In re Marriage of Beaton , 2022 IL App (2d) 200556-U ( 2022 )

2022 IL App (2d) 200556-UNos. 2-20-0556 & 2-21-0011 cons.
Order filed November 4, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
RENEE BEATON, ) of Kane County.
)
Petitioner-Appellee, )
)
and ) No. 18-D-92
)
JAY BEATON, ) Honorable
) William J. Parkhurst
Respondent-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court.
Presiding Justice Brennan and Justice Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in finding respondent in indirect civil
contempt for willfully failing to make maintenance and child support payments,
and we are without jurisdiction to review the trial court’s judgment of dissolution.
¶2 Respondent, Jay Beaton, appeals the judgment of the circuit court of Kane County
dissolving his marriage with petitioner, Renee Beaton. Specifically, respondent appeals the circuit
court of Kane County’s classification of certain monetary gifts as income for purposes of
calculating maintenance and child support. Additionally, respondent appeals the trial court’s order
finding that he was in indirect civil contempt for failure to make child support payments. We
2022 IL App (2d) 200556-Udismiss the portions of the consolidated appeals dealing with the court’s judgment of dissolution
and affirm the trial court’s finding of contempt.
¶3 I. BACKGROUND
¶4 On January 23, 2018, petitioner filed her petition for dissolution of marriage. According to
the petition, the parties were married on October 6, 2001, in Du Page County. The parties produced
three children during their marriage: (1) S.B., who was born in September 2002; (2) N.B., who
was born in May 2004; and (3) J.B., who was born in February 2008. During their marriage, the
parties lived in a large home in Wayne, where their children all had their own rooms in addition to
five bathrooms, a master suite, and a spare office. On November 27, 2018, the trial court entered
its allocation judgment, specifying, among other things, that petitioner “shall *** be designated as
the parent with the majority of parenting time” and “shall also be designated as having legal
custody of the minor children.”
¶5 On January 22, 2020, the case progressed to trial for what seems to be a determination of
maintenance and child support. Evidence adduced at trial established that, until 2007, respondent
earned approximately $100,000 a year working for Canon. In 2008, respondent voluntarily left his
position at Canon after a “management shakeup,” because he wished to pursue “the opportunity to
be a business owner.” This venture proved fruitless, and, in 2016, respondent entered the mortgage
business, becoming a loan officer. During most of the parties’ marriage, petitioner worked as a
freelance make-up artist, later completing training to apply permanent makeup to medical patients.
Respondent reported that, in the four years prior to trial, he had never made over $40,000 a year
from his professional salary, but the parties’ 2016 joint tax return represented that the parties had
earned $63,376 during that time, with petitioner generating only $4375 of the parties’ joint income
that year. Nonetheless, respondent testified that his income for 2017, 2018, and 2019 had
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2022 IL App (2d) 200556-Udecreased. Petitioner’s professional income was unsteady—the parties’ tax returns indicated that
she had earned $4375 in 2016, $21,657 in 2017, and approximately $4000 in 2018. According to
petitioner’s 2019 W-2 statement and other financial documents, she generated approximately
$27,000 in revenue during 2019 from her makeup business.
¶6 J.B. was born shortly after respondent left Canon. Eight weeks later, J.B. was diagnosed
with cancer. As a result of respondent’s underemployment and J.B.’s “pretty steep” medical
expenses, respondent began withdrawing funds from his 401(k) account—which contained
$500,000—to keep the family afloat. In 2010, respondent also liquidated his children’s education
funds—which contained approximately $60,000—to help cover living expenses. Around this time,
respondent also filed for bankruptcy, which resulted in a number of J.B.’s medical bills being
discharged. In 2011, 1 respondent secured what he characterized as an $85,000 “loan” from his
brother, which effectively kept the parties’ home out of foreclosure. Respondent never repaid his
brother, there was no promissory note evidencing the “loan,” and respondent’s brother did not
charge him interest on the $85,000.
¶7 In March 2012, Respondent exhausted his 401(k) account. He faced a tax penalty for
prematurely withdrawing the money from his 401(k) account, which totaled “around [$]16,000.”
The parties’ tax refunds were withheld to be applied to the overdue balance.
¶8 After having depleted his 401(k) account, respondent’s mother began wiring money to him,
which helped keep the family afloat. The average amount of each transfer is ambiguous—some
testimony suggested that the payments approximated $3000 to $3500, while petitioner argued at
1
The timing of the $85,000 loan is vague. At some times, respondent testified that the
“loan” was made in 2014. At other times, he suggests that it was made in 2011.
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2022 IL App (2d) 200556-Utrial—without contest—that the wire transfers averaged $5000 per month. Petitioner was aware of
the wire transfers, which were deposited into the parties’ joint account. These transfers were both
voluntary and made pursuant to respondent’s requests. There was only one occasion on which
respondent’s mother did not immediately transfer a requested payment to respondent, due to a
technical issue. Respondent had nonetheless received the wire transfer shortly thereafter.
