defendant had submitted valid affidavits explaining his illness, the identity of his
physician, the hospital he was being treated at, and a time period that he would be
hospitalized. Bethany, 68 Ill. App. 3d at 513.
¶ 36 The case at bar bears more resemblance to Ward and Betts than it does to Bethany.
Similarly to Ward, respondent did not file a written motion for continuance, nor did he
provide a supporting affidavit. Instead, respondent’s counsel orally requested a motion for
continuance at both the status hearing on July 7 and the actual hearing on July 9. However,
the record shows that respondent’s counsel did not provide any reason for respondent’s
18
No. 1-16-0071
unavailability. Based on the information available in the record, it appears that respondent
requested the continuance solely on the basis of his ambiguous “unavailability.” It is
important to keep in mind that the hearing on petitioner’s petition to modify support had
already begun and respondent was fully aware that he was required to complete his testimony
during the July 9 hearing. As previously mentioned, a motion for continuance after trial has
begun must be supported by a grave reason due to the potential for inconvenience to the
witnesses, the parties, and the court. Marc Realty, 2014 IL App (1st) 133688, ¶ 23. Since
respondent failed to communicate a grave reason, or any reason at all, for needing a
continuance after trial had started, the trial court appropriately acted within its discretion
when denying respondent’s motion for continuance.
¶ 37 We find respondent’s arguments to the contrary to be unpersuasive. In support of this
appeal, respondent argues that he showed a significant excuse for his unavailability and that
there was little inconvenience to the witnesses or the court to continue one day of trial.
Respondent also argues that, should his excuse not be deemed sufficient, the ends of justice
necessitated the granting of the continuance.
¶ 38 At the forefront, we note that respondent’s argument that he provided a significant excuse
for the motion for continuance is not factually supported by the record. Respondent asserts
that his counsel explained to the court that he was out of state when the oral motion for
continuance was made. However, the record shows that respondent’s counsel only offered
this explanation when she orally requested the court to allow respondent to testify via
telephone. In fact, the agreed statement of facts shows that when respondent’s first motion
for continuance was requested during the July 7 trial status hearing, respondent “did not
disclose or explain his sudden unavailability.” Thus, contrary to his argument on appeal, the
19
No. 1-16-0071
record shows that respondent only provided an explanation for his absence for the purpose of
requesting telephone testimony and not for the motion for continuance.
¶ 39 However, even assuming arguendo that respondent did explain to the court that he was
out of state when he requested the continuance, we cannot say that his explanation would
qualify as a “grave reason” for needing a continuance. Respondent offers no case law
supporting the notion that simply being out of state on the day of trial is a “grave reason.”
Instead, respondent attempts to contrast the facts of the case at bar from those present in
Marc Realty, 2014 IL App (1st) 133688 ¶¶ 18-20, where the moving party requested a
motion for continuance in order to secure new counsel because it had terminated its counsel
on the day of trial due to an “inherent conflict.” In that case, the appellate court affirmed the
trial court’s denial of the motion for continuance, agreeing with the trial court that granting
the continuance would inconvenience the other parties in the litigation. Marc Realty, 2014 IL
App (1st) 133688, ¶ 27. By contrast to Marc Realty, respondent argues that his motion for
continuance would not inconvenience the court or petitioner because there were no outside
witnesses and both parties lived in Illinois. However, respondent’s argument does nothing to
show that his explanation for his unavailability was a grave reason. Rather, respondent seems
to assert that since there was little potential for inconvenience in granting his continuance, his
explanation suffices as a grave reason. There is no logic in this assertion. Furthermore, the
assertion that the continuance would not inconvenience petitioner is not supported by the
circumstances of the case. Child support was the central issue at the July 9 hearing. Petitioner
and, more importantly, the child would certainly be inconvenienced by having to wait to
resolve this issue, because this money goes toward supporting the child and resolution of this
issue had already been prolonged by respondent’s noncompliance with discovery.
