In re Marriage of Baumgartner ( 2014 )

Illinois Official Reports
Appellate Court
In re Marriage of Baumgartner, 2014 IL App (1st) 120552Appellate Court In re MARRIAGE OF SUSAN LYNN BAUMGARTNER,
Caption Petitioner-Appellant, and CRAIG BAUMGARTNER, Respondent-
Appellee.
District & No. First District, Sixth Division
Docket Nos. 1-12-0552, 1-12-0779 cons.
Filed March 31, 2014
Held In postjudgment proceedings arising from the dissolution of the
(Note: This syllabus parties’ marriage, the trial court properly denied petitioner’s petition
constitutes no part of the seeking the enforcement of the provision of the dissolution judgment
opinion of the court but requiring the parties to pay for their son’s college expenses and
has been prepared by the properly granted respondent’s petition to terminate that obligation,
Reporter of Decisions since the trial court correctly determined the son was emancipated and
for the convenience of lacked the desire and ability to pursue a college education, and,
the reader.) furthermore, petitioner’s request for an adjudication of indirect
criminal contempt against respondent was properly dismissed in view
of petitioner’s failure to establish any court order that respondent
violated.
Decision Under Appeal from the Circuit Court of Cook County, No. 1997-D-019363;
Review the Hon. Jeanne Marie Reynolds, Judge, presiding.
Judgment Affirmed.
Counsel on Richard B. Kirk, of Schirger Law Offices, LLC, of Rockford, for
Appeal appellant.
Julie Campbell, of Poulos Black PC, of Evanston, for appellee.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 The petitioner, Susan Lynn Baumgartner (Susan), appeals from orders of the circuit court
of Cook County denying her amended petition to enforce the post high school educational
provisions of the judgment for dissolution of marriage and granting the amended cross-petition
of the respondent, Craig Baumgartner (Craig), terminating the parties’ obligation to provide
those expenses for the parties’ son, Maxwell Baumgartner (Max). In a separate appeal, Susan
appeals from the dismissal of her petition for adjudication of indirect criminal contempt
against Craig. The two appeals have been consolidated for review.
¶2 On appeal, Susan contends that: (1) the trial court erred when it considered Craig’s
reinstated petition; (2) the evidence supported the enforcement of the dissolution judgment’s
educational support provision for Max; and (3) the trial court erred when it sua sponte ordered
her contempt petition against Craig stricken. For the reasons stated below, we affirm the
judgment of the circuit court.
¶3 BACKGROUND
¶4 I. Procedural History
¶5 A brief history of this litigation is necessary to place the issues raised on appeal in the
proper context. The marriage of the parties was dissolved in 1998. See In re Marriage of
Baumgartner, 384 Ill. App. 3d 39 (2008) (Baumgartner I) (upholding the trial court’s orders
resolving postjudgment child support and related issues). A provision in their marital
settlement agreement, which was incorporated into the judgment for dissolution of marriage,
provided as follows:
“2.16 CRAIG and SUSAN shall be responsible for post high school educational
expenses for [Max] as provided by the applicable section of the Illinois Marriage and
Dissolution of Marriage Act in force when Max is ready to incur these expenses.
CRAIG shall continue to maintain the Florida Pre-Paid tuition and dorm college
account with combined deposits currently valued at $4000.00. The Parties’ obligation
for college educational expenses will be reduced by the value of this account when
Max begins his post high school education.
-2-
2.17 The Parties’ obligation in this regard shall only be conditioned upon the ability
to pay these expenses when incurred, and [Max’s] desire and ability to further his
education.”
¶6 Following his 2005 graduation from New Trier High School (New Trier), Max briefly
attended Oakton Community College (Oakton). In 2007, he was charged with and
subsequently convicted of two felonies and sentenced to prison for three years. In 2008, Craig
filed a petition seeking to terminate the parties’ obligation under the dissolution judgment to
fund Max’s post high school educational expenses. The circuit court terminated Craig’s
obligation to contribute to Max’s post high school educational expenses on the sole basis of
Max’s incarceration.
¶7 A majority of this court reversed the circuit court’s order, holding that there was no
authority in Illinois that recognized incarceration as a self-emancipating event such as
marriage or military service. See In re Marriage of Baumgartner, 393 Ill. App. 3d 297 (2009)
(Baumgartner II) (Wolfson, J., dissenting). Craig’s petition for leave to appeal to our supreme
court was granted.
