In re Marriage of Sharp

• Decision Date: 14 December 2006
• Docket Number: No. 2-05-1233.,2-05-1233.
• Parties: In re MARRIAGE OF Laurie SHARP, Petitioner-Appellee, and Steven Sharp, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 539

860 N.E.2d 539

307 Ill.Dec. 885

In re MARRIAGE OF Laurie SHARP, Petitioner-Appellee, and Steven Sharp, Respondent-Appellant.

No. 2-05-1233.

Appellate Court of Illinois, Second District.

December 14, 2006.

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Lawrence S. Starkopf, Rachel C. Heyman, Starkopf & Silverman, Highland Park, for Steven Sharp.

Barry A. Rose, Round Lake Park, for Laurie Sharp.

Justice O'MALLEY delivered the opinion of the court:

Pursuant to Supreme Court Rule 304(b)(5) (155 Ill.2d R. 304(b)(5)), respondent, Steven Sharp, appeals from the trial court's order finding him in indirect civil contempt for refusing to comply with a court order directing him to pay temporary child support and maintenance to petitioner, Laurie Sharp. In challenging the trial court's contempt order, respondent also requests this court to review the underlying support order. We affirm.

BACKGROUND

On May 30, 1993, the parties were married. They have one child together, Alexandra, who was born in 1998. On April 14, 2004, petitioner filed a petition for dissolution of marriage. On August 31, 2005, the trial court entered an order requiring respondent to pay $5,000 per month in temporary child support and maintenance. In September 2005, pursuant to a citation to discover assets, petitioner received partial payment on the support order through garnishment of respondent's checking account, in the amount of $2,021.02. On December 5, 2005, petitioner filed a petition for a rule to show cause, alleging that respondent had disobeyed the support order by failing to make any payments to petitioner for the months of September, October, November, and December, causing an arrearage of $17,978.98 (which is $20,000 less the garnished amount of $2,021.02). On December 12, 2005, the trial court found that respondent's failure to comply with the support order was willful and found respondent in indirect civil contempt. Respondent was sentenced to 180 days in county jail, which was stayed to give respondent time to satisfy the arrearage. On December 15, 2005, respondent filed a notice of appeal from the contempt finding. On January 11, 2006, respondent was remanded to Lake County jail for failure to pay the support arrearage. On January 13, 2006, the trial court sua sponte ordered respondent's release, stayed the contempt order, and continued the matter for status. It appears that respondent is still subject to the contempt order.

The evidence at the contempt hearing established that respondent is the sole income beneficiary of a trust established by his grandfather. The trust has been respondent's primary source of income since the parties have been married. In addition to the trust income, respondent earned approximately $8,500 in 2004 and $6,500 in 2005 from consulting work. The drafter and co-trustee of the trust, Francis Beninati, testified that the trust qualifies as a spendthrift trust. Based on respondent's requests for distribution, the trustees would determine every month the minimum amount that could be distributed to respondent for his living expenses and obligations. Trust distributions were made to respondent by wire transfer into respondent's checking account until September 2005, at which time respondent instructed the trustees to send payments directly to him to avoid garnishment of the funds. Beninati testified that the fact that the court ordered temporary support does not bind the trustees to pay those amounts. Indeed, although respondent had requested that the trust pay the support, the trustees refused to make the distributions, deciding that they were not required to make distributions for the benefit of petitioner or Alexandra.

In February 2004, the trust had an approximate value of $600,000. Respondent turned 35 years old in March 2004, and exercised his right to withdraw $200,000 from the trust at that time. The trustees continued to make monthly discretionary distributions, and between the filing of the petition for dissolution of marriage in April 2004 and these contempt proceedings in December 2005, the trustees distributed to respondent directly or for his benefit trust income in excess of $180,000, which respondent used to pay for rent, Porsche leasing payments and repairs, a Caribbean vacation, attorney fees, and other living expenses. More specifically, from August 16, 2005, through November 21, 2005, the approximate period where respondent was under the order of support, the trust distributed $31,000 for his benefit. Furthermore, Beninati testified that it would be within the trustees' discretion to pay $30,000 to secure respondent's release if he were jailed for contempt.

The only support payment that petitioner had received at the time of the contempt hearing was the approximately $2,000 that was garnished from respondent's bank account.