20
No. 1-16-0071
¶ 40 Moreover, respondent ignores that the court in Marc Realty also explained it upheld the
trial court’s denial of the continuance in part because the explanation that the moving party
terminated its counsel due to an “inherent conflict” was only supported by a vague factual
reference and did not amount to a sufficiently grave reason. Marc Realty, 2014 IL App (1st)
133688, ¶ 24. This is similar to the case at bar, where respondent requested a continuance but
did not explain his unavailability or at what point he would be available to continue trial.
This is amplified by the fact that respondent did not submit a written motion or a supporting
affidavit. There is no way that we can conclude that respondent offered a sufficiently grave
reason for needing a continuance after trial had already begun.
¶ 41 In addition, respondent argues that if being out of state was not a sufficiently grave
reason, the ends of justice required his continuance to be granted. Respondent supports this
notion by pointing out that the issue of child support could not be adequately decided without
him, that he was unable to clarify evidence submitted against him, and that he was unable to
hear and respond to petitioner’s testimony. Respondent is undoubtedly correct in asserting
that his testimony was important to the issue of child support. Such was the case in Lindeen
v. Illinois State Police Merit Board, 25 Ill. 2d 349, 350 (1962), where the plaintiff submitted
a motion for continuance because he was unable to locate his essential witness, despite
issuing a subpoena to compel the witness to appear for the trial date. Our supreme court
reversed the denial of this motion, explaining that the plaintiff had exercised due diligence in
trying to procure the witness and that under these circumstances, justice demanded that he be
given more time to procure his essential witness. Lindeen, 25 Ill. 2d at 352. Similarly, in
Vollentine v. Christoff, 24 Ill. App. 3d 92, 93 (1974), the plaintiffs requested a continuance
because the trial date had been moved and their indispensable witness, a doctor, was not
21
No. 1-16-0071
available for the new trial date. The appellate court reversed the denial of the motion,
explaining that the unavailability of the witness was no fault of the plaintiffs and that the
ends of justice required that plaintiffs have time to procure this essential witness. Vollentine,
24 Ill. App. 3d at 96.
¶ 42 From the case law, it appears that the ends of justice demand the granting of a
continuance to procure an essential witness in circumstances where the witness is unavailable
through no fault of the moving party and the moving party had exercised due diligence in
procuring the witness. However, this was not the situation in the case at bar. Respondent was
the essential witness, but he did not put forth any evidence to show that his unavailability
was sudden or that he had exercised due diligence to ensure that he could attend the July 9
hearing date. The record does not show that he attempted to change his schedule or that he
absolutely needed to be out of state during the July 9 hearing date. In fact, in his reply to
petitioner’s response to his motion to reopen proofs, respondent affirmatively stated that
“[h]ad the importance of his presence on [July 9] been adequately explained to him by his
prior counsel, he would have been present in court.” Thus, respondent’s own statement
shows that he could have been present in court had he wished. Furthermore, the record also
indicates that the hearing date was set on May 29, meaning that respondent had plenty of
time to exhibit due diligence in attending the hearing. The absence of any due diligence or
explanation of his unavailability supports the trial court’s discretionary decision to deny
respondent’s motion for a continuance, and we affirm the trial court’s decision on this issue.
¶ 43 II. Motion to Reopen Proofs
¶ 44 Respondent next argues that the trial court erred in denying his motion to reopen proofs,
which he filed after the trial court granted petitioner’s petition to modify child support. “In
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No. 1-16-0071
ruling on a motion to reopen proofs, the trial court considers: whether the moving party has
provided a reasonable excuse for failing to submit the additional evidence during trial,
whether granting the motion would result in surprise or unfair prejudice to the opposing
party, and if the evidence is of the utmost importance to the movant’s case.” (Internal
quotation marks omitted.) In re Estate of Bennoon, 2014 IL App (1st) 122224, ¶ 55.
