2024 IL App (2d) 220221-U No. 2-22-0221 Order filed May 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) 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 JOHN WALTER ) Appeal from the Circuit Court BIBBER, ) of Kane County. ) Petitioner-Appellant, ) ) and ) No. 14-D-948 ) ) Honorable KATHERINE HARBECK BIBBER, ) Charles E. Petersen and ) Keith A. Johnson, Respondent-Appellee. ) Judges, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Justices Hutchinson and Kennedy concurred in the judgment.
ORDER
¶1 Held: First, the supplemental bystander’s report is stricken because the parties did not stipulate to it. Second, because the bystander’s report that was properly submitted does not contain the trial court’s findings, we presume that those findings supported the denials of both petitioner’s motion to terminate or modify maintenance and his motion to reconsider.
¶2 Petitioner, John Walter Bibber, appeals from orders (1) denying his petition to terminate
or modify maintenance and (2) striking and dismissing his amended motion under section 2-1203
of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2020)) to reconsider the denial
of his petition to terminate or modify maintenance. We affirm. 2024 IL App (2d) 220221-U
¶3 I. BACKGROUND
¶4 On December 15, 2015, the trial court entered a judgment dissolving John’s marriage to
respondent, Katherine Harbeck Bibber. The judgment incorporated the parties’ marital settlement
agreement, which provided that John would pay $3700 per month to Katherine in maintenance,
which was terminable on the death of either party, Katherine’s remarriage, or Katherine’s
cohabitation with another person on a continuing conjugal basis.
¶5 On December 28, 2020, John filed his petition to terminate or modify maintenance. He
alleged that he was 73 years old and had worked as a chemist for the same employer for 35 years.
In 2019, he earned approximately $84,500 from that employment. According to the petition, “[t]he
Covid-19 pandemic *** had a disastrous effect on John’s employment.” He was unemployed from
March 19, 2020, to May 15, 2020, and was last paid by his employer on November 30, 2020, at
which time he was told that it was not certain whether the business would reopen. John earned
approximately $53,500 in 2020 from his employer, and he currently did not anticipate any future
opportunities with that employer. His only source of income in 2021 and onward was $2779 in
Social Security benefits.
¶6 The trial court, Judge Charles E. Petersen presiding, held an evidentiary hearing on the
petition on June 3, 2021. On June 9, 2021, the court entered an order continuing the matter to July
12, 2021, for a ruling on the petition. A minute order entered on July 12, 2021, indicated that the
matter was continued to August 10, 2021, for “Status of Ruling.” A written order entered on
August 10, 2021, stated, “Motion to Terminate/Modify Maintenance is denied. Oral Ruling made
this date. *** Decision to be impounded.”
¶7 John subsequently retained new counsel. On September 9, 2021, counsel filed, under
section 2-1203 of the Code, a motion to reconsider the denial of his petition to terminate or modify
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maintenance. The motion argued that the written order denying the petition did not include any
findings of fact and that the trial court “apparently” did not apply the statutory factors governing
termination or modification of maintenance to the facts of the case. On September 27, 2021, the
trial court entered an agreed order indicating that it would e-mail to the parties “copies of the
impounded findings which were verbally provided to counsel on August 10, 2021.” The order
also granted Katherine 28 days to respond to John’s motion to reconsider. On October 25, 2021,
the trial court entered another agreed order stating that the court would e-mail the impounded
findings to the parties. The order also granted Katherine leave to respond to John’s motion within
10 days of receiving the findings. On January 3, 2022, the trial court entered an order granting
Katherine 14 days to respond to John’s motion. The order stated, “The Court has indicated that it
is unable to locate any findings or documents that were impounded in this matter, ***.” The day
after this order was entered, Katherine filed a response to John’s motion. On January 20, 2022,
the trial court granted John leave to file within 21 days an amended motion to reconsider. The
order also granted Katherine 14 days to respond to John’s amended motion to reconsider.
