Kolessar v. Signore

2012 IL App (1st) 102448

964 N.E.2d 1166

In re MARRIAGE OF Cathy KOLESSAR, f/k/a Cathy Signore, Petitioner–Appellant,andThomas A. Signore, Respondent–Appellee.

No. 1–10–2448.

Appellate Court of Illinois, First District, Second Division.

Jan. 17, 2012.

Law Office of Elizabeth Lidd Factor, La Grange (Elizabeth Lidd Factor, of counsel), for Appellant.

Edward M. Duthaler, Park Ridge, for Appellee.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

¶ 1 Petitioner-appellant Cathy Kolessar (Kolessar), f/k/a Cathy Signore, appeals the order of the circuit court denying her two motions for reconsideration of its judgments on respondent-appellee Thomas A. Signore's (Signore) petitions for modification of unallocated support payments. On appeal, Kolessar contends (1) the trial court erred in denying her request for statutory interest on the past-due support; (2) the trial court erred in finding that Signore's first unilateral modification of his support payments was not willful or contumacious; and (3) the trial court erred in failing to find that Signore's second unilateral modification was without cause or justification. We reverse the court's determination as to statutory interest, but affirm the court's findings regarding Signore's unilateral modifications.

¶ 2 JURISDICTION

¶ 3 The trial court denied Kolessar's motions to reconsider the April 2, 2010 orders on July 15, 2010. Kolessar filed her notice of appeal on August 13, 2010. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 4 BACKGROUND

¶ 5 Kolessar and Signore were married in 1985 and had three children. One child died at birth. On February 26, 1998, the trial court entered a judgment of dissolution of marriage, which incorporated the parties' marital settlement agreement. At the time of the dissolution, their surviving children were seven and three years old. Signore was ordered to pay unallocated support of $2,000 per month based on his gross annual income of $70,000 beginning March 1, 1998 and terminating on June 2, 2011.

¶ 6 On September 25, 2008, Signore filed a petition for modification of his support obligation (first petition) alleging that (1) only one child living with Kolessar remained a minor; (2) Kolessar had remarried and found employment; (3) Signore was now employed by the University of Chicago at a “substantially” lower salary; and (4) he now had two other dependents to provide for since he remarried and has a son. From December 2008 to March 2009, while the first petition was pending in the court, Signore unilaterally modified his support obligation from $2,000 to $1,203.84 per month.

¶ 7 On April 6, 2009, the parties entered into an agreed order modifying the support provision of the judgment effective April 1, 2009. The order terminated Signore's obligation to pay unallocated family support and ordered him to pay $1,300 per month for support of the parties' minor child “until emancipation of the [minor child], entry of a permanent support order, or a substantial change in circumstance, whichever is the first to occur.” On the same day, the trial court entered a uniform order for support modification finding that the amount represented 20% of Signore's “net income excluding bonuses.” Neither the agreed order nor the uniform order addressed the issues of arrearage and interest to be paid on the arrearage.

¶ 8 In a letter dated June 15, 2009, Signore resigned from his job at the University of Chicago and Andrea M. Keeley, the associate director of human resources at the university, accepted his resignation. On August 6, 2009, Signore filed a petition for modification of the April 6, 2009 support order (second petition) requesting a reduction of his obligation from $1,300 to $421.14 per month. In his petition, Signore alleged that he was now receiving unemployment benefits and $421.14 represented 20% of his net benefits. He further alleged that his net monthly income had been involuntarily reduced to $2,105.74 and he had no other earnings. In August 2009, Signore unilaterally modified his support obligation from $1,300 to $421.14 per month and he continued to pay the reduced amount through February 2010.

¶ 9 On August 12, 2009, Kolessar filed a petition for rule to show cause and other relief, alleging that Signore violated the terms of the April 6, 2009 agreed order and uniform order by (1) failing to provide major medical coverage or pay his share of unreimbursed medical expenses for both children; and (2) failing to pay the arrearages resulting from his unilateral reduction of support payments from December 2008 to March 2009, as well as the accrued interest. On October 14, 2009, Kolessar filed an answer and affirmative defense to Signore's second petition alleging he had not made a showing of good faith that he resigned from his job for reasons other than to avoid support payments and that he did not experience a substantial change in circumstances. She also alleged that Signore had sufficient funds to continue paying $1,300 in monthly support despite the fact he was no longer employed. At the end of the discovery period, Signore's attorney issued a subpoena for trial to Andrea Keeley. Counsel for Kolessar filed a motion to quash the subpoena on March 25, 2010 and filed an emergency motion to quash the subpoena on March 30, 2010.