Additionally, when a case is tried before the court without a jury, “greater liberty should be
allowed in reopening proofs.” Bennoon, 2014 IL App (1st) 122224, ¶ 55. Nevertheless, the
fact that a case is heard without a jury does not mean that a motion to reopen proofs should
automatically be granted. See Bennoon, 2014 IL App (1st) 122224, ¶ 56 (affirming the denial
of a motion to reopen proofs despite the fact that there was no jury and the motion to reopen
proofs was brought before the trial court rendered its decision). An order denying a motion to
reopen proofs is reviewed for an abuse of discretion. Bennoon, 2014 IL App (1st) 122224,
¶ 53. As noted, “[a]n abuse of discretion occurs only when the trial court’s decision is
arbitrary, fanciful, or unreasonable or where no reasonable person would take the view
adopted by the trial court.” Seymour, 2015 IL 118432, ¶ 41.
¶ 45 In the case at bar, we cannot find that the trial court abused its discretion in denying
respondent’s motion to reopen proofs. Respondent claims that he had a reasonable excuse for
failing to present “proof of his income,” 13 namely, the fact that he was not present at the
hearing on July 9. However, respondent’s argument presupposes that his absence from the
hearing was “reasonable” and that it was the trial court that made the error in refusing to
continue the hearing until respondent could be present. As we have thoroughly discussed
above, however, the trial court properly refused to grant respondent’s continuance because
13
As petitioner points out, respondent never specifies what evidence he would provide, other than
his own testimony. Instead, respondent focuses on his argument that petitioner failed to sustain her burden
of proving respondent’s income. We consider that argument in the next section of our analysis.
23
No. 1-16-0071
respondent’s excuse for being absent from the hearing, which he did not even provide to the
trial court at the time he requested the continuance, was not sufficiently grave. Moreover, as
noted, respondent himself admitted that he could have been present at the July 9 hearing had
he chosen to be. Thus, as the Bennoon court noted, respondent’s failure to present his
evidence “was not because of inadvertence but was a calculated risk on [his] part.” Bennoon,
2014 IL App (1st) 122224, ¶ 61. That risk—that respondent could miss the hearing date with
no repercussions—backfired, and we cannot find that respondent’s absence from the July 9
hearing date is a reasonable excuse for his failure to present the evidence concerning his
income that he now wishes to present.
¶ 46 We also do not find persuasive respondent’s contention that there would have been no
surprise or unfair prejudice to petitioner in reopening the case. As in our discussion of
prejudice concerning the motion for a continuance, reopening the proofs would have
prolonged the case and would have delayed petitioner’s receipt of child support, which is
necessary for providing for the child’s needs. See Bennoon, 2014 IL App (1st) 122224, ¶ 65
(finding prejudice where “allowing the reopening of proofs in this case would further delay
the closing and final distribution of an estate which was opened in 2008”).
¶ 47 Respondent also argues that “the evidence that [he] sought to introduce as part of his
motion to reopen proofs was of the utmost importance to [his] case and would likely have
materially altered the trial court’s judgment.” However, respondent does not specify what
evidence he would have introduced, other than his own testimony. Furthermore, respondent
does not explain what his testimony would have been, meaning that we have no way of
knowing whether it would have been “of the utmost importance to [his] case,” especially
since the trial court made numerous findings of fact concerning respondent’s lack of
24
No. 1-16-0071
credibility. See People v. Collier, 329 Ill. App. 3d 744, 753 (2002) (“[I]n order for the trial
court to have found that defendant’s testimony was of such importance to warrant the
reopening of his case, an offer of proof should have been presented before the court ruled on
his request or immediately thereafter. Given the lack of insight as to the character of his
testimony and reasons for failing to present it during his case in chief, we cannot say that the
trial court clearly abused its discretion when denying defendant’s motion to reopen his
case.”); Dunahee v. Chenoa Welding & Fabrication, Inc., 273 Ill. App. 3d 201, 211 (1995)
(using the plaintiff’s offer of proof of witness testimony as to a critical date in finding that
the new evidence was “of the utmost importance to plaintiff’s case” and concluding that the
trial court should have reopened proofs). Whatever evidence respondent seeks to provide also
would have been available at the time of the July 9 hearing, a fact that also distinguishes
respondent’s case from the situations present in In re Marriage of Suarez, 148 Ill. App. 3d
849 (1986), and Wife F. v. Husband F., 358 A.2d 714 (Del. 1976), a case on which Suarez
relied; both of those cases concerned evidence of a posthearing change in value of assets that
necessitated reopening the proofs.