¶8 On February 9, 2022, John moved for an extension of time to file his amended motion.
John alleged that, on January 7, 2022, the trial court “forwarded to Counsel for [John], via email,
a Reconstructed Findings of Fact and Court Decision regarding the Court [o]rder entered on
August 10, 2021[,] from the Hearing held on June 3, 2021, on newly discovered notes and
documents.” John noted that he had attached, as exhibit B, a copy of the referenced “Reconstructed
Findings of Fact and Court Decision.” Exhibit B was a document entitled “Bibber Decision,”
dated August 10, 2021.
¶9 The trial court granted the motion to extend, and, on March 23, 2022, John filed his
amended motion to reconsider. Defendant attached another copy of the Bibber Decision.
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Although in the form of a judicial decision, the Bibber Decision was neither signed by a judge nor
file-stamped by the clerk of the court. It appears in the record only as an exhibit to various
documents filed by John. Nonetheless, we will summarize its contents.
¶ 10 The Bibber Decision recited that John had lost his job in 2020 after 34 years. 1 He applied
to the Department of Employment Security (DES) for unemployment benefits but was denied due
to fraud. John claimed that the fraud “was not tied to him.” He initially made numerous calls to
challenge the denial. Having received no response, “[h]e just gave up and let it go.” He did not
seek reconsideration of the denial of benefits. According to the Bibber Decision, John’s actions
were not those “of a person who needs money and is innocent of the charge of fraud.”
¶ 11 Furthermore, the Bibber Decision recited that John claimed to rent a house from a 71-year-
old woman. John initially indicated that he paid the $1000 monthly rent by check or debit card.
However, he was unable to show those payments on his bank statements. He then claimed that he
“paid $950 [monthly] rent in cash,” but his account statements did not show withdrawals in that
amount. He did not own a car, but his “landlady” allowed him to use hers. The Bibber Decision
concluded that John was “[e]ssentially *** living [rent] free.” The Bibber Decision further found
that discrepancies in John’s testimony about his tax returns “effect[ed]” [sic] his credibility.
According to the Bibber Decision, Katherine was suffering serious medical conditions and had
“the financial and physical need for *** maintenance.” The Bibber Decision concluded that “[John
was] not credible about his income and [Katherine was] credible and in need of *** maintenance.”
¶ 12 In his amended section 2-1203 motion to reconsider, John argued that, in denying his
petition to terminate or modify maintenance, the trial court “failed to properly apply existing case
1 As noted, John stated in his petition to terminate or modify maintenance that he was with the employer for 35 years.
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law to the facts” and “failed to apply, or inappropriately applied, the statutory factors contained
within section 504(a) of the [Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS
5/504(a) (West 2018))].” According to the motion, the trial court “misconstrued [John’s]
frustration in attempting to resolve the Fraud issue with the [DES] as a lackadaisical response to
an otherwise serious issue in procuring essential Unemployment Benefits, so as to bolster his
meager Social Security Benefits in order to pay for his current Maintenance obligations towards
[Katherine].” He further argued that he was “overwhelmed” by testifying at the hearing on his
petition and became flustered while explaining his rent arrangements and living expenses. John
asserted that the trial court erred by discounting his testimony and “jump[ing] to a conclusion that
[John] *** lived ‘rent free.’ ” According to the motion, the trial court “misconstrued” aspects of
John’s tax recordkeeping as affecting his credibility and erred by failing to consider John’s
financial ability to pay maintenance. In his attached affidavit, John averred that, after the trial
court’s denial of his motion to terminate or modify maintenance, DES reconsidered its decision
and awarded John unemployment benefits.
¶ 13 Katherine filed a motion, ostensibly pursuant to section 2-615 of the Code (735 ILCS 5/2-
615 (West 2020)), to strike and dismiss John’s amended motion to reconsider. She argued that a
motion to reconsider is proper when the law has changed since the decision or there is newly
discovered evidence that existed, but was unavailable, at the time of the decision. She further
argued that John’s motion was not based on any changes in the law or newly discovered evidence.