¶8 On review, the supreme court affirmed our decision and remanded the case to the circuit
court. Holding that Max’s criminal activity, by itself, was not dispositive as to whether Max
was emancipated, the court noted that the record contained no evidence pertaining to Susan’s
and Craig’s care, custody, control and support of Max and whether Max voluntarily abandoned
that support. The court instructed the circuit court to consider “the extent to which Max’s
incarceration constitutes changed circumstances, warranting a modification of the dissolution
judgment for both parties.” In re Marriage of Baumgartner, 237 Ill. 2d 468, 488 (2010)
(Baumgartner III).
¶9 II. Hearing on Remand
¶ 10 On remand, the trial court held a hearing on Susan’s amended petition to enforce the
educational expenses provision of the judgment and Craig’s amended cross-petition to
terminate the parties’ obligation for those expenses. The following is a summary of the
relevant testimony.
¶ 11 A. Craig
¶ 12 In 2004, when Max was a junior at New Trier, Craig, who resided in California, wrote to
Max, Susan and Susan’s husband, Stephen Ginensky (Stephen), advising them of the
availability of the Florida prepaid college plan (the Florida plan). He reminded them that in
response to his earlier questions concerning Max’s preparation and plans for college, they had
told him that those issues were being addressed. After Craig received no response to the letter,
he sent a follow up e-mail, which included the names of and contact information for Max’s
post high school counselors. He did not receive a response to his e-mail.
¶ 13 Craig had no communication with Max after Max graduated from New Trier in 2005. Craig
obtained Max’s transcripts from his senior year at New Trier, which showed that Max
graduated at the bottom of his class. In searching the Internet, Craig learned that Max was
attending Oakton in the fall of 2005, and he obtained a transcript of Max’s grades at Oakton:
English 101–D, English 102–F, psychology–B, and sociology–F. Max’s grade-point average
was 1.00. Neither Max nor Susan requested to use the Florida plan to pay for the tuition at
-3-
Oakton, and neither of them informed Craig that Max also took classes at Oakton in 2007.
Max’s 2007 transcript from Oakton showed the following courses and grades: he repeated
English 102 and received an F, Introduction to Philosophy–D, Psychology of Abnormal
Behavior–D. His grade-point average for 2007 was 1.00.
¶ 14 In 2006 and 2007, Craig was notified by a family member that Max had been arrested. The
parties stipulated that Max was convicted of two felonies, for which he served time in prison.
¶ 15 In 2008, Craig filed his petition to terminate the parties’ obligation for Max’s college
expenses. His request for termination was based on Max’s failure to exhibit any desire or
ability to attend college and Max’s failure to communicate with him about his plans for his post
high school education. After the circuit court terminated his educational support obligation for
Max, on the advice of his attorney, Craig terminated the Florida plan account. Craig was never
informed that Max wished to use the Florida plan for college until 2010, when Susan filed her
petition to enforce the educational payment provisions of the dissolution judgment.
¶ 16 After Max was released from prison in 2009, Craig learned from the Internet that Max was
engaged to be married and had a son, Kaiden Maxwell Baumgartner, born January 5, 2010.
The parties stipulated that Kaiden was Max’s son, and the mother was Ashley Nicole Little
(Ashley). Craig maintained it would be a financial hardship if he were ordered to pay Max’s
college expenses.
¶ 17 Craig acknowledged that the educational expenses provision in the dissolution judgment
did not require Max to utilize the Florida plan or to notify Craig that he wished to use it. He did
not know what Max’s class rank was when he graduated from New Trier. The Florida plan was
fully paid for in July 2005. Craig was never required to provide the plan with Max’s address.
When Craig received information regarding the Florida plan, he forwarded it to Max.
Following Max’s graduation from New Trier, Susan, Stephen and Max moved but did not
notify Craig of their new address. The trial court observed that there was documentation that
Craig had the means to contact Susan.
¶ 18 B. Susan
¶ 19 Susan did not recall receiving Craig’s 2004 letter or the follow up e-mail he sent. After
Max graduated from New Trier, she did not keep in contact with Craig. Susan did not believe
that the Florida plan could be used for Max’s Oakton expenses, but she never contacted the
plan to confirm that it could not be used. Susan did not remember when she first notified Craig
that Max wanted to attend college. After his release from prison in January 2009, Max could
not get a job, and he needed to go back to school. Susan filed her petition to enforce the
payment of Max’s educational expenses because she wanted him to go to college.