¶ 48 Finally, we find unpersuasive respondent’s various assertions concerning the reasons for
the trial court’s denial of his motion. First, while the trial court did reference a motion to
reconsider in beginning its remarks on the motion to reopen proofs, there is no indication that
it applied the incorrect standard in considering respondent’s motion, as it expressly stated
that it understood the type of motion it was denying. It is also clear that the fact that
respondent did not attend the July 9 hearing weighed heavily in the trial court’s analysis, a
fact that bears directly on a motion to reopen proofs and the reasonableness of respondent’s
excuse for not presenting his evidence at the hearing. Respondent also argues that the trial
25
No. 1-16-0071
court’s negative view of respondent’s credibility did not justify the denial of his motion to
reopen proofs. However, given that the only evidence respondent has suggested he would
provide if the case were reopened would be his own testimony, the trial court’s view of
respondent’s credibility would be highly relevant in determining whether the additional
evidence would be useful. Accordingly, we cannot find that the trial court abused its
discretion in denying respondent’s motion to reopen proofs.
¶ 49 III. Child Support Award
¶ 50 Next, respondent makes two arguments concerning the child support award itself. First,
respondent argues that the trial court erred when it set the amount of child support at $3000
per month. Additionally, respondent argues that the trial court erred in ordering the support
award to be retroactive to September 1, 2013. We consider each argument in turn.
¶ 51 A. Amount of Child Support
¶ 52 Respondent first argues that the trial court erred in setting the amount of child support at
$3000 per month. “A trial court enjoys broad discretion in determining the modification of
child support, and we will not overturn its decision unless there is an abuse of discretion.”
McClure v. Haisha, 2016 IL App (2d) 150291, ¶ 20; In re Marriage of Rogers, 213 Ill. 2d
129, 135 (2004). As noted, “[a]n abuse of discretion occurs when the trial court’s ruling is
arbitrary, fanciful, or unreasonable, or when its ruling rests on an error of law.” McClure,
2016 IL App (2d) 150291, ¶ 20.
¶ 53 In the case at bar, respondent argues that petitioner failed to demonstrate that she was
entitled to an increase in child support to $3000 per month. A child support judgment can
generally be modified only upon a showing of a substantial change in circumstances. In re
Marriage of Sweet, 316 Ill. App. 3d 101, 105 (2000); see 750 ILCS 5/510(a) (West 2014).
26
No. 1-16-0071
“The party seeking the modification must show both a change in the children’s needs and in
the noncustodial parent’s ability to pay.” Sweet, 316 Ill. App. 3d at 105. Respondent claims
that petitioner failed to show either that the child’s needs had increased or that respondent’s
income had increased. We do not find this argument persuasive.
¶ 54 With respect to the child’s needs, respondent argues that petitioner “did not testify to the
child’s needs other than to state that the needs were $3,000 per month” and points to her Rule
13.3.1 disclosure as providing evidence “that the child’s stated needs were significantly less.”
Respondent’s argument concerning the Rule 13.3.1 disclosure is unsupported by the record
on appeal. While respondent is correct that petitioner’s disclosure form lists expenses that
were spent exclusively on the child as $1497 as of the November 30, 2014, date of the
disclosure, respondent’s argument ignores the fact that the disclosure also includes $1980 in
household expenses and $585 in transportation expenses. Child support is intended to
“provide for the reasonable and necessary educational, physical, mental and emotional health
needs of the child.” 750 ILCS 5/505(a) (West 2014). A child is not expected to live without a
roof over his head or with no way to travel from place to place. Thus, even based on the
disclosure alone, the expenses eligible for child support would include more than the $1497
asserted by respondent.