On May 9, 2022, the trial court entered an order stating, in pertinent part:
“This matter becoming [sic] before the Court for hearing on [Katherine’s] Motion to Strike
and Dismiss [John’s] Amended Section 2-1203 Motion for Reconsideration and/or
Clarification of Order of August 10, 2021; both parties [sic] counsel being present and
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proceeding to [a] hearing on [Katherine’s] Motion; the Court having heard the arguments
of both parties and it is hereby ordered:
1. [Katherine’s] Motion to Strike and Dismiss *** is hereby granted.
2. Based upon granting the Motion to Strike and Dismiss, [John’s] *** Motion for
Reconsideration *** is hereby denied.”
John filed a timely notice of appeal.
¶ 14 The record on appeal contains no verbatim transcripts of any of the relevant proceedings.
However, we granted John a series of extensions of time to file a bystander’s report or an agreed
statement of facts. Our November 1, 2022, order provided that the “bystander’s report *** is due
in the circuit court by November 22, 2022.” On that date, John filed in the trial court a motion for
approval of a proposed bystander’s report. The attached proposed bystander’s report stated that,
on June 3, 2021, the trial court conducted an evidentiary hearing on John’s petition to terminate or
modify maintenance. The proposed bystander’s report stated that both parties testified, but it did
not describe the substance of the testimony. According to the proposed bystander’s report, on July
12, 2021, “the court made certain oral findings of law and fact before both counsels, without either
litigant being present.” The proposed bystander’s report did not describe the substance of the trial
court’s findings. Finally, the proposed bystander’s report indicated that Katherine’s motion to
strike and dismiss John’s amended motion to reconsider was heard on May 9, 2022. According to
the proposed bystander’s report, the trial court found that the reversal of the denial of John’s
unemployment benefits was not newly discovered evidence and that John failed to set forth “any
allegations that would allow his [amended] motion to reconsider to proceed.”
¶ 15 John’s motion for approval of the proposed bystander’s report claimed that Katherine’s
attorney approved the proposed bystander’s report by e-mail. John attached a copy of that e-mail,
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in which Katherine’s attorney stated, “Although there are significantly more facts relevant to the
matters that were pending with the Court, what you wrote *** was accurate.” John noticed the
motion for a hearing on December 8, 2022.
¶ 16 However, when John filed his motion to approve the proposed bystander’s report, Judge
Petersen had been reassigned from the Family Law division to the Traffic division. Judge Keith
A. Johnson was assigned to this case on November 28, 2022. Neither the parties nor their counsel
appeared at the hearing on the motion to approve the proposed bystander’s report. John—aware
that Judge Petersen no longer had the case but evidently unaware that Judge Johnson now had it—
asked this court on December 19, 2022, for another extension of time to file the bystander’s report,
claiming he needed to ask Judge Petersen how to proceed now that he had been reassigned. We
entered an order stating that “the circuit [court] clerk shall submit the bystander’s report (if
properly certified) *** as a supplement to the record by January 26, 2023.” On December 19,
2022, Judge Johnson sent an e-mail to counsel for both parties, explaining that he had been
assigned to the case and requesting confirmation that the parties agreed to the proposed bystander’s
report. John’s attorney replied to the e-mail, but Katherine’s attorney did not. On December 21,
2022, Judge Johnson approved the bystander’s report.
¶ 17 On December 28, 2022, John noticed his motion to approve the bystander’s report for a
hearing before Judge Johnson on January 18, 2023. (Presumably, John was unaware that Judge
Johnson had already approved the proposed bystander’s report.) On January 18, 2023, Judge
Johnson granted Katherine leave to file a motion to supplement the bystander’s report. Katherine
filed her motion to supplement, and John filed a response, noting that Katherine had failed to
timely file proposed amendments to his proposed bystander’s report as required under Illinois
Supreme Court Rule 323(c) (eff. July 1, 2017). On March 24, 2023, Judge Johnson granted
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Katherine’s motion and approved Katherine’s supplemental bystander’s report. Judge Johnson
reasoned, in part, that John had not complied with Rule 323(c), because he did not present his
proposed bystander’s report within the timeframe allowed by that rule. (Judge Johnson apparently
overlooked that we granted John a series of extensions of time to present the bystander’s report.)