¶ 10 The trial court held a hearing on Kolessar's petition for rule to show cause, Signore's second petition and Kolessar's affirmative defenses, on April 2, 2010. The court first addressed Kolessar's motion regarding the testimony of Keeley. Counsel for Kolessar argued against allowing Keeley to testify because she was not disclosed as a witness in a timely manner and Kolessar would be prejudiced by her testimony because her case was prepared based only on the information and documents disclosed. The trial court granted the motion to bar Keeley's testimony and exclude any documents related to her testimony.

¶ 11 The court also addressed the issue of arrears resulting from Signore's first unilateral modification from December 2008 to March 2009 as well as the accumulated interest. The parties acknowledged that both April 6, 2009 orders were silent on these issues. The court found that Signore's actions in unilaterally reducing his payments were not willful or contumacious, “but he does owe the money because the agreed order is effective April [2009] and he unilaterally reduced it in December [2008].” The court did not award interest because both orders were “silent on the issue.”

¶ 12 The parties next addressed whether Signore resigned from his position at the University of Chicago voluntarily or was terminated. In her argument, Kolessar's counsel referenced documents produced by the University of Chicago but Signore's counsel objected to admitting the evidence without a proper foundation. The court noted that Signore received unemployment benefits, which would not be possible if he willfully terminated his employment. Kolessar's counsel disagreed with the court's statement. The court then proceeded to continue the hearing “in back” without the presence of a court reporter. Kolessar's brief states that “[w]hile off the record, the Court made it clear that [Kolessar's counsel] would not be allowed to call Keeley to the stand to lay an evidentiary foundation for the documents.”

¶ 13 The trial court issued two orders on April 2, 2010. The first order found that Signore's first unilateral modification was not willful or contumacious, granted Kolessar's motion to bar Keeley from testifying or introducing documents not previously produced, and entered judgment against Signore in the amount of $3,184.64 for past-due support stemming from his first unilateral modification. The second order was an agreed order pertaining to Signore's second petition for modification. The court ordered Signore to pay $1,300 per month in child support plus another $376.71 per month in past-due support resulting from his second unilateral modification. The order stipulated that Signore would pay child support until June 2, 2011. Although Signore was ordered to pay both arrearages, the court did not impose statutory interest on either amount.

¶ 14 That same day, Kolessar filed a motion to reconsider the second order. She contended that Signore's second unilateral modification was without cause or justification and she was entitled to statutory interest on the arrearage. Kolessar also filed a motion to reconsider the trial court's finding that Signore's first unilateral modification was not willful or contumacious and its denial of her request for statutory interest on the first arrearage. The court denied the motions, finding that Signore's failure to pay was not willful and contumacious and that interest accrued on past-due support was discretionary. Kolessar filed this timely appeal.

¶ 15 ANALYSIS

¶ 16 Kolessar appeals the trial court's denial of her motions to reconsider. In the first motion, Kolessar alleged that the trial court erred in finding that the imposition of statutory interest on the arrearages was discretionary, relying on Finley v. Finley, 81 Ill.2d 317, 43 Ill.Dec. 12, 410 N.E.2d 12 (1980). In the second motion, Kolessar challenged the trial court's finding in its April 2, 2010 order that Signore's failure to pay support was not willful or contumacious. These arguments are not based on new matters or new legal theories but, rather, dispute the trial court's application of existing law. Therefore, our standard of review is de novo. Muhammad v. Muhammad–Rahmah, 363 Ill.App.3d 407, 415, 300 Ill.Dec. 377, 844 N.E.2d 49 (2006).

¶ 17 First we address Kolessar's contention that the trial court erred in applying Finley. In Finley, the supreme court likened a dissolution proceeding to a chancery proceeding and thus held that...