¶ 20 Susan had been unemployed for the previous two years. Max lived with Susan and
Stephen, but Susan had no proof of any expenses for him that she paid.
¶ 21 According to Susan, Max was very immature when he attended Oakton in 2005, and his
study habits were poor. Susan talked to Max about his grades at Oakton but did not remember
what she said to him. She was aware of the Florida plan and was sure she discussed it with
Max. Susan acknowledged that Ashley lived with her while she was pregnant with Kaiden, but
she could not recall when or for how long. While Max and Ashley were “engaged,” Max told
Susan that he did not think they would marry.
-4-
¶ 22 Max had not yet applied to any four-year college or university. In 2011, he attended Rock
Valley Community College (Rock Valley), but Susan could not afford the tuition for the
summer term. The trial court noted that Craig had paid for Max to attend Rock Valley for a
semester. While at Rock Valley, Max received two A’s, a B and a C, though Susan could not
recall what courses he took. He also took classes while he was in prison. Susan believed that
Max wanted to complete a four-year degree.
¶ 23 C. Max
¶ 24 Max explained that he would like to pursue a master’s degree and then a doctorate in the
area of science. He understood he needed to obtain a baccalaureate degree first. He was
attending a two-year school to get his grade-point average up so he could be considered by a
four-year institution. At Rock Valley, he had received an A in sociology, a C in pre-calculus, a
B in student study skills, and an A in philosophy. He received A’s and B’s in the classes he
completed while in prison. Max maintained that he valued education more now than he did
when he attended Oakton.
¶ 25 While he was attending New Trier, Max was aware of the Florida plan but did not
remember discussing the plan with Susan. He did not contact Craig to ask how to use the plan.
Max did not notify Craig that he was attending Oakton. Stephen paid his tuition there; Max
was not required to reimburse him.
¶ 26 At the time of the hearing, Max was employed earning $15 per hour, which was paid to him
in cash. He intended to find another job with more earning potential but had not submitted any
applications. Max acknowledged that he did not have a driver’s license, but it did not matter
because he could not afford the insurance to drive a car. Max supported Kaiden by giving
Ashley $20 or $40 a month. Max did not intend to apply to a four-year college until he knew
how he was going to pay for it. He did look into obtaining financial aid.
¶ 27 According to Max, Ashley and he were engaged, and he had given her a ring. He
acknowledged telling Susan that he was not going to marry Ashley. Max admitted that he
repeated classes at Rock Valley that he had taken elsewhere. He did not check before he took
them to see if he could receive credit for those classes he had previously taken, rather than
repeat them. Max acknowledged that he would need to retake tests, such as the Scholastic
Aptitude Test (SAT), because his original scores were too old to submit. He planned to retake
those tests when he applied to four-year colleges.
¶ 28 On January 6, 2012, the trial court issued its written order, ruling on the parties’ respective
petitions. Based on the evidence, the court found that Max did not have the “requisite desire
and ability to further his post-secondary education,” and that he was emancipated and capable
of supporting himself.
¶ 29 The trial court granted Craig’s amended cross-petition and terminated the parties’
obligation to fund Max’s post high school education. Susan’s amended petition to enforce the
educational provisions of the dissolution judgment was denied. On January 27, 2012, Susan
filed her notice of appeal from the January 6, 2012, order. Also on January 27, 2012, Susan
filed a motion for a hearing on her previously filed petition to have Craig held in indirect
criminal contempt of court for closing the Florida plan and a motion for a hearing on her
previously filed petition for attorney fees.
-5-
¶ 30 On February 9, 2012, the trial court ordered Susan’s contempt petition stricken. The court
further ordered Susan’s petition for fees entered and continued until the resolution of her
appeal from its January 6, 2012, order. Craig’s motion for penalties and sanctions pursuant to
section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2010)) (the Code) and
Illinois Supreme Court Rule 137 (Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)) was continued for
hearing to March 22, 2012. On March 9, 2012, Susan filed a notice of appeal from the February
9, 2012, order striking her contempt petition. On March 22, 2012, the trial court denied Craig’s
motion for penalties and sanctions.
¶ 31 ANALYSIS
¶ 32 I. Jurisdiction
¶ 33 Even if the parties fail to raise the issue, a reviewing court has the duty to consider
sua sponte its jurisdiction to rule on the merits of an appeal. Revolution Portfolio, LLC v.