¶9 In 2016, respondent completed a loan modification for the family’s Wayne home.
Following the loan modification, the home’s remaining mortgage balance surpassed the value of
the property, with each mortgage payment exceeding $2600 a month. Respondent’s salary was
insufficient to cover this amount. In June 2018, months after initiating the instant dissolution
proceedings, petitioner moved out of the Wayne residence. Pursuant to a prenuptial agreement, the
Wayne residence remained solely as respondent’s property. While respondent consequently
remained in the Wayne home, petitioner moved into a “two-bedroom, two-bathroom condo” in
South Elgin with the parties’ children.
¶ 10 A few months before petitioner moved out, in April or May 2018, respondent received
$370,000 resulting from the sale of a family farm that was located in North Dakota. Respondent’s
late father and mother had each owned 50 percent of the North Dakota property prior to its sale,
and, after respondent’s father passed away and the farm was sold, his mother “inherited his 50
percent [of the sale proceeds], which went into a trust.” From there, the money was distributed to
other family members included in the trust, with respondent receiving $370,000 of the total sale
proceeds. Respondent’s mother’s share of the proceeds totaled more than $1 million dollars.
Respondent opened a private Chase account under his own name and immediately deposited his
sale proceeds therein. Petitioner was initially unaware that respondent opened the private account.
Respondent would transfer money from his private account to the parties’ joint account for the
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2022 IL App (2d) 200556-Uhousehold “as needed.” These transfers “would show up on [the parties’ joint] Chase account as
transfers from savings.” Respondent testified that, on average, he would deposit “[t]hree to four
thousand per transfer,” and he would typically make one or two such transfers each month.
However, based on a “gentleman’s agreement” between the parties, petitioner did not access the
parties’ joint account after these deposits were made, although respondent did not necessarily
prohibit her from doing so.
¶ 11 Respondent’s bank statements spanning from April 20, 2018, to October 31, 2018, showed
that he spent roughly $140,000 in the six months following his receipt of the $370,000 check.
Instead of satisfying any of his outstanding debts with the farm proceeds, respondent testified that,
in the fall preceding trial, he used over $50,000 of the $370,000 to build “a new patio with fire
pits” and a built-in TV for the Wayne house, as its preexisting patio “was in disrepair.” Respondent
also used portions of the $370,000 to put a $10,000 down payment on a BMW automobile, because
his prior car “needed $3800 worth of front[-]end repair.” Additionally, he used the farm proceeds
to pay for “three cataract surgeries” totaling approximately $24,000, dental work totaling
approximately $20,000, mortgage payments for the nonmarital residence, further renovations in
the nonmarital residence, and the parties’ attorneys’ fees. Based on all these costs, petitioner
surmised that roughly $193,000 should have remained from the $370,000 in farm proceeds.
Respondent could not account for this missing money. At the time of trial, respondent reportedly
only had $3500 of proceeds remaining from the farm proceeds. Petitioner, who had since become
aware of the $370,000 payment, was surprised that respondent did not use any of the farm proceeds
to fund their children’s educations. Respondent had recently told his mother that he had depleted
the $370,000.
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2022 IL App (2d) 200556-U¶ 12 Around the same time respondent received the farm proceeds, his mother stopped sending
her monthly wire transfers; respondent explained that she instead had to pay “$11,800 a month to
live in a nursing home along with [his] handicapped sister.” While respondent had initially testified
that his mother’s payments had ended a year and a half after he had depleted his 401(k) account,
he eventually agreed that “the last wire transfer from [his] *** mom’s account” took place on April
9, 2018.
¶ 13 At the time of trial, petitioner was not receiving “any child support or maintenance” from
respondent. Instead, since moving out of the nonmarital residence, she had received “three
different lump sum payments” from respondent totaling $42,000. She used portions of this money
for attorneys’ fees and to sustain herself and the children. She and the children “live[d] very
frugally” and also obtained some “support from Link for food.”
¶ 14 On April 3, 2020, the trial court issued its letter opinion, awarding petitioner maintenance
and child support in the amounts of $1244 a month and $1270 a month, respectively. In reaching
these amounts, the court considered the applicable statutory guidelines in calculating support and
described the “convincing and largely uncontested evidence” of the “significant financial
assistance” that respondent received from his family. The court discussed the wire transfers
respondent had been receiving from his mother, which it found were made with “specificity and
regularity” before respondent received the $370,000 in farm proceeds. The court also characterized
the $85,000 that respondent had received from his brother as a “gift,” as respondent’s brother had
never attempted to collect payment on the $85,000. Regarding respondent’s farm proceeds, the
court further noted that “[t]he disappearance of the $370,000 occurred over a time span of
approximately 20 months from May 2018 to the time of trial on [January 22, 2020],” and “there
[was] no accounting for the approximately $10,000 per month” defendant had spent during this
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2022 IL App (2d) 200556-Utime. The court also described the monthly wire transfers respondent had been receiving from his
mother, concluding that they should be classified as income for purposes of determining
maintenance and child support:
“The question in this case is not if consistent family gifts to [respondent] should be
included in his income for purposes of support analysis[,] but rather how much should the
court include given the April 2018 inheritance of $370,000[,] most of which has not been
accounted for. One way to analysis [sic] this is to take the number of months from the
inheritance to the date of trial (approximately 20 months) and use that number to divide
the amount for which [respondent] has failed to account (approximately $200,000).
