Marriage of Wilde, In re

• Decision Date: 21 February 1986
• Docket Number: No. 2-84-1219,2-84-1219
• Citation: 490 N.E.2d 95,141 Ill.App.3d 464,95 Ill.Dec. 622
• Parties: , 95 Ill.Dec. 622 In re the MARRIAGE OF Kathleen WILDE n/k/a/ Kathleen Moore, Plaintiff-Appellant, and Allen Wilde, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 95

490 N.E.2d 95

141 Ill.App.3d 464, 95 Ill.Dec. 622

In re the MARRIAGE OF Kathleen WILDE n/k/a/ Kathleen Moore Plaintiff-Appellant and Allen Wilde, Defendant-Appellee.

No. 2-84-1219.

Appellate Court of Illinois Second District.

Feb. 21, 1986.

Gerard Kepple, St. Charles, for plaintiff-appellant.

William J. Harte, Chicago, for defendant-appellee.

HOPF, Justice:

On September 12, 1984, a hearing was conducted on the amended section 2-1401 petition of defendant, Allen Wilde. (Ill.Rev.Stat.1983 ch. 110, par. 2-1401.) The petition alleged that defendant's former wife, plaintiff, Kathleen Wilde Moore, had made false and fraudulent representations regarding the education of the couple's son, causing defendant to continue child support payments beyond the time of his legal obligation. The trial court granted defendant's petition and set a hearing for October 15, 1984, to consider the issue of sanctions against plaintiff and her attorney, Gerard Kepple. As a result of this hearing, the court concluded that Kepple was guilty of criminal contempt and imposed a fine of $500 against him. Kepple subsequently filed a motion to reconsider which was denied. On December 3, 1984, a hearing was conducted on defendant's petition to terminate child support. The trial court granted the petition, awarding defendant credit for child support payments made by defendant from December 15, 1982, to January 1, 1984.

Plaintiff appeals from orders of the trial court granting defendant's amended petition brought pursuant to section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-1401) and granting defendant's petition to terminate child support. Plaintiff's attorney appeals from the trial court's order finding him guilty of contempt.

Plaintiff, Kathleen Wilde Moore, and defendant, Allen Wilde, were divorced on March 28, 1969. At that time defendant was ordered to pay child support for Samuel Wilde, the minor child of the parties, in the sum of $20 per week. Shortly thereafter, defendant disappeared, refusing to pay child support. In June 1981, an action was brought by plaintiff against defendant for arrearages in child support. On December 18, 1981, the trial court ordered defendant to pay arrearages in the amount of $13,160, payable at the rate of $250 per month; the court also increased current child support to $25 per week.

On January 9, 1984, an agreed order was entered, finding that defendant was to continue to pay child support payments until June 1, 1984, when defendant's son, Samuel, would complete his high school education. (Defendant's son became 18 years old on December 23, 1983.) On July 23, 1984, defendant filed a section 2-1401 petition claiming that plaintiff had lied about Samuel's completion of high school, as Samuel had dropped out of high school in December 1982, and that, but for plaintiff's representations regarding Samuel's education, defendant would have legally ceased making current child support payments. Defendant asked the trial court to vacate any child support orders and arrearages entered since December 1982, and that he be given credit for them.

Plaintiff filed a motion to dismiss defendant's petition, contending that defendant's petition was deficient because it contained no allegations of due diligence or of a meritorious defense, that negligence on the part of the party seeking relief under section 2-1401 disqualifies that party from such relief, and that defendant's petition was deficient as a matter of law because unaccompanied by an affidavit as required under section 2-1401. On September 12, 1981, both defendant's affidavit and an amended section 2-1401 petition were filed in open court. In his affidavit defendant stated that both plaintiff and the son, Samuel, had represented to defendant, as late as March 1984, that Samuel was attending high school when, in fact, he had not attended since December 1982. Defendant's amended petition contained substantially the same contentions as the original petition plus the contention that he had acted with due diligence in bringing the petition and that he possessed a meritorious defense.

A hearing on defendant's petition was held on September 12, 1984. No court reporter was present at the proceedings. The September 14 order that issued, as a result of the September 12 hearing, granted defendant's amended 2-1401 petition and ordered that child support payments from December 1982 to January 1984 be applied to arrearages which accumulated prior to January 9, 1984. The court also ordered that the issue of sanctions against plaintiff and her attorney, Kepple, for false representations they made to defendant regarding Samuel's attending high school, was reserved for hearing on October 15, 1984.