Judge Johnson concluded that “[f]airness and the interests of justice” required that he either
(1) vacate the bystander’s report and begin the approval process anew or (2) approve the
supplemental bystander’s report. John acceded to the second option.
¶ 18 John subsequently moved to file a supplemental record containing, inter alia, both the
bystander’s report and the supplemental bystander’s report. We granted the motion.
¶ 19 II. ANALYSIS
¶ 20 John argues on appeal that the trial court erred by (1) denying his petition to terminate or
modify maintenance, (2) granting Katherine’s motion to strike his amended motion to reconsider
the denial of the petition, and (3) approving Katherine’s supplemental bystander’s report.
¶ 21 We first consider whether the trial court erred in approving the supplemental bystander’s
report. Rule 323(c) provides, in pertinent part:
“If no verbatim transcript of the evidence of proceedings is obtainable the appellant may
prepare a proposed report of proceedings from the best available sources, including
recollection. *** The proposed report shall be served on all parties within 28 days after
the notice of appeal is filed. Within 14 days after service of the proposed report of
proceedings, any other party may serve proposed amendments or an alternative proposed
report of proceedings. Within 7 days thereafter, the appellant shall, upon notice, present
the proposed report or reports and any proposed amendments to the trial court for
settlement and approval. The court, holding hearings if necessary, shall promptly settle,
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certify, and order filed an accurate report of proceedings. Absent stipulation, only the
report of proceedings so certified shall be included in the record on appeal.” Ill. S. Ct. R.
323(c) (eff. July 1, 2017).
¶ 22 Contrary to the trial court’s finding, John adhered to this procedure. Katherine, however,
did not. The record shows that John timely served Katherine with the proposed bystander’s report
and the motion to approve it. However, the record does not show that Katherine availed herself of
the opportunity to serve John with proposed amendments or an alternative bystander’s report.
John’s attorney evidently misconstrued the e-mail from Katherine’s attorney as signifying her
approval of the proposed bystander’s report.2 Yet, when John moved for approval of the
bystander’s report based on that e-mail, Katherine did not object. We cannot agree with the trial
court that this process was unfair to Katherine.
¶ 23 Our supreme court rules make no provision for submission of a supplemental bystander’s
report, and we are unaware of any authority permitting submission of a supplemental bystander’s
report except by stipulation of the parties. See In re Parentage of K.E.B., 2014 IL App (2d)
131332, ¶ 14 n.1. John agreed to approve the supplemental bystander’s report only because the
trial court indicated that, if John declined, the court would vacate its approval of John’s proposed
bystander’s report. The trial court erred in forcing John to choose between those options. The
record shows that, when the trial court entered its March 24, 2023, order imposing that choice,
John had already served Katherine with his proposed bystander’s report and the trial court had
2 As noted, Katherine’s attorney stated, “Although there are significantly more facts
relevant to the matters that were pending with the Court, what you wrote *** was accurate.” We
cannot construe this as an unequivocal acceptance of the proposed bystander’s report.
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already approved the report. Moreover, if the circuit clerk had complied with our orders, John’s
report would have been filed with this court before March 24, 2023. The trial court, having already
acted without authority in disrupting the schedule for filing the bystander’s report in this court,
threatened to disrupt it further by starting the approval process anew. Under these circumstances,
we cannot regard John’s choice to accept the supplemental bystander’s report as a stipulation to it.
Therefore, we strike the supplemental bystander’s report.