Beale, 341 Ill. App. 3d 1021, 1024-25 (2003). In the absence of jurisdiction, an appeal must be
dismissed. Revolution Portfolio, LLC, 341 Ill. App. 3d at 1025.
¶ 34 Pending at the time these appeals were filed was Susan’s amended petition for attorney
fees she incurred in the prior appeals to this court and the supreme court in this case. In her
jurisdictional statement, Susan stated that this court had jurisdiction pursuant to Illinois
Supreme Court Rules 301 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994)) and 303 (Ill. S. Ct. R. 303 (eff.
June 4, 2008)), because her appeals are from final orders of the trial court entered on January 6,
2012, and March 9, 2012. Generally, where the order appealed from resolves less than all of
the claims raised in the case, a finding pursuant to Illinois Supreme Court Rule 304(a) (Ill. S.
Ct. R. 304(a) (eff. Feb. 26, 2010)) is required. No Rule 304(a) finding was made in this case.
¶ 35 In In re Marriage of Demaret, 2012 IL App (1st) 111916, this court addressed the question
of “whether postdissolution petitions should be treated as new claims of the original
dissolution action, mandating a Rule 304(a) finding when fewer than all pending petitions are
resolved, or as separate actions under Rule 301, if the pending petitions are not related.”
Demaret, 2012 IL App (1st) 111916, ¶ 35. This court agreed with the Third District Appellate
Court’s holding in In re Marriage of A’Hearn, “ ‘that postdissolution proceedings are
generally new actions.’ ” Demaret, 2012 IL App (1st) 111916, ¶ 35 (quoting In re Marriage of
A’Hearn, 408 Ill. App. 3d 1091, 1097 (2011)). In Demaret, the petitioner’s appeal from the
denial of her petition to remove the minor children did not require a Rule 304(a) finding
because the respondent’s pending petition for attorney fees for defending the removal petition
was wholly unrelated to the issues presented in the removal petition. Demaret, 2012 IL App
(1st) 111916, ¶ 38; see In re Marriage of Dianovsky, 2013 IL App (1st) 121223 (distinguishing
Demaret and A’Hearn where the pending petition for rule to show cause was related to the
support orders that were the subject of the appeal).
¶ 36 Likewise, in the present case, Susan’s pending petition for fees incurred in the appeals’
process was unrelated to the determination of the parties’ obligation to provide educational
expenses for Max. We conclude that we have jurisdiction to consider these appeals.
¶ 37 II. Supreme Court Rule 369
¶ 38 Susan contends that the trial court should not have conducted any proceedings on Craig’s
amended cross-petition because he failed to comply with the notice requirement of Illinois
-6-
Supreme Court Rule 369(c) (Ill. S. Ct. R. 369(c) (eff. July 1, 1982)). Rule 369(c) provides as
follows: “When the reviewing court remands the case for a new trial or hearing and the
mandate is filed in the circuit court, the case shall be reinstated therein upon 10 days’ notice to
the adverse party.”
¶ 39 The supreme court’s mandate was filed in the circuit court of Cook County on July 1, 2010.
On August 19, 2010, Susan filed a petition for payment of Max’s college expenses pursuant to
the judgment for dissolution of marriage. On August 23, 2010, Craig’s attorney filed an
appearance and a notice of Craig’s motion to amend the judgment to be presented on
September 16, 2010, well within the 10 days’ notice requirement of Rule 369(c). However, on
September 16, 2010, Craig was granted leave to withdraw his motion to amend the judgment
and to file his cross-petition to terminate the parties’ obligation to fund Max’s college
expenses. On December 9, 2010, the circuit court granted Craig leave to file an amended
cross-petition in which, inter alia, he explained that he was not pursuing the remanded case
because Max had reached the age of 23, and to Craig’s knowledge, Max was not pursuing any
post high school education.
¶ 40 In light of Craig’s acknowledgement that he was not pursuing the remanded case, we need
not address Susan’s arguments that he failed to comply with Rule 369(c) or that proceedings
failed to comply with the supreme court’s mandate. The proceedings in this case were begun
by Susan’s August 19, 2010, petition to enforce the educational provision of the judgment for
dissolution of marriage to which Craig responded by filing a cross-petition. The trial court
obtained jurisdiction over these proceedings when Susan filed her petition. See Hynes v.