In his defense, respondent testified that he is unable to make support payments because the money he receives from the trust is insufficient to pay his expenses, including a large amount of debt. As such, respondent recently borrowed $8,000 from friends and family to help pay his expenses. Furthermore, respondent testified that he had spent approximately $2,400 on Alexandra while she was in his care and paid petitioner $700 for other expenses; however, petitioner denied receiving any money from respondent other than the proceeds from the citation.

ANALYSIS

Before considering the merits of this appeal, we must determine whether to grant respondent's motion to supplement the record on appeal with a trust document that was entered into evidence in the divorce proceedings but is not part of the record on appeal. Petitioner has filed both an objection to the motion to supplement the record and a motion to strike respondent's reply brief. We deny respondent's motion to supplement the record on appeal and grant petitioner's motion to strike respondent's reply brief.

The appellant bears the responsibility of providing a complete appellate record for review. In re Marriage of Drewitch, 263 Ill.App.3d 1088, 1096, 201 Ill.Dec. 620, 636 N.E.2d 1052 (1994); People v. Pertz, 242 Ill.App.3d 864, 905, 183 Ill.Dec. 77, 610 N.E.2d 1321 (1993). Supreme Court Rule 329 (Official Reports Advance Sheet No. 22 (October 26, 2006), R. 329, eff. January 1, 2006) permits the amendment of a record if there are material omissions or inaccuracies or if the record otherwise is insufficient to present fully and fairly the questions involved. People v. Thomas, 201 Ill.App.3d 255, 258-59, 147 Ill.Dec. 262, 559 N.E.2d 262 (1990). However, where an amendment would be unfair to a party, the courts have refused to permit the amendment. Thomas, 201 Ill.App.3d at 259, 147 Ill. Dec. 262, 559 N.E.2d 262; People v. Span, 156 Ill.App.3d 1046, 1053, 109 Ill. Dec. 218, 509 N.E.2d 1057 (1987). Such is the case where the appellant's motion to supplement the record on appeal is filed after all briefing is complete and the opposing party has not argued the merits of the issue in its brief; in such instances, the opposing party would be unfairly prejudiced by allowing the motion. Compare Span, 156 Ill.App.3d at 1053, 109 Ill.Dec. 218, 509 N.E.2d 1057 (court allowed the defendant's motion to supplement the record even though it was presented after the briefs were filed because the State would not be unduly prejudiced, its brief having contained an alternative argument based on the merits of the issue), with Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1070, 6 Ill.Dec. 77, 362 N.E.2d 712 (1977) (motion by the defendant to amend the record was denied, where it was filed after the plaintiff's brief had already been filed and the plaintiff did not argue the merits of the issue but rather urged the defendant's procedural default on appeal).

Here, given the tardiness of respondent's motion to supplement, petitioner would be unduly prejudiced. Respondent's motion was filed after all briefing was complete. Petitioner specifically noted that she was precluded from citing to the trust provisions in her brief because the trust agreement had not been made part of the record on appeal. Therefore, petitioner was precluded from fully briefing any issue regarding the terms of the trust agreement.

Respondent had the opportunity to examine the record and ensure that no pertinent material was omitted. See Pertz, 242 Ill.App.3d at 905, 183 Ill.Dec. 77, 610 N.E.2d 1321. As respondent argued on appeal that the terms of the trust served as a defense to the contempt charges, it was incumbent on respondent to ensure that the trust agreement was included in the record for our review. Permitting respondent to supplement the record would set a dangerous precedent for allowing piecemeal creation of the record, with supplemental briefing and rebriefing, derogating the appellate process. Pertz, 242 Ill. App.3d at 905, 183 Ill.Dec. 77, 610 N.E.2d 1321. As such, we deny the motion to supplement the record on appeal.

Inasmuch as respondent is seeking to supplement the record on appeal to rebut petitioner's argument that the trust in question was not, in fact, a spendthrift trust, we deny the motion because petitioner has waived this argument. Petitioner disputes that the trust qualifies as a spendthrift trust for the first time on appeal. The nature of the trust was not in dispute in the trial court, and the parties and the court proceeded on the basis that this was a spendthrift trust. The theory under which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review. Daniels v. Anderson, 162 Ill.2d 47, 58, 204 Ill.Dec. 666, 642 N.E.2d 128 (1994). To allow a party to change his or her trial theory on review would weaken the adversarial process and the system of appellate jurisdiction, and could also prejudice the opposing party, who did not have an opportunity to respond to that theory in the trial court...