Clearly, the income to [respondent] since the time of the inheritance has eclipsed the
previous consistent gifts of $5,000 per month. Under these circumstances, the court finds
that including gifts of $5,000 per month to [respondent’s] income is a conservative
amount.”
While the court found it fair to include $5000 a month—representing the average monthly amount
of the wire transfers—as income for purposes of determining respondent’s support obligations, it
only imputed an additional $3500 a month onto respondent’s income.
¶ 15 On May 28, 2020, the trial court entered its judgment for dissolution of marriage,
incorporating the holdings from its earlier, April 3, 2020, letter opinion therein. Additionally, the
judgment specified that respondent was “solely responsible for paying the balance due to the
[IRS]” that resulted from respondent’s premature depletion of his 401(k) account.
¶ 16 On June 22, 2020, petitioner filed her first petition for rule to show cause, arguing that,
since the court issued its judgment, respondent had not made any child support or maintenance
payments. On June 29, 2020, respondent filed his motion to reconsider, arguing that the court erred
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2022 IL App (2d) 200556-Uwhen it calculated his income to include his mother’s prior financial gifts, which had purportedly
ceased in May 2018.
¶ 17 On August 25, 2020, the trial court held its hearing on respondent’s motion to reconsider.
After hearing the parties’ arguments, the court found that it “made the right decision” in calculating
respondent’s income.
¶ 18 The topic of the hearing then shifted to petitioner’s motion for a rule to show cause.
Respondent testified, admitting that, in “any month since the [c]ourt entered its judgment,” he had
not paid the ordered amounts of child support or maintenance to petitioner, despite being aware of
his support and maintenance obligations under the court’s May 28, 2020, order. He was unaware
of the total amount he had paid to petitioner since January 2020 but testified that he had given her
proceeds from every paycheck that he had been earning. Evidence adduced at the hearing—in the
form of certain checks respondent had made out to petitioner—later established that he had only
paid her $1500 over the course of the year in a series of cashier’s checks.
¶ 19 Petitioner asked respondent whether he had paid $4500 for his son, N.B., to purchase a car.
Respondent testified that, in October 2018, he had given the money directly to N.B. At this time,
N.B. was only 15 years old. When asked where respondent had gotten the $4500 from, he
responded, “From the inheritance,” later clarifying that he had taken the money out of his bank
account prior to trial. Petitioner then asked, “Well, why, when you were asked at trial to account
for the $370,000, why didn’t you disclose that you had given [N.B.] $4,500 in cash during the trial
in January?” Respondent responded, “Because once I gave it to [N.B.], it was no longer my
money.”
¶ 20 Respondent further testified that his mortgage was “five months in deferment,” that he was
behind with his utility bills, and that he had earned approximately $13,444 year to date. Respondent
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2022 IL App (2d) 200556-Utestified that, at the time of the hearing, he was unable to “make [his] monthly expenses.”
Respondent testified that he was still paying off his new vehicle as well. Respondent reported that
he had no other current sources of income outside of his current employment. When asked whether
he was “seeking any other source of income other than [his] current employer,” respondent
responded, “None.” His debt to the IRS remained outstanding, and the IRS had applied petitioner’s
2019 tax refund—which totaled $9621—to the debt. Respondent had not reimbursed petitioner for
this amount, despite the trial court having previously ordered that he was solely responsible for the
outstanding IRS debt. He testified that he had not been working many hours during the COVID-
19 pandemic, but that he was now working “more like 60” hours a week. Respondent had not
asked his mother for any money during the 2020 calendar year.
¶ 21 Petitioner testified next, confirming that respondent had only paid her a total of $1500 in
support and maintenance thus far in the year and that the IRS had intercepted her $9621 tax
refund—which she had anticipated using to take care of the children. Petitioner was asked whether
N.B. ever informed her that, in the months before purchasing the automobile, respondent had given
him $4500 to purchase a car. Petitioner denied as much. She further pointed out that, once N.B.
had found a suitable car for $9000, she and respondent had agreed to each pay for half of it.
Respondent introduced an electronic message between the parties into evidence, in which
petitioner proposed to respondent that, if he would pay $5000 for N.B.’s car, petitioner would pay
for the remaining balance. The message was dated June 10, 2020. Petitioner was unsure of how
respondent would have previously known that N.B. would need $4500 before N.B. had even
chosen an automobile to purchase.