Department of Revenue, 269 Ill. App. 3d 697, 712 (1995) (the plaintiffs invoked the
jurisdiction of the circuit court by filing their complaint). The court had jurisdiction over Craig
when his attorney filed a general appearance on his behalf. See In re Marriage of Gorman, 284
Ill. App. 3d 171, 178 (1996) (personal jurisdiction over the defendant is acquired by service of
summons or by general appearance).
¶ 41 We conclude that Susan’s contentions with regard to Rule 369(c) and the jurisdiction of the
trial court to consider this case are moot in light of Craig’s abandonment of the reinstatement
of his 2008 petition and the filing of Susan’s August 19, 2010, petition for the payment of
Max’s educational expenses.
¶ 42 III. Appeal No. 1-12-0552: Educational Expenses
¶ 43 Susan contends that the trial court erred when it issued its January 6, 2012, order
terminating the parties’ obligation to provide Max with a post high school education. She
argues that the evidence was insufficient to establish that Max was emancipated. Susan further
argues that the manifest weight of the evidence established that Max had the desire and ability
to further his education.
¶ 44 A. Standard of Review
¶ 45 “A provision for payment of college expenses is in the nature of child support and is
modifiable.” Hupe v. Hupe, 305 Ill. App. 3d 118, 125 (1999). Modification of a dissolution of
marriage judgment rests in the sound discretion of the trial court; as a reviewing court, we will
not interfere with the exercise of that discretion in the absence of its abuse. In re Marriage of
Walters, 238 Ill. App. 3d 1086, 1096 (1992). An abuse of discretion will be found only where
no reasonable person would take the view adopted by the trial court. In re Marriage of
-7-
Schneider, 214 Ill. 2d 152, 173 (2005).
¶ 46 B. Discussion
¶ 47 In terminating the parties’ obligation to pay the expenses of Max’s post high school
education, the trial court found that (1) Max was emancipated and capable of supporting
himself, and (2) Max did not have the requisite desire and ability to further his post high school
education.
¶ 48 Susan contends that the evidence did not establish that Max was emancipated. She relies on
the holding of this court and affirmed by the supreme court that Max’s incarceration was not,
by itself, a self-emancipation. Baumgartner III, 237 Ill. 2d at 488; see Baumgartner II, 393 Ill.
App. 3d at 301. In determining whether a minor is emancipated by any means other than
reaching the age of majority, the supreme court identified the factors to be considered by the
trial court, including but not limited to: “whether the minor has voluntarily left the protection
and influence of the parental home, or whether the minor has otherwise moved beyond the care
and control of the custodial parent; whether the minor has assumed responsibility for his or her
own care, or whether the minor continues to need support; whether the minor, if
self-emancipated, has become dependent on his or her parents again, thereby reverting to being
unemancipated.” Baumgartner III, 237 Ill. 2d at 486. The determination depends on the
relevant facts and circumstances of each case. Baumgartner III, 237 Ill. 2d at 486.
¶ 49 At the time of the hearing, Max was 23 years old. The evidence established that since being
released from prison, Max had lived with Susan and Stephen, his stepfather. Susan was unable
to provide evidence of the expenses she paid on Max’s behalf. Max testified that since being
released from prison, he was employed earning $15 per hour, which was paid to him in cash.
He intended to find another job with more earning potential but had not submitted any
applications. Max had fathered a child, Kaiden, with Ashley, and supported Kaiden by giving
Ashley $20 or $40 a month. Although Susan testified that Max told her he did not think he
would marry Ashley, Max testified that they were engaged.
¶ 50 We agree with the trial court that the evidence in this case established that Max was not
dependent upon Susan for his support. While he lived with Susan, there was no evidence that
Max was supported financially by Susan. At the time of the hearing, Max was employed and
provided support for Kaiden. The fact that he had not obtained a driver’s license because he
could not yet afford the insurance indicates that Susan was not supporting him by providing
him with insurance and was further proof that Max was not dependent on Susan for support.
Therefore, the trial court did not abuse its discretion in finding that Max was emancipated.
¶ 51 In any event, the trial court properly terminated the parties’ educational support obligation
based on the judgment for dissolution of marriage, which conditioned their obligation “upon
the ability to pay these expenses when incurred and the child’s desire and ability to further his
education.” Based on the evidence, particularly Max’s testimony, the trial court found that
Max lacked the desire and ability to further his education. We agree.
