Key v. Key

2018 IL App (5th) 160104-U

In re MARRIAGE OF LORI A. KEY, Petitioner-Appellee, and DANIEL M. KEY, Respondent-Appellant.

NO. 5-16-0104

APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

May 10, 2018

NOTICE

Decision filed 05/10/18. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of St. Clair County.

No. 13-F-251

Honorable Julie K. Katz, Judge, presiding.

JUSTICE CHAPMAN delivered the judgment of the court.

Justices Goldenhersh and Moore concurred in the judgment.

ORDER

¶ 1 Held: Where Lori Key did not abandon her 2006 petition to modify, we affirm the court's order awarding retroactive child support to 2006. Where the 2010 agreed-to order allowing Lori to move out of Illinois with the parties' child did not extinguish the 2006 petition to modify, the trial court's order to that effect was correct. Where the trial court did not shift the burden of proof to Daniel to establish a substantial change in circumstances, we affirm the court's orders. Where the trial court did not abuse its discretion in its calculation and award of retroactive child support, we affirm. Where the trial court did not abuse its discretion in awarding attorney fees, we affirm.

¶ 2 Daniel Key appeals from four separate trial court orders entered between December 31, 2015, and March 1, 2016. The orders all relate to whether retroactive child support was appropriate; whether the calculations for retroactive child support were correct; and whether an attorney fees award was appropriate. We affirm the orders of the trial court.

¶ 3 FACTS

¶ 4 Franklin County Proceedings

¶ 5 Lori and Daniel were divorced on December 3, 1998, in Franklin County. Pursuant to the marital settlement agreement filed that same date, Lori was awarded custody of their daughter, who was then 18 months old. The court directed Daniel to pay $700 in monthly child support based upon his net income. At that time, Daniel was employed by the Illinois State Police, had family health insurance, and was a United States Army Reserve member.

¶ 6 In late July 2000, Daniel filed a petition to modify on the bases that he was no longer an Army Reserve member, that as of mid-July 2000 he was indefinitely suspended from employment with the Illinois State Police, and that he had no income. Lori utilized the services of the Illinois Department of Public Aid (IDPA) to assist her in obtaining the court-ordered support. In March 2001, IDPA sent the first withholding order to Daniel's then-employer, Edward D. Jones Company. By May 30, 2001, Daniel was delinquent in support by over $9000, and by October 30, 2001, the delinquency totaled $16,465. Between May 2001 and November 2002, the IDPA sent several income withholding orders to the following employers: the City of Sesser; the Illinois State Police; and Metlife. On January 9, 2002, the court entered an agreed-to order. Lori and Daniel agreed to extinguish all claims filed against each other, including Lori's claim for supportarrearage through December 31, 2001. Daniel also agreed to make monthly support payments of 20% of his net income.

¶ 7 In February 2003, IDPA filed a petition asking the court to hold Daniel in indirect civil contempt for not complying with the January 9, 2002, agreed-to child support order. IDPA intercepted an $87 unemployment insurance benefit in March 2002—the only child support funds received to that date. IDPA also filed a petition to modify support on Lori's behalf and on July 8, 2003, the trial court entered a default child support order. The court noted that Daniel's net income could not be established. On that basis, the court ordered Daniel to pay $400 per month based upon the reasonable needs of the child. Furthermore, the court ordered Daniel to pay Lori $80 per month for the child's health insurance.

¶ 8 On June 14, 2004, Daniel filed a petition to abate or modify support on the bases that he was attending law school, that he would not graduate until May 2005, and that his only income was in the form of student loans.

¶ 9 In 2005, IDPA began filing withholding orders in Iowa, where Daniel was then working. In February 2005, IDPA filed a withholding order and a medical support notice directed to a law firm in Cedar Rapids, Iowa. In March 2005, IDPA filed a withholding order and a medical support notice directed to Key Investigations International in Prairie du Chien, Wisconsin. On July 7, 2005, IDPA filed a petition for indirect civil contempt alleging that as of that date, Daniel had a support arrearage of $9600 and owed Lori $1920 to reimburse her for health insurance costs. That same date, the court entered an order to show cause directed to Daniel ordering him to appear in court on August 11, 2005. On that date, the court allowed Daniel an extension of time to file a new petition tomodify or abate and found him in indirect civil contempt. On August 23, 2005, the parties entered into an agreed-to order after Daniel paid the full amount of monies owed.