¶ 22 Following petitioner’s testimony, the parties presented arguments as to the motion for rule
to show cause. Petitioner contended that the court should find respondent in contempt, noting that
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2022 IL App (2d) 200556-Urespondent’s testimony was incredible. Specifically, petitioner pointed out that, while respondent
had essentially testified that he could not afford to comply with the court’s order setting support,
he clearly had cash on hand, as evidenced by the $4500 payment that he had made to N.B. in June
2020. To this point, petitioner disputed respondent’s earlier testimony that the $4500 payment had
been made years prior, as further evidenced by the June 10, 2020, message between the parties.
Petitioner also contended that, by paying petitioner solely in cashier’s checks, respondent was
attempting to conceal the source of his payments, presumably to hide the fact that he indeed had
unreported cash available.
¶ 23 In response, respondent again contended that he had given his son the money for the vehicle
years prior, when he had made a similar gift to his older daughter. Respondent also reiterated that,
since 2018, he had not received any additional funds from his mother, that he had no funds
remaining from the farm proceeds, and that he was behind on all of his bills. Therefore, according
to respondent, there was no basis to believe that he was concealing any income from petitioner,
and, because he was unable to meet any of his expenses, any failure to comply with the court’s
judgment of dissolution was not willful.
¶ 24 In issuing its ruling, the court first expressed surprise that respondent had made a “choice”
not to reach out to any family members for financial assistance, despite its earlier “finding that
[respondent] was able to get money from his mother and that that should be included in his
income.” The court held respondent in indirect civil contempt of court “for his willful failure to
pay court ordered child support and maintenance,” and further ordered that he could purge his
contempt finding by becoming current in the support payments. The matter was continued for
“status on payment of [the] purge,” as well as “[sanctions] for contempt if necessary.”
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2022 IL App (2d) 200556-U¶ 25 On September 24, 2020, respondent filed his first notice of appeal (appeal No. 2-20-0556),
in which he appealed the trial court’s May 28, 2020, dissolution judgment and August 25, 2020,
contempt finding.
¶ 26 On October 6, 2020, the court held a hearing for status on the payment of the purge. While
respondent was testifying, he introduced the following documents into evidence: (1) an August 28,
2020, pay statement showing that, up until that date, respondent had earned approximately $15,088
from his job with CrossCountry Mortgage for 2020; (2) a September 4, 2020, cashier’s check
showing a payment to petitioner in the amount of $509; (3) a September 25, 2020 pay statement
showing that, up until that date, respondent had earned approximately $17,727 from his job with
CrossCountry Mortgage for 2020; and (4) an October 2, 2020, cashier’s check showing a payment
to petitioner in the amount of $509. Respondent also described a spreadsheet—which does not
seem to have been entered into evidence—purportedly establishing that his $370,000 in farm
proceeds were in fact depleted. Respondent testified that he lacked the “wherewithal” to satisfy
the outstanding arrearage for child support, maintenance, and any attorneys fees resulting from the
instant matter. He further testified that he had no other sources of income.
¶ 27 On cross-examination, respondent testified that he had reached out to his mother and
brother for financial assistance, but his mother had “no money to give” him and his brother did not
want to play a part in the court’s “extorsion” [sic]. When asked whether his brother had
characterized the court’s order as “extorsion” [sic], respondent later clarified that those were his
own words, not his brother’s. He then explained that, like his mother, his brother lacked the means
to financially assist him. Petitioner asked:
“Can you explain to the [c]ourt how you can be working as hard as possible to earn
income to satisfy the obligations to your family in a business that you’ve been involved in
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2022 IL App (2d) 200556-Ufor years, in a business where you followed the same mentor from place to place and only
make $1,100 a month? Can you explain that to the [c]ourt?”
Respondent replied, stating that it had been “an odd year,” although he recognized that “the real
estate market has picked up.” He further testified that he had been working over 40 hours a week,
and that he had four loans that would close soon, netting respondent a total of $5,000. Respondent
had not “looked into” claiming “early Social Security,” and was unaware that such a path would
lead to his children receiving “a combined benefit that would be half of [his] total benefit.”
¶ 28 The court asked respondent whether he had considered branching out into other forms of
employment or if he had since applied to other mortgage businesses or banks to earn more income.
Respondent responded in the negative. The court found that respondent had not purged the
contempt and again held the matter over for 30 days to determine sanctions, effectively giving
respondent additional time to gather funds to avoid being placed into custody.
¶ 29 On December 15, 2020, the parties appeared for a determination of sanctions as to the
earlier finding of contempt. In allocution, respondent informed the court that he had made progress
in securing some funds for the children through early Social Security benefits. Respondent
reiterated that there was no way he could afford to pay the amount of support specified by the
court’s judgment, though, maintaining that his mother could no longer afford to support him and
that “there [was] no money in the bank.” Nonetheless, the court noted that respondent had not
“done everything that the court ha[d] asked [him] to do,” such as “seek other employment.”
Recognizing that respondent’s support obligations did not constitute his family’s debts, the court
also noted that respondent had refused to reach out to any family members concerning financial
assistance, as he had done “during the many years that [respondent] was married to [petitioner].”
