Lavallais v. Irvin (In re I.I.)

2016 IL App (1st) 160071

69 N.E.3d 402

IN RE PARENTAGE OF I.I., a Minor

(Nanina Lavallais n/k/a Carraway, Petitioner-Appellee,

v.Michael Irvin, Respondent-Appellant).

No. 1-16-0071

Appellate Court of Illinois, First District, Fifth Division.

December 23, 2016

Lester L. Barclay, Emily C. Goldman, and Rafael Taylor, of The Barclay Law Group, P.C., of Chicago, for appellant.

Amy L. Brogioli and Matthew C. Arnoux, of Birnbaum, Haddon, Gelfman & Arnoux, LLC, of Chicago, for appellee.

OPINION

PRESIDING JUSTICE GORDON delivered the judgment of the court, with 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 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 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. 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's⁵ 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."

¶ 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 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...