¶ 10 Soon after Daniel paid all arrearages owed through August 2005, in September 2005, he filed a second petition to modify the July 2003 child support order. He alleged a substantial change in circumstances had occurred since the 2003 order in that he had incurred student loan debt of $130,000.

¶ 11 In August 2006, Daniel asked the court to dismiss his petition to modify support, and the court entered that order on August 10, 2006. Lori then filed a petition to modify child support on August 23, 2006, alleging that Daniel's income had substantially increased and that the costs of raising their child had increased. At about the same time, Daniel filed a motion to transfer the case to St. Clair County because neither party lived in Franklin County.

¶ 12 In March 2007, Lori filed a citation to discover assets that was set for hearing in Franklin County. The record contains no reference that the court held this hearing.

¶ 13 In late 2008, Daniel opened his own law practice in Wisconsin and eventually became a municipal court judge.

¶ 14 In 2008 and 2009, the only child support documents in the record are income-withholding and health care coverage documents filed by the Illinois Department of Healthcare and Family Services—the Division of Child Support Enforcement (IDHFS).

¶ 15 On December 28, 2010, Lori and Daniel filed a stipulation and agreed-to order allowing Lori to move with their child to Atlanta, Georgia, for employment reasons. Lori and their child returned to St. Clair County in May 2011.

¶ 16 In February 2013, the case was transferred from Franklin County to St. Clair County after the trial court entered an order granting Daniel's motion to transfer.

¶ 17 St. Clair County Proceedings

¶ 18 On April 3, 2013, Lori filed a petition to hold Daniel in contempt of court for failing to pay his one-half share of their child's health-related expenses as mandated by the 1998 marital settlement agreement. Daniel countered with a motion for summary judgment alleging that he never knew about these health-related expenses, and therefore, he could not be expected to know the amounts he allegedly owed.

¶ 19 On May 24, 2013, Daniel filed his financial statement in this case. He alleged that his gross monthly total income was $1850 and his net monthly income was $1317.56, after payment of child support and taxes. Daniel listed monthly expenses totaling $1609. He listed numerous assets—a house, stocks, numerous firearms, a motorcycle, a boat, and three vehicles. He owed $5000 on one of the vehicles. He also listed law school loans totaling $152,450. Daniel attached income tax returns for 2011 and 2012, both reflecting negative income for those years.

¶ 20 1. Discovery Issues

¶ 21 Issues with discovery arose soon after the St. Clair County transfer. By July 2013, the court ordered Daniel to produce all documents used in preparing his 2012 income tax return as well as all cancelled checks included in the 2013 business bank account statements. Daniel objected to Lori's requests for financial documents dating back to her August 2006 petition to modify on the basis that she had not diligently pursued that 2006 petition. The trial court denied Daniel's objections in January 2014 and ordered him toproduce the documents within 60 days. Daniel did not produce the documents. In June 2014, the court overruled additional objections Daniel made in response to the discovery requests and again ordered him to produce the documents within 60 days. Daniel did not produce the documents. In September 2014, Lori filed a motion for sanctions, and on October 30, 2014, the trial court ordered Daniel to pay $1000 in attorney fees within 30 days. In December 2014, Lori filed a second motion for sanctions, alleging that the information received in late October from Daniel was incomplete in that various statements for the years 2006 to 2008 were missing. Additionally, Lori filed a second petition for contempt because Daniel had not yet paid the $1000 for attorney fees. The court ordered Daniel to produce the missing documents and to appear in court on December 31, 2014, to testify on the issue of the contempt petition.

¶ 22 On December 31, Daniel appeared and testified. In part, Daniel testified about the documents produced and his various assets, including bank accounts. During his testimony, he revealed that there was a previously undisclosed account—an Interest on Lawyer Trust Account (IOLTA). The court ordered him to produce the IOLTA account documents within 30 days and offered an in camera review if necessary. The court found Daniel in criminal contempt and sentenced him to seven days in jail plus a $1000 fine stayed pending timely compliance with all previous discovery requests and orders. Finally, the court set temporary child support for $1000 to...