Ultimately, the court ordered respondent to appear on December 23, 2020, for incarceration
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2022 IL App (2d) 200556-U“unless [he came] up with $7500” before that date in order to become current with his support
obligations.
¶ 30 During the December 15, 2020, hearing, petitioner also mentioned that she had filed a “new
petition for rule and a new rule that issued for the accruing arrearages since August 25th, but also
for [the] $9521 IRS tax refund that was intercepted on [petitioner’s] tax [refund].” This second
petition for rule to show cause does not appear within the record.
¶ 31 On December 23, 2020, the trial court entered a mittimus order placing respondent into
custody pursuant to its earlier contempt finding. On January 6, 2021, respondent filed his second
notice of appeal (appeal No. 2-21-0011), appealing the trial court’s: (1) May 28, 2020, dissolution
judgment; (2) August 25, 2020, contempt finding; and (3) December 23, 2020, mittimus order. On
January 19, 2021, the trial court entered an order releasing respondent from the custody of the
Kane County sheriff instanter and requiring him to appear on January 26, 2021, for “further
sentencing on contempt on the Rule issued on [August 25, 2020],” “further status on payments,”
and for hearing on petitioner’s second motion for a rule to show cause. On January 26, 2021, the
trial court prepared an order—which was filed on January 27, 2021—specifying that petitioner
had elected only to proceed with the second motion for rule to show cause, of which respondent
was found in indirect civil contempt of court. The matter was continued to April 13, 2021, for
sanctions. The record does not contain any transcripts from January 26, 2021, or any records
whatsoever from the April 13, 2021, date to establish whether respondent was indeed sanctioned
for his second finding of contempt.
¶ 32 II. ANALYSIS
¶ 33 On appeal, respondent argues that: (1) the trial court abused its discretion when it
considered his mother’s prior gifts as income, and (2) the trial court’s finding of contempt “was
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2022 IL App (2d) 200556-Uagainst the manifest weight of the evidence and an abuse of discretion.” Because we lack
jurisdiction to consider this first issue, however, we only consider respondent’s arguments
concerning his first contempt finding.
¶ 34 A. Jurisdiction
¶ 35 While the parties have not addressed whether we have jurisdiction over this appeal, we
have an independent obligation to consider our jurisdiction, and find that we must dismiss the
portions of respondent’s consolidated appeal dealing with the trial court’s May 28, 2020,
dissolution judgment.
¶ 36 According to Illinois Supreme Court Rule 304(a) (eff. March 8, 2016):
“If multiple parties or multiple claims for relief are involved in an action, an appeal
may be taken from a final judgment as to one or more but fewer than all of the parties or
claims only if the trial court has made an express written finding that there is no just reason
for delaying either enforcement or appeal or both. *** In the absence of such a finding,
any judgment that adjudicates fewer than all of the claims or the rights and liabilities of
fewer than all the parties is not enforceable or appealable and is subject to revision at any
time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all
the parties.”
“This rule [is] meant to ‘discourage piecemeal appeals in the absence of a just reason and to remove
the uncertainty which existed when a final judgment was entered on fewer than all of the matters
in the controversy.’ ” In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008) (citing Marsh v.
Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464 (1990)). “An order is final and
appealable if it terminates the litigation between the parties on the merits or disposes of the rights
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2022 IL App (2d) 200556-Uof the parties, either on the entire controversy or a separate part thereof.” R.W. Dunteman Co. v.
C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998).
¶ 37 An exception to this rule deals with appeals from “order[s] finding a person or entity in
contempt of court which impose[ ]a monetary [fine] or other penalty.” Ill. S. Ct. R. 304(b)(5) (eff.
March 8, 2016). In order for such an order to be appealable, the trial court issuing the contempt
order and resulting sanction does not need to make an express written finding that “there is no just
reason for delaying either enforcement or appeal or both” under Rule 304(a). Id. However, “only
a contempt judgment that imposes a sanction is a final, appealable order.” Gutman, 232 Ill. 2d at
152 (emphasis in original); see Valencia v. Valencia, 71 Ill. 2d 220, 228 (1978) (“Generally, it is
held that where no punishment has been imposed an order adjudicating one to be in contempt is
not final and is not reviewable”).
¶ 38 Here, respondent filed his first notice of appeal for appeal No. 2-20-0556 on September 24,
2020, appealing the trial court’s May 28, 2020, dissolution judgment and August 25, 2020, finding
of indirect civil contempt. However, at the time, respondent was not yet sanctioned for the August
25, 2020, finding of indirect civil contempt, meaning petitioner’s first petition for rule to show
cause remained pending. Gutman, 232 Ill. 2d at 152; In re Marriage of Knoerr, 377 Ill. App. 3d
1042, 1049 (2007). As a result, at the time respondent’s first notice of appeal was filed, we lacked
jurisdiction to consider the court’s May 28, 2020, judgment or the August 25, 2020, contempt
finding. Id. On December 23, 2020, however, the trial court entered its mittimus order placing
respondent into custody, providing us with jurisdiction to consider respondent’s contentions as to
the August 25, 2020, contempt finding under Illinois Supreme Court Rule 303(a)(2) (eff. July 1,
2017) (“When a timely postjudgment motion has been filed by any party, whether in a jury case
or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending
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2022 IL App (2d) 200556-Upostjudgment motion, or before the final disposition of any separate claim, becomes effective when
the order disposing of said motion or claim is entered”).