¶ 55 Moreover, as to respondent’s criticism of the content of petitioner’s testimony concerning
the child’s needs, the record does not contain a transcript of the July 9, 2015, hearing at
which petitioner testified, nor does it include a bystander’s report. All that is included is an
agreed statement of facts, which is silent concerning petitioner’s testimony as to the child’s
27
No. 1-16-0071
needs. 14 As the appellant, respondent had the burden to present a sufficiently complete record
of the proceedings at trial to support a claim of error, and any doubts that arise from the
incompleteness of the record will be resolved against him. Foutch v. O’Bryant, 99 Ill. 2d 389,
391-92 (1984). Furthermore, at the October 14, 2015, court date at which the trial court
denied respondent’s motion to reopen proofs, the court noted that it found petitioner’s
testimony from the July 9 hearing—that she needed $3000 per month to cover the child’s
expenses—credible and reasonable. In addition, petitioner testified that respondent was
voluntarily paying $3500 per month in child support until 2011, after which he paid less until
respondent unilaterally stopped making the payments. 15 “A reviewing court will not
substitute its judgment for that of the trial court regarding the credibility of witnesses, the
weight to be given to the evidence, or the inferences to be drawn” from the evidence. Best v.
Best, 223 Ill. 2d 342, 350-51 (2006); In re Marriage of McHenry, 292 Ill. App. 3d 634, 641
(1997). Since the trial court found petitioner’s testimony that the child’s needs were $3000
per month to be credible and reasonable, we will not reweigh that credibility determination
on appeal. Finally, we note that “an increase in children’s needs can be presumed on the basis
that they have grown older and the cost of living has risen.” Sweet, 316 Ill. App. 3d at 105.
Thus, we cannot agree with respondent’s contention that petitioner failed to show that the
child’s needs had increased.
¶ 56 We are similarly unpersuaded by respondent’s argument that petitioner failed to show
that respondent’s income had increased. Respondent argues that the record was devoid of any
competent evidence of his income, so the trial court erred in setting child support at $3000
14
We note that the agreed statement of facts indicates that both parties made arguments
concerning petitioner’s testimony about the child’s needs during closing argument, but there is nothing
indicating what that testimony actually was.
15
Petitioner testified that respondent paid a total of $4095.10 in child support from October 2013
through April 2015.
28
No. 1-16-0071
per month. Section 505(a) of the Marriage Act creates a rebuttable presumption that a
specified percentage of a noncustodial parent’s income represents an appropriate child
support award. In re Marriage of Freesen, 275 Ill. App. 3d 97, 105 (1995). If the trial court
deviates from the statutory guidelines in awarding child support, it must make express
findings as to its reasons for doing so. In re Marriage of Severino, 298 Ill. App. 3d 224, 230
31 (1998). “[C]onsideration of the factors set forth in section 505 of the Act is mandatory,
not directory,” when deciding whether to deviate from the guidelines. Freesen, 275 Ill. App.
3d at 105.
¶ 57 “Under normal circumstances, the trial court is required to make a threshold
determination of the party’s net income before applying section 505.” Severino, 298 Ill. App.
3d at 230. “In section 505(a)(5) of the [Marriage] Act, however, the legislature recognized
that there may arise situations where the amount of the noncustodial parent’s net income
could not be accurately determined.” In re Marriage of Takata, 304 Ill. App. 3d 85, 96
(1999). Section 505(a)(5) of the Marriage Act provides that, “[i]f the net income cannot be
determined because of default or any other reason, the court shall order support in an amount
considered reasonable in the particular case.” 750 ILCS 5/505(a)(5) (West 2014). Thus, in
cases where there is no credible evidence of net income, a court “[is] compelled to make the
award of child support in an amount that [is] reasonable in the case.” Takata, 304 Ill. App. 3d
at 96. Such situations commonly occur in cases in which the party’s testimony concerning his
or her income is considered not credible by the trial court. See, e.g., In re Marriage of
Sanfratello, 393 Ill. App. 3d 641 (2009) (noting that the trial court acted reasonably in
drawing the inference that the respondent earned substantially more than he claimed); Sweet,
316 Ill. App. 3d at 109 (noting that “the court strongly implied that respondent was not being
29
No. 1-16-0071
truthful about his income”); Takata, 304 Ill. App. 3d at 96 (noting that the trial court found
the party’s testimony as to his income to be not credible); Severino, 298 Ill. App. 3d at 229
30 (same).