¶ 52 After graduating from New Trier in 2005, Max attended Oakton, where his grade-point
average was 1.00. He did take classes while he was incarcerated. Following his release, he
attended Rock Valley, where he achieved better grades, due in part to his repeating classes he
had already taken. Max maintained that he wished to pursue his education at a four-year
college or university and achieve a master’s degree and doctorate in the area of science.
-8-
¶ 53 Max’s overall educational history from high school and through the junior colleges he
attended did not indicate that he would be accepted to a four-year college or university. The
evidence did not establish that Max had the ability to be accepted at a four-year college or
university since he did not apply to any four-year institutions. In any event, Max’s desire to
further his education was not borne out by the evidence. While testifying that he wished to
pursue the area of science, Max had not applied to any four-year institutions or identified the
colleges or universities to which he intended to apply. While he was aware he needed to repeat
the standardized academic tests, he had not taken them. Although Max was aware of the
Florida plan, he never contacted Craig to find out how to use the plan, and he failed to respond
to Craig’s attempts to contact him regarding the Florida plan. While he testified that he was
attempting to get his grade-point average up, he acknowledged that he had not investigated
whether he could receive credit for any of the courses which he had previously taken.
¶ 54 The evidence and the inferences from that evidence strongly support the trial court’s
determination that Max lacked the desire and ability to further his education. Since Max’s
desire and ability to further his education were criteria for the educational support provision in
the judgment for dissolution of marriage, the trial court properly exercised its discretion when
it modified the dissolution judgment by terminating the parties’ obligation to pay for Max’s
post high school educational expenses.
¶ 55 IV. Appeal No. 1-12-0779: Indirect Criminal Contempt
¶ 56 In a separate appeal, Susan contends that the trial court erred when it issued its February 9,
2012, order striking her petition for indirect criminal contempt against Craig. On February 9,
2012, the trial court, pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West
2010)) and on its own motion, ordered Susan’s contempt petition stricken. In the order, the
court found that “it previously instructed [Susan] that Indirect Criminal Contempt was an
inappropriate action to assert, and that [Susan] continued to assert the action despite this
instruction. Specifically, the court stated that because the basis for the criminal contempt was a
violation of a court order it was not criminal contempt.”
¶ 57 A. Standard of Review
¶ 58 A section 2-619.1 motion allows a litigant to file a motion to dismiss raising both pleading
defects and affirmative defenses. All well-pleaded facts are taken as true, and all reasonable
inferences from those facts will be construed in favor of the nonmoving party. Morris v.
Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009). We do not agree with the trial
court that an indirect criminal contempt petition was not a basis for Susan’s allegations against
Craig. However, our review of a court’s dismissal pursuant to section 2-619.1 of the Code is de
novo. Morris, 392 Ill. App. 3d at 402. Therefore, we are not bound by the trial court’s reasons
for its rulings.
¶ 59 B. Discussion
¶ 60 “The purpose of contempt proceedings is to maintain the dignity of the court and to enforce
its orders by punishing contemnors for disobedience.” United Transfer, Inc. v. Lorence, 2011
IL App (2d) 110041, ¶ 18. Criminal contempt sanctions are imposed where the contemnor’s
acts were in the past and cannot be rectified; indirect criminal contempt is a subcategory of
criminal contempt and occurs where the contemptuous behavior was outside of the court’s
-9-
presence. Lorence, 2011 IL App (2d) 110041, ¶ 18. To be found in indirect criminal contempt
requires “(1) the existence of a clear court order, and (2) the willful violation of that order.”
People ex rel. City of Chicago v. Le Mirage, Inc., 2013 IL App (1st) 093547-B, ¶ 53. To satisfy
the first element, the would-be contemnor must have received fair and precise notice of what
the order prohibited. Le Mirage, Inc., 2013 IL App (1st) 093547-B, ¶ 53. The standard of proof
is beyond a reasonable doubt. Lorence, 2011 IL App (2d) 110041, ¶ 18.
¶ 61 In count I of her petition, Susan alleged that on April 19, 2001, the circuit court amended
the judgment for dissolution of marriage to provide that Max would reside with Susan, rather
than Craig as provided in the 1998 dissolution judgment. Susan alleged that Craig violated the
April 19, 2001, order when he gave changes of his address to the administrators of the Florida
plan and falsely informed them that his address and telephone number was Max’s address and
telephone number. As a result, all communication about the plan, including the identification
cards to allow Max to use the plan benefits, was sent to Craig.