¶ 39 On January 6, 2021, when respondent filed his second notice of appeal, the mittimus order
had already been entered, meaning that we had jurisdiction to consider the trial court’s August 25,
2020, finding of contempt in both appeals. However, petitioner’s second petition for rule to show
cause—as mentioned by the court in its December 15, 2020, order—remained pending at the time
respondent filed his second notice of appeal. Because the record contains no indication that this
second petition for rule to show cause had been finalized through the imposition of a corresponding
sanction, we lack jurisdiction to address respondent’s contentions as to the trial court’s May 28,
2020, dissolution judgment, which did not include any requisite 304(a) findings. Knoerr, 377 Ill.
App. 3d at 1049. For this reason, we dismiss the portions of appeals Nos. 2-20-0566 and 2-21-
0011 dealing with the trial court’s May 28, 2020, dissolution judgment.2
2
Respondent may reinstate the dismissed portions of his appeal by refiling a notice of
appeal within 30 days of (1) the entry by the trial court of a Rule 304(a) finding, or (2) the final
judgment on petitioner’s second petition for rule to show cause. Knoerr, 377 Ill. App. 3d at 1050.
If the trial court’s jurisdiction has lapsed, respondent may invoke the saving provisions of Illinois
Supreme Court Rule 303(a)(2) (eff. July 1, 2017). Id. This rule allows us to give effect to a
premature notice of appeal upon the resolution of the last pending post judgment motion. Id. If,
upon receipt of this order, respondent is unable to timely file a notice of appeal, he may move
within 21 days to establish our jurisdiction and supplement the record to show the resolution of
the pending matters. If the motion is well-founded, we will grant it, vacate the aforementioned
dismissals, and the parties may proceed with the appeal. See Id.
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2022 IL App (2d) 200556-U¶ 40 B. August 25, 2020, Contempt Finding and Sanction
¶ 41 Having jurisdiction under Rules 304(b)(5) and 303(a)(2) to consider the portions of
respondent’s appeals dealing with the trial court’s August 25, 2020, finding of contempt, 3 we find
that the trial court did not abuse its discretion when making its first finding that respondent was in
indirect civil contempt. Provisions in a judgment of dissolution concerning maintenance and child
support may be enforced through contempt proceedings. 750 ILCS 5/502(e) (West 2020). In this
context, a contempt petition is known as a “ ‘petition for rule to show cause.’ ” In re Marriage of
Berto, 344 Ill. App. 3d 705, 711 (2003). “A rule to show cause is one means by which to bring an
alleged contemnor before the trial court when the failure to comply with a court order is the alleged
contemptuous behavior.” Id.¶ 42 “ ‘The power to enforce an order to pay money through contempt is limited to cases of
willful [and contumacious] refusal to obey the court's order.’ ” In re Marriage of Steinberg, 302
Ill. App. 3d 845, 853 (1998) (citing In re Marriage of Logston, 103 Ill.2d 266, 285 (1984)). “The
failure to make support payments as ordered is prima facie evidence of contempt.” In re Marriage
of Barile, 385 Ill. App. 3d 752, 758 (2008). After the party moving for a finding of contempt
3
While it may be argued that the appeal as to the contempt proceeding became moot when
respondent had been released from custody, we are unable to definitely establish as much, as it is
unclear from the record whether respondent may face further sanctions as a result of the August
25, 2020, finding of indirect civil contempt, especially given the language in the January 19, 2021,
which suggests that respondent never complied with the trial court’s judgment of dissolution or
otherwise purged his contempt. In re Marriage of Betts, 155 Ill. App. 3d 85, 104 (payment of a
purge renders appeal as to a finding of contempt moot).
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2022 IL App (2d) 200556-Uestablishes a prima facie case of contempt, the burden shifts to the alleged contemnor to show that
the failure to make the requisite support payments “was not willful or contumacious and that there
exists a valid excuse for his failure to pay.” Id. “To prove this defense, [one] must show that he
neither has money now with which he can pay nor has he disposed wrongfully of money or assets
with which he might have paid.” In re Marriage of Dall, 212 Ill. App. 3d 85, 97 (1991). The
defense of poverty or misfortune resulting in an ability to make court ordered payments “has been
found applicable only in the most extreme cases, notably where a defendant had no money and no
way of getting money to meet his support obligations.” Id.; In re Marriage of Betts, 155 Ill. App.