¶ 58 In the case at bar, we cannot find that the trial court abused its discretion when it found
that it could not determine respondent’s income and consequently used section 505(a)(5) to
award child support in an amount it considered reasonable, which was based on the child’s
needs. First, the trial court expressly stated several times that it did not find respondent’s
testimony credible, a decision that we will not reweigh on appeal. See Best, 223 Ill. 2d at
350-51. Additionally, the trial court drew a negative inference from respondent’s failure to
appear on the second day of the hearing. While respondent argues that this inference was
improper, we find no error with the trial court’s actions. “Where a party fails to produce
evidence in his control, the presumption arises that the evidence would be adverse to that
party.” REO Movers, Inc. v. Industrial Comm’n, 226 Ill. App. 3d 216, 223 (1992).
Respondent argues that such a presumption should not apply here, where he had a reasonable
excuse for not presenting his testimony, namely, his absence from the state. However, as
noted several times herein, the trial court properly found that respondent’s absence was not
reasonable, and we find no error in the trial court’s choosing to apply the presumption in this
case.
¶ 59 Finally, there were records concerning respondent’s involvement with TMT Sportz as
well as several of respondent’s personal bank statements admitted into evidence, which
showed that respondent had not been forthright about his income. Respondent argues that the
bank statements should not have been admitted into evidence because they were hearsay and
there was no foundation laid for their admission. Again, the only record of the hearing at
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No. 1-16-0071
which these documents were admitted into evidence was the agreed statement of facts, which
states: “[respondent’s attorney] objected to [petitioner’s attorney’s] offer of documentary
evidence since there was no person who could verify the documents. Judge Kaplan denied
[respondent’s attorney’s] objection and indicated that the documents could be admitted over
[her] objection.” It is thus unclear the basis under which petitioner’s counsel sought to have
the documents admitted or whether a proper foundation had been laid. Again, to the extent
that the record is not sufficient to support a claim of error, “it will be presumed that the order
entered by the trial court was in conformity with law and had a sufficient factual basis.”
Foutch, 99 Ill. 2d at 391-92. However, even though it is not mentioned by the parties on
appeal, we do note that the bank statements do appear to have been admissible under section
505(a)(6) of the Marriage Act, which provides:
“If (i) the non-custodial parent was properly served with a request for discovery of
financial information relating to the non-custodial parent’s ability to provide child
support, (ii) the non-custodial parent failed to comply with the request, despite having
been ordered to do so by the court, and (iii) the non-custodial parent is not present at
the hearing to determine support despite having received proper notice, then any
relevant financial information concerning the non-custodial parent’s ability to provide
child support that was obtained pursuant to subpoena and proper notice shall be
admitted into evidence without the need to establish any further foundation for its
admission.” 750 ILCS 5/505(a)(6) (West 2014).
In the case at bar, concerning the bank statements from Chase bank, the record reveals:
(1) petitioner served respondent with a request for production of documents on May 15,
2015, which included a request for bank statements for any checking or savings accounts in
31
No. 1-16-0071
respondent’s name; (2) after receiving no documents in response to the request, petitioner
filed a motion to compel discovery compliance with the request to produce on June 24, 2015,
and the court ordered respondent to comply with the request to produce; (3) while the court
“acknowledge[d] [respondent’s] production of Responses to Petitioner’s 2nd Request for
Production of Documents,” petitioner’s counsel stated at the hearing on the motion to reopen
proofs that petitioner did not receive any documents concerning respondent’s Chase bank
accounts; (4) as a result of her own investigation, petitioner issued a subpoena to Chase
Bank, in response to which the bank produced respondent’s bank statements; and
(5) respondent was not present at the July 9 hearing date, at which child support was at issue.
