Ottwell v. Ottwell

• Decision Date: 15 April 1988
• Docket Number: No. 5-87-0577,5-87-0577
• Citation: 167 Ill.App.3d 901,118 Ill.Dec. 873,522 N.E.2d 328
• Parties: , 118 Ill.Dec. 873 Rebecca OTTWELL, now Wulf, Petitioner-Appellant, v. Herbert OTTWELL, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 328

522 N.E.2d 328

167 Ill.App.3d 901, 118 Ill.Dec. 873

Rebecca OTTWELL, now Wulf, Petitioner-Appellant, v. Herbert OTTWELL, Respondent-Appellee.

No. 5-87-0577.

Appellate Court of Illinois Fifth District.

April 15, 1988.

R. Michael Fischer, Alton, for petitioner-appellant.

No brief filed for respondent-appellee.

LEWIS delivered the opinion of the court:

This appeal is from an order entered on June 24, 1987, denying a petition under section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1401) filed by Rebecca Ottwell, now Wulf, (hereinafter petitioner). The petition asked that the circuit court vacate its order entered on December 13, 1985, as that order was entered by mistake as to the amount that Herbert Ottwell (hereinafter respondent) was in arrears in child support and because that order was entered after a hearing was conducted without serving notice on petitioner and in which she did not participate. The petition also challenged other orders entered by the circuit court which modified her rights to past due and future child support payments.

It should be noted that respondent has failed to file a brief in this cause in accordance with Supreme Court Rule 341 (107 Ill.2d R. 341). This court may, in its sound discretion, reverse for failure of respondent to comply with the Supreme Court Rule or determine a case on its merits. (Altman v. Altman (1974), 22 Ill.App.3d 420, 318 N.E.2d 61.) "This court is not obligated to act as an advocate or search the record to affirm the judgment of the trial court; however, a considered judgment should not be set aside without some consideration of the merits of the appeal." (Sostak v. Sostak (1983), 113 Ill.App.3d 954, 957, 69 Ill.Dec. 658, 660, 447 N.E.2d 1345, 1347.) Since the petitioner's brief and the record in this case are sufficient to make a determination of the issues presented, we have exercised our discretion and considered the merits of this case even absent the benefit of respondent's brief.

On appeal, petitioner contends that the circuit court's order of June 24, 1987, denying petitioner's petition to vacate was manifestly erroneous as the evidence demonstrated that the circuit court improperly reduced petitioner's past due child support. She also contends that any orders entered between respondent and the Illinois Department of Public Aid (IDPA) were not res judicata as to petitioner's rights for past due child support. In conjunction with this issue, petitioner argues that the state's attorney who presented a petition for citation on behalf of IDPA was not her attorney and that any agreements concerning her rights to child support entered between respondent and the state's attorney were not binding on her. Petitioner claims that the orders that suspended respondent's child support payments and the orders entered by the circuit court on December 13, 1985, and October 6, 1986, are void as no petition to modify the divorce decree was filed and as no notice of the hearings was served on petitioner. Petitioner lastly contends that the full amount of respondent's arrearage of child support should be $16,464.

The first issue to be considered is petitioner's contention that the circuit court's orders as to her rights to child support were void as no notice of the hearings wherein the circuit court reduced or modified her rights to child support was served on her, and because the circuit court considered her rights to past due and future child support without a petition to modify before it. By determining this issue, petitioner's remaining issues will be resolved.

The following facts are necessary to the disposition of this appeal. Petitioner and respondent were married on January 20, 1968. Three children, Patrick Wade Ottwell, Lisa Lynn Ottwell, and Lori Sue Ottwell, were born as a result of that marriage. On July 15, 1976, petitioner and respondent were divorced. As part of the divorce decree, a stipulation was entered with regard to the marital property, with regard to the minor children's custody, and with regard to child support. This stipulation provided that petitioner was to have custody of the three minor children and that respondent was to pay child support in the amount of $75 per child per month. This total monthly child support of $225 was to be paid in semi-monthly installments of $112.50.