3d 85, 100 (1987). “Whether noncompliance is [willful] or with a valid excuse is a question of fact
for the trial court.” In re Marriage of Harvey, 136 Ill. App. 3d 116, 118. An alleged contemnor
cannot rely on the defense of poverty where the record shows that he or she unilaterally terminated
his or her income or did not use available funds to pay court-ordered support. Dall, 212 Ill. App.
3d at 96-98. “When a contempt appeal is filed, the standard of review is abuse of discretion.” In
re Estate of Baldassarre, 2018 IL App (2d) 170996, ¶ 22; In re Marriage of O’Malley ex rel.
Godfrey, 201216 IL App (1st) 151118, ¶ 25. 4
¶ 43 In Dall, the respondent argued that the trial court abused its discretion in determining that
the respondent was guilty of contempt for failure to pay child support. 212 Ill. App. 3d at 89. There,
4
We recognize that some authority confusingly provides two standards of review for
contempt appeals, providing that we will not disturb a trial court’s findings unless they “are against
the manifest weight of the evidence or the record reflects an abuse of discretion.” Barile, 385 Ill.
App. 3d at 759 (citing Logston, 103 Ill.2d at 286-87). However, our conclusions here remain the
same under either the manifest-weight standard or the abuse-of-discretion standard.
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2022 IL App (2d) 200556-Uat the time the court made its order setting the respondent’s support obligations, the respondent
voluntarily resigned from his employment as sheriff. Id. at 93-94. Consequently, the respondent
stated that he was “unemployed, without income, ineligible to receive unemployment
compensation, and unable to make the child support payments as ordered by the trial court.” Id. at
94. The respondent did not seek alternate employment following his resignation and did not apply
$7500 that he had since received in loans and other means towards his support obligations. Id. at
96. Nonetheless, the respondent argued that the trial court erred in finding him in contempt, as “his
acknowledged failure to pay child support ‘was not done in contempt, but rather for other reasons,
namely, lack of income.’ ” Id. The appellate court found that, based on these facts, the respondent
had not shown his “financial inability to comply with the order by the requisite definite and explicit
evidence,” meaning he failed to meet his burden of proof in showing his failure to meet his support
obligations was not willful. Id. at 97.
¶ 44 Here, respondent seems to reason that the trial court’s finding of indirect civil contempt
was improper because it was based on “an erroneous imputation of financial gifts no longer
available from [respondent’s] 96-year-old mother,” and because respondent “lacked the income to
meet the court ordered obligations.” For both of these reasons, respondent suggests that his failure
to pay was not willful. We disagree.
¶ 45 Concerning respondent’s first argument, that the trial court’s wrongful inclusion of his
mother’s gifts as income provided him with a “valid excuse for failure to pay as ordered,” we again
note that we do not have jurisdiction to review the propriety of the May 28, 2020, dissolution
judgment that defined respondent’s income. Knoerr, 377 Ill. App. 3d at 1049. Accordingly,
because we have no jurisdiction over that judgment, we will not consider whether the trial court’s
inclusion of the financial gifts of income—as set forth in the judgment—was proper.
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2022 IL App (2d) 200556-U¶ 46 Regardless, we note that, in determining whether respondent’s failure to pay was willful,
we are not concerned with whether respondent made a good faith attempt to pay what he
considered to be appropriate support. Instead, the issue is whether respondent complied with the
court’s dissolution judgment as written, no matter if respondent disagreed with the reasoning
behind it. Steinberg, 302 Ill. App. 3d at 853 (the issue in an appeal from a finding of contempt was
“not whether [the] respondent acted with good intentions in paying what he thought was
appropriate support. The issue [was] whether he made a good-faith effort to comply with the
formula set out in the dissolution agreement”).
¶ 47 Second, while respondent argues that he simply lacked the income to comply with his
support obligations, we nonetheless conclude that the trial court’s finding of indirect civil contempt
was not an abuse of discretion. Again, once a party seeking a contempt finding has made a
prima facie case of contempt by showing the contemnor has failed to make court-ordered support
payments, the burden shifts to the alleged contemnor to show that such a failure was not willful or
contumacious. Barile, 385 Ill. App. 3d at 758. Here, during the August 25, 2020, hearing on
petitioner’s first petition for rule to show cause, petitioner showed—and indeed respondent
admitted—that he had not made his court-ordered support payments despite having knowledge of
his obligations to do so. Consequently, it became respondent’s burden to show that his failure to
make the payments was not willful. Id. Although respondent tried to do so by arguing he lacked
the means to comply with the court’s order, the record shows that respondent made no attempts to
acquire the funds to pay the court-ordered support, suggesting that his failure to pay support was
willful. Dall, 212 Ill. App. 3d at 97.