Thus, according to the plain language of section 505(a)(6), the bank statements appear to
have been admissible without any further foundation, and the trial court did not err in
admitting them.
¶ 60 In summary, when determining respondent’s income, the trial court was presented with
(1) respondent’s incredible testimony on the first hearing date, (2) respondent’s complete
absence from the second hearing date, and (3) bank statements that indicated that there was
money flowing through respondent’s bank accounts that had not been disclosed.
Accordingly, we cannot find that the trial court abused its discretion when it determined that
it could not accurately determine respondent’s actual income from the evidence before it and
therefore needed to apply section 505(a)(5) to award what it considered reasonable child
support, which was based on the child’s needs, which amounted to $3000 per month. In
addition, the fact that the trial court found that respondent had more income than he claimed
was a factor that the court considered in making this determination.
32
No. 1-16-0071
¶ 61 B. Retroactivity of Support
¶ 62 Respondent also claims that the trial court erred in ordering the modified support award
to be retroactive to September 1, 2013, in light of the fact that petitioner’s petition to modify
support was filed on October 9, 2014. Respondent argues that this issue should be reviewed
de novo, while petitioner claims it should be reviewed under an abuse of discretion standard.
However, we have no need to resolve this dispute because, even applying the more
deferential standard of review, we would still conclude that the trial court erred in ordering
the support award to be retroactive to September 1, 2013.
¶ 63 Under section 510(a) of the Marriage Act, “the provisions of any judgment respecting
maintenance or support may be modified only as to installments accruing subsequent to due
notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a)
(West 2014). Thus, under the plain language of the statute, the filing of the motion for
modification is the earliest date to which the modification applies. See In re Marriage of
Pettifer, 304 Ill. App. 3d 326, 328 (1999) (“A plain reading of section 510(a) dictates that a
retroactive modification is limited to only those installments that date back to the filing date
of the petition for modification and, thus, insures that the respondent is put on notice prior to
the court ordering him to pay increased support.”); In re Marriage of Henry, 156 Ill. 2d 541,
544 (1993) (“Dissolution of marriage and collateral matters such as child support are entirely
statutory in origin and nature [citation], and, in light of the legislature’s clear pronouncement
*** [in section 510(a)], a trial court has no authority to retroactively modify a child support
order ***.”).
¶ 64 In the case at bar, petitioner’s petition for modification of child support was filed on
October 9, 2014. Accordingly, the trial court only had the discretion to modify child support
33
No. 1-16-0071
as to installments accruing after that date and, consequently, erred in ordering child support
to be retroactive to September 1, 2013. Therefore, we vacate that portion of the custody
judgment ordering the increased amount of child support from September 1, 2013, to October
9, 2014.
¶ 65 In arguing that the trial court had the discretion to order retroactive support, petitioner
cites In re Marriage of Erickson, 136 Ill. App. 3d 907 (1985), and In re Parentage of
Janssen, 292 Ill. App. 3d 219 (1997). However, Erickson is unpersuasive because it involved
the termination and modification of maintenance and child support, respectively, after the
remarriage of the custodial parent. Similarly, Janssen is inapposite because it concerned
ordering retroactive support pursuant to the Parentage Act back to the date of the child’s
birth. While petitioner in the case at bar did bring a parentage action, the support sought in
this case is not an initial support order but is a modified one. Under section 16 of the
Parentage Act, “[a]ny support judgment is subject to modification or termination only in
accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act.” 750
ILCS 45/16 (West 2014). Thus, section 510(a) of the Marriage Act applies, and its plain
language provides the limitation of the support order.