At the October 15 hearing the court specifically stated that the purpose of the hearing was to determine "sanctions" against the party guilty of making false and material representations to defendant regarding Samuel's schooling. William Bochte, the attorney representing defendant at the time of the January 9, 1984, agreed order, and plaintiff, Kathleen Wilde Moore, were called as witnesses by the court and examined. Kepple was permitted to examine Bochte and Moore. Kepple himself testified although in the manner of a narrative. No attorney was present to represent Kepple. A letter, dated November 22, 1983, from Kepple to Bochte was submitted to the court. In the letter Kepple represented that Samuel would graduate from high school on or about June 1, 1984. The agreed order of January 9, 1984, was also tendered to the court.

At the conclusion of the hearing Kepple represented that the letter to Bochte was not in his handwriting but in that of his secretary's and that he had not signed the letter. The court commented that Kepple's letter to Bochte was clearly an offer of settlement for which Kepple bore the responsibility of reading before letting it go out and that it was clear from both the letter and the subsequent agreed order that there had not been a full and honest disclosure to defendant regarding the education of his son. The court imposed sanctions against Kepple for misrepresenting facts within his knowledge upon which the defendant and defendant's attorney relied in making the January 9 agreed order. The trial court's subsequent written order reflected its comments at the hearing. In that order the court found that Kepple's false representations constituted criminal contempt, and the court imposed a sanction of $500 to be paid to defendant's attorneys as partial payment for their fees.

On December 3, 1984, a hearing was conducted on defendant's petition to terminate child support which had been filed on October 15, 1984. The court found that defendant's son, Samuel, was emancipated as of December 1982, when he dropped out of school and began working on a full-time basis. On this basis, the court ordered that defendant be given credit for payments made since December 15, 1982, until January 1, 1984. Plaintiff filed a timely notice of appeal.

In this court defendant-appellee has failed to file a brief. However, under the holding of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493, a reviewing court may search the record and decide the merits of the appeal if justice so requires. Given the nature of this case, justice requires consideration of the merits of the appeal by this court.

In this court, plaintiff presents 10 issues for review. We elect, however, to treat these issues as three main contentions: (1) whether, in finding plaintiff's attorney, Kepple, guilty of contempt, the trial court denied him a full and proper hearing; (2) whether the trial court erred in granting defendant's amended 2-1401 petition; and (3) whether the trial court erred in holding that Samuel Wilde was an emancipated child.

Plaintiff's attorney, Kepple, contends that the order holding him in contempt cannot stand because he was denied a full and proper hearing, the court's allegations of fraudulent conduct and defendant's evidence did not prove him guilty beyond a reasonable doubt, and the trial judge was biased against him and, therefore, should have recused himself.

Contempt of court is conduct intended to embarrass, hinder or obstruct the administration of justice by a court, or to derogate from the court's authority or dignity, or to bring the administration of law into disrepute. (People v. Jashunsky (1972), 51 Ill.2d 220, 223, 282 N.E.2d 1.) Criminal contempt proceedings are directed to preservation of the dignity and authority of the court while civil contempts are prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for benefits of opposing parties. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill.2d 407, 409, 173 N.E.2d 417.) Where the sanction imposed by a court for contempt is punitive, such as imprisonment for a definite term or a fine in a sum certain, the contempt is criminal in nature. (Aurora Steel Products v. United Steelworkers of America (1981), 94 Ill.App.3d 97, 100, 49 Ill.Dec. 638, 418 N.E.2d 492.) Where a sanction imposed is strictly coercive, the contempt is civil. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill.2d 407, 410, 173 N.E.2d 417.) In Illinois a direct contempt occurs in the physical presence of the court, or within an integral part of the court, making the contemptuous conduct a matter within the court's personal observation and knowledge. (Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill.App.3d 669, 674, 69 Ill.Dec. 456, 447 N.E.2d 891; People v. Pincham (1976), 38 Ill.App.3d 1043, 1045, 350 N.E.2d 67.) An indirect contempt is one which in whole or in essential part is committed out of the presence of the court and is, therefore, dependent for its proof upon extrinsic evidence of some kind or upon the establishment of facts of which the court possesses no personal...