¶ 48 Specifically, despite the fact that respondent’s mother had never refused his repeated, prior
requests for money—leading to the trial court’s inclusion of the financial gifts as income—
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2022 IL App (2d) 200556-Urespondent testified at the August 25, 2020, contempt hearing that he had not even attempted to
ask his mother for financial assistance since the court entered its May 28, 2020, dissolution
judgment. It can be further inferred that respondent neglected to ask his brother for any financial
assistance as well, as respondent testified at the contempt hearing that he had not sought out
additional sources of income. Again, like respondent’s mother, the record shows that respondent’s
brother had previously acquiesced to respondent’s earlier requests for assistance, as he had given
respondent $80,000 to help respondent avoid foreclosure without ever seeking repayment of that
amount. By failing to even request assistance from his family members, respondent effectively
foreclosed a prior stream of income which had previously been available to him, similar to the
respondent in Dall unilaterally resigning from his position as sheriff. Id. at 96. Because an alleged
contemnor cannot rely on the defense of poverty while unilaterally foreclosing himself of possible
income, and because respondent had not shown that he had no other ways of acquiring more
finances to meet his obligations, the trial court properly found that respondent willfully disobeyed
its judgment of dissolution setting respondent’s support obligations. Id. at 97; Betts, 155 Ill. App.
3d at 100.
¶ 49 We recognize that, at the October 6, 2020, hearing on the status of respondent’s purge,
respondent had testified that, since the August 25, 2020, hearing, he had asked his mother and
brother for financial assistance but was told they did not have the means to support him.
Regardless, at the time the trial court made its August 25, 2020, finding of contempt, respondent
had not made such requests to his family, meaning this fact is irrelevant in determining whether
the trial court’s August 25, 2020, contempt findings were proper. Still, the trial court does not seem
to have accepted respondent’s testimony, and, again, the question of whether a contemnor’s
willingness in disobeying a court order is a question of fact to be decided by the trial court. Harvey,
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2022 IL App (2d) 200556-U136 Ill. App. 3d at 118. Additionally, at the October 6, 2020, hearing, respondent again
acknowledged that he had not sought out additional means of acquiring income. As provided
above, the defense of poverty is not applicable unless a defendant can show that he had no money
and no way of getting money to meet his support obligations. Betts, 155 Ill. App. 3d at 100.
¶ 50 Alternatively, the record here also suggests that respondent did have available funds which
he could have put towards his support obligations. Accordingly, the trial court had a second basis
to find that respondent’s failure to comply with its dissolution judgment was willful. Barile, 385
Ill. App. 3d at 759. At the August 25, 2020, contempt hearing, the parties argued as to the date in
which respondent allegedly gave $4500 to N.B. for a new car. While respondent suggested that he
had given N.B. $4500, taken from his $370,000 in farm proceeds, in 2018, his testimony
contradicts several portions of the record. As petitioner pointed out at the August 25, 2020, hearing,
during trial, respondent was thoroughly questioned as to his various expenditures of the farm
proceeds. At that time, despite extensive questioning on the subject, he never mentioned giving
N.B. any money for a vehicle. Furthermore, N.B. was only 15 years old in 2018, meaning that,
according to respondent’s proffered timeline, he had given N.B. money for a year before N.B.
would be able to legally drive. To this point, N.B. never mentioned to petitioner that he had
previously received any money from respondent in 2018.
¶ 51 On the other hand, evidence in the record does suggest that the $4500 payment was made
in 2020, during the time respondent was required to make support payments. As petitioner pointed
out, the $4500 that respondent had given to N.B. was exactly half of the value of the car that N.B.
had chosen in 2020, years after respondent insists he gave N.B. the money. Most importantly,
perhaps, the electronic message entered into evidence during the August 25, 2020, hearing shows
that petitioner and respondent had only agreed to split the cost of N.B.’s vehicle in June 2020,
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2022 IL App (2d) 200556-Usuggesting that respondent had given N.B. the $4500—which again, was half the total cost of the
car—at that time.
¶ 52 With this in mind, respondent’s July 24, 2020, pay statement, which was presented at the
August 25, 2020, hearing, indicated that, as of July 17, 2020, respondent had earned less than
$9000 during that year thus far. It seems incredulous that respondent would have spent over half
of his yearly earnings for N.B.’s new car while simultaneously failing to remain current with his
support obligations. Instead, the electronic message between the parties in conjunction with
respondent’s pay stub suggests that respondent had an alternate, unreported source of income that
enabled him to pay for N.B.’s vehicle. This conclusion is further bolstered by the fact that
respondent failed to bring any bank statements to the August 25, 2020, hearing to affirmatively
verify his supposed lack of funds, and by the fact that respondent utilized cashier’s checks to make
partial support payments to petitioner in 2020, effectively concealing the source of those payments.
Accordingly, because respondent had unilaterally acted to foreclose a possible source of income
and failed to otherwise establish a lack of means to comply with the court’s May 28, 2020,
dissolution judgment, the trial court correctly found that respondent’s noncompliance was willful,
meaning the decision to find respondent in indirect civil contempt was not an abuse of discretion.
¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, we dismiss the portions of respondent’s consolidated appeal
attacking the trial court’s judgment of dissolution and affirm the trial court’s finding of contempt.
¶ 55 Appeal dismissed in part; judgment affirmed in part.
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