¶ 66 Finally, we find unpersuasive petitioner’s arguments that respondent had notice that she
was seeking retroactive support because in 2013, there were temporary and permanent
support orders referencing retroactive child support. However, the two orders referenced by
petitioner reserved the issue of retroactive child support from January 1, 2011, through
March 31, 2013. These orders lend no support to the claim that respondent was on notice that
petitioner would be seeking retroactive support from September 1, 2013, and, indeed, child
support from January 2011 through March 2013 does not appear to have been at issue during
34
No. 1-16-0071
the hearing. Accordingly, as set forth above, we vacate the portion of the custody judgment
ordering the increased amount of child support from September 1, 2013, to October 9, 2014.
¶ 67 IV. Health Insurance
¶ 68 Finally, respondent claims that the trial court erred in requiring him to provide health
insurance for the child because petitioner already had health insurance for the child at no cost
to her. “It is within the trial court’s sound discretion to order the payment of a health
insurance premium, and the trial court’s ruling will not be disturbed on review absent an
abuse of discretion.” In re Marriage of Raad, 301 Ill. App. 3d 683, 688 (1998). As noted,
“[a]n abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or
unreasonable or where no reasonable person would take the view adopted by the trial court.”
Seymour, 2015 IL 118432, ¶ 41.
¶ 69 In the case at bar, in the custody judgment, the trial court ordered respondent to “acquire
and maintain health insurance for the minor child.” In its comments in open court, the court
also noted that, “[h]e can go get a policy and pay for it or he can reimburse mom if she does
have a policy. *** That is his obligation.” Under section 505.2 of the Marriage Act:
“(1) Whenever the court establishes, modifies or enforces an order for child
support or for child support and maintenance the court shall include in the order a
provision for the health care coverage of the child which shall, upon request of the
obligee or Public Office, require that any child covered by the order be named as a
beneficiary of any health insurance plan that is available to the obligor through an
employer or labor union or trade union. If the court finds that such a plan is not
available to the obligor, or that the plan is not accessible to the obligee, the court may,
upon request of the obligee or Public Office, order the obligor to name the child
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No. 1-16-0071
covered by the order as a beneficiary of any health insurance plan that is available to
the obligor on a group basis, or as a beneficiary of an independent health insurance
plan to be obtained by the obligor, after considering the following factors:
(A) the medical needs of the child;
(B) the availability of a plan to meet those needs; and
(C) the cost of such a plan to the obligor.” 750 ILCS 5/505.2(b)(1) (West
2014).
¶ 70 Respondent’s argument appears to be that the trial court abused its discretion in ordering
him to obtain health insurance because petitioner already had an insurance plan and
respondent was unemployed. As to respondent’s claims about his income, those have already
been exhaustively discussed above, and we have no need to further discuss them here.
Additionally, “[t]he duty to provide health insurance is an integral part of a parent’s current
and future support obligations.” In re Marriage of Seitzinger, 333 Ill. App. 3d 103, 113
(2002). Respondent cites no authority that would relieve one parent from a health insurance
obligation simply because the other parent already has a policy. Indeed, section 505.2(d)
provides that “[t]he dollar amount of the premiums for court-ordered health insurance ***
shall be considered an additional child support obligation owed by the obligor.” 750 ILCS
5/505.2(d) (West 2014). This makes clear that health insurance is respondent’s child support
obligation, regardless of petitioner’s situation. See Takata, 304 Ill. App. 3d at 95 (finding the
respondent liable for unpaid health insurance premiums despite the fact that the petitioner
insured her children through public aid at no cost to her). We cannot find that the trial court
abused its discretion in ordering respondent to obtain health insurance for the child.
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No. 1-16-0071
¶ 71 CONCLUSION
¶ 72 For the reasons set forth above, we find (1) the trial court did not err in denying
respondent’s motion for a continuance, (2) the trial court did not err in denying respondent’s
motion to reopen proofs, (3) the trial court did not err in setting child support at $3000 per
month, and (4) the trial court did not err in ordering respondent to obtain health insurance for
the child. However, we vacate that portion of the custody judgment ordering the increased
amount of child support from September 1, 2013, to October 9, 2014, as the trial court could
only order increased support retroactive to the date of the filing of the petition for
modification.
¶ 73 Affirmed in part; vacated in part.
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