From July 1976, until January 1982, numerous petitions were filed and orders entered none of which are pertinent to this appeal. However, on January 27, 1982, the circuit court entered an order, pursuant to a petition to modify filed by petitioner, in which the circuit court increased respondent's child support payments from $75 to $100 per child per month or a total of $300 per month instead of $225 per month.

Subsequently, on November 28, 1983, a Petition for Leave to Intervene was filed by the Madison County State's Attorney on behalf of the Illinois Department of Public Aid (IDPA). This petition stated that petitioner was a recipient of Aid to Dependent Children (ADC) for her minor children and as a result of her receiving financial aid from ADC and pursuant to section 10-1 of The Illinois Public Aid Code (Ill.Rev.Stat.1981, ch. 23, par. 10-1), she had assigned her rights to receive child support payments to the IDPA. This petition also stated that IDPA's intervention would not prejudice the rights of the original parties in this cause. Attached to the petition to intervene was a petition for citation which alleged that respondent was in arrears in his child support in the amount of $1250.

A hearing on IDPA's petition for citation was held on January 20, 1984. The record reflects that written notice of the hearing was sent to the assistant state's attorney and to respondent but not to petitioner. The order entered by the circuit court on January 20, 1984, was a form order upon which several boxes were checked. One of the boxes marked indicated that respondent was unemployed and had no source of income and that respondent's support payments were to be temporarily halted. The order further provided that the matter would be set for a rehearing three months hence.

A review hearing on IDPA's petition for citation was held on April 27, 1984. Written notice for this hearing reflected that notice was sent to respondent and to the assistant state's attorney but not to petitioner. However, petitioner admitted that she was present at that hearing. The order entered on that date reflected that she advised the court that she was no longer receiving public aid for her three children. This order entered on April 27, 1984, indicated that respondent was now self-employed but that he had not yet received any income from his work. The order ordered that respondent's support payments remained temporarily suspended. It was also ordered that this cause was to be set for a review hearing on May 25, 1984.

At the review hearing on May 25, 1984, an order was entered that reflected that respondent's child support was to be reinstated in the amount of $150 per month and that the support payments were to be paid to petitioner. This order also held that respondent was in arrears for child support in the amount of $1850. The form order stated that due notice was given in this cause but no written notice of this hearing appears in the record. However, the order was signed by both petitioner and respondent. Again, this order reflected that this matter was to be reset for a review hearing on October 26, 1984.

Another review hearing on IDPA's original petition for citation was held on October 26, 1984. The form order entered on October 26, 1984, reflected that respondent was unemployed and that he had no source of income. Respondent was ordered to continue to seek employment. A review hearing was ordered set for January 18, 1985. The record does not reveal that notice was sent to the petitioner regarding this October 26, 1984, hearing nor does the order entered on October 26, 1984, show that petitioner was present.

The order entered on January 18, 1985, revealed that respondent failed to appear and that a body attachment was issued against respondent with a bond of $250 set. The record does not contain any written notice for this January 18, 1985, hearing. The order of this date stated that petitioner need not appear at the next hearing date.

The record next revealed that a notice of hearing was sent to respondent and the state's attorney regarding a review hearing set for April 19, 1985. A hearing was held on this date and the form order entered on April 19, 1985, indicated that respondent remained unemployed and that he was to look for work and keep records of his employment search. A review hearing was set for July 19, 1985. The record does not reflect that petitioner was present at this April 19, 1985, hearing.

A subsequent order entered on July 19, 1985, was identical to the order entered on April 19, 1985. The record fails to disclose that a notice of the July 19, 1985, hearing was sent to petitioner. This order set this cause for a review hearing on December 6, 1985.

A December 6, 1985, order reflected that respondent failed to appear and a body attachment was issued against him with bond set in the amount of $500.

A notice of a December 13, 1985, hearing was sent to respondent and to the state's attorney but not to petitioner. A transcript of this hearing was not included in the record just as there were not any transcripts of the previous hearings provided. The order entered on December 13, 1985, held that respondent remained unemployed and that he had no source of income. This order provided that respondent's child support remained temporarily suspended even though no previous order reinstating the suspension of respondent's child support payments was entered. The circuit court held that respondent was in arrears in his child support payments in the amount of $2600 and that judgment for this amount was entered for...