¶ 62 Even accepting Susan’s allegations as true, her petition fails to demonstrate the existence
of an order that formed the basis of the petition for indirect criminal contempt. Nothing in
section 2.16 or 2.17 of the 1998 dissolution judgment or the April 19, 2001, modification of the
1998 judgment required Craig to inform the Florida plan where or with whom Max was
residing, or to provide them with Max’s contact information. Craig’s only obligation with
regard to the Florida plan was to maintain it. In the absence of the existence of the order Craig
was alleged to have violated, Susan’s petition was properly dismissed. See Lorence, 2011 IL
App (2d) 110041, ¶ 19 (dismissal of the petition for indirect criminal contempt was proper
where the petition failed to demonstrate the existence of the court order alleged to have been
violated).
¶ 63 In count II, Susan alleged that Craig violated the court order that he maintain the Florida
plan by transferring the plan to his wife, Jeanine, who then liquidated the plan. Susan alleged
that, since the transfer and liquidation occurred while her motion for reconsideration of the
circuit court’s order terminating Craig’s obligation to provide educational support for Max was
pending, his obligation to continue the Florida plan was still in effect. See 735 ILCS
5/12-1203(b) (West 2010) (following the entry of a judgment, a timely motion for
reconsideration stays the enforcement of the judgment).
¶ 64 Susan alleged that Craig transferred the Florida plan to Jeanine. She failed to allege any
facts that the mere transfer of the plan to Jeanine violated the requirement that Craig maintain
the account for Max. “To support a finding of contempt, the order must be ‘so specific and
clear as to be susceptible of only one interpretation.’ [Citation.] ‘It must not only be capable of
reasonable interpretation, but that interpretation must be to the exclusion of other reasonable
interpretations; it must be unambiguous.’ ” In re Marriage of Steinberg, 302 Ill. App. 3d 845,
853 (1998) (quoting O’Leary v. Allphin, 64 Ill. 2d 500, 514 (1976), and O’Grady v. Cook
County Sheriff’s Merit Board, 204 Ill. App. 3d 258, 262 (1990)). Moreover, according to
Susan’s allegation, it was Jeanine who liquidated the plan, rendering it unavailable for Max’s
education. Susan did not seek a contempt finding against Jeanine or allege that Craig was
responsible for her conduct.
¶ 65 Even if Craig violated the stay order, Susan must demonstrate that the violation of the order
was willful. In reviewing the dismissal of a complaint we accept as true all well-pleaded facts,
but we do not accept as true conclusions unsupported by allegations of fact. Pickel v.
Springfield Stallions, Inc., 398 Ill. App. 3d 1063, 1066 (2010). In her petition, Susan alleged
- 10 -
that Craig’s violation was willful but failed to plead any facts demonstrating that Craig’s
violation of the stay order was willful.
¶ 66 Moreover, during the hearing on the parties’ petitions, Craig testified that prior to
terminating the Florida plan he consulted his tax advisor and his attorney, who advised him
that he did not need to continue the Florida plan since his obligation had been terminated. He
further testified that he did not terminate the Florida plan to defraud anyone.
¶ 67 Susan did not dispute Craig’s testimony that he sought the advice of his attorney prior to
terminating the Florida plan. In the absence of any facts supporting her allegation that Craig’s
violation was willful and in light of his testimony that he acted after seeking his attorney’s
advice, Susan’s petition failed to demonstrate a factual basis to support her conclusion that
Craig’s alleged violation of the stay order was willful. See Baumgartner I, 384 Ill. App. 3d at
63-64 (even though he owed support, Craig’s conduct prior to the filing of the contempt
petition, including disputing the amounts owed and hiring an attorney to assist him in
calculating the support amount, did not indicate that he willfully disregarded the court’s
support order).
¶ 68 We conclude that Susan’s petition to hold Craig in indirect criminal contempt failed to
demonstrate that Craig violated the court’s orders or that any violation on his part was willful.
Therefore, the striking of Susan’s petition for indirect criminal contempt was proper.
¶ 69 CONCLUSION
¶ 70 For all of the forgoing reasons, the judgment of the circuit court is affirmed.
¶ 71 Affirmed.
- 11 -