¶ 24 We next consider whether the trial court erred in denying John’s petition to terminate or
modify maintenance. Termination or modification of maintenance is governed by section 510 of
the Act (750 ILCS 5/510 (West 2018)). Section 510(a-5) (id. § 510(a-5)) provides, in pertinent
part:
“ (a-5)An order for maintenance may be modified or terminated only upon a
showing of a substantial change in circumstances. *** In all such proceedings, as well as
in proceedings in which maintenance is being reviewed, the court shall consider the
applicable factors set forth in subsection (a) of Section 504 and the following factors:
(1) any change in the employment status of either party and whether the
change has been made in good faith;
(2) the efforts, if any, made by the party receiving maintenance to become
self-supporting, and the reasonableness of the efforts where they are appropriate;
(3) any impairment of the present and future earning capacity of either
party;
(4) the tax consequences of the maintenance payments upon the respective
economic circumstances of the parties;
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(5) the duration of the maintenance payments previously paid (and
remaining to be paid) relative to the length of the marriage;
(6) the property, including retirement benefits, awarded to each party under
the judgment of dissolution of marriage, judgment of legal separation, or judgment
of declaration of invalidity of marriage and the present status of the property;
(7) the increase or decrease in each party's income since the prior judgment
or order from which a review, modification, or termination is being sought;
(8) the property acquired and currently owned by each party after the entry
of the judgment of dissolution of marriage, judgment of legal separation, or
judgment of declaration of invalidity of marriage; and
(9) any other factor that the court expressly finds to be just and equitable.”
The factors under section 504(a) of the Act (id. § 504(a)) include, inter alia, the income, property,
and needs of each party; the realistic earning capacity of each party; any impairment of the earning
capacity of the party seeking maintenance due to that party devoting time to domestic duties during
the marriage; the time needed to enable the party seeking maintenance to acquire appropriate
education, training, and employment; the standard of living during the marriage; the age, health,
occupation, sources of income, and the needs of each party; all sources of private and public
income including, without limitation, disability and retirement income; the tax consequences of
each party; the duration of the marriage; contributions by the party seeking maintenance to the
education and training of the other spouse; any valid agreement between the parties; and any other
factor that the court finds to be just and equitable.
¶ 25 We have observed that “[a] substantial change in circumstances means that either the needs
of the receiving spouse have changed or the ability of the other spouse to pay has changed.” In re
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Marriage of Osseck, 2021 IL App (2d) 200268, ¶ 47. A substantial change of circumstances, in
itself, does not require modification or termination of maintenance. Id. ¶ 48. Rather, a finding of
a substantial change in circumstances is merely a prelude to consideration of the factors outlined
in sections 504(a) and 510(a-5). See id.
¶ 26 Section 510(c-5) of the Act (750 ILCS 5/510(c-5) (West 2018)) provides: “In an
adjudicated case, the court shall make specific factual findings as to the reason for the modification
as well as the amount, nature, and duration of the modified maintenance award.” The trial court’s
determination on whether to terminate or modify maintenance will not be reversed on appeal
absent an abuse of discretion. In re Marriage of Burdess, 2020 IL App (3d) 190342, ¶ 16.
¶ 27 John argues that the trial court failed to apply the factors outlined in sections 504(a) and
510(a-5). John’s argument appears based on the absence of written findings in the trial court’s
August 10, 2021, order. Indeed, section 510(c-5) requires the trial court to make specific factual
findings, but John cites no authority that those findings must be in writing. John’s argument that
the trial court failed to make the requisite findings is otherwise unsupported by the record. Indeed,
John’s bystander’s report states that, at the hearing on his petition to terminate or modify
maintenance, the trial court “made certain oral findings of law and fact[.]” Indeed, the report does
not supply any detail regarding the trial court’s findings, but that omission must be held against
John. It is well established that the appellant
“has the burden to present a sufficiently complete record of the proceedings at trial to
support a claim of error, and in the absence of such a record on appeal, it will be presumed
that the order entered by the trial court was in conformity with law and had a sufficient
factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
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In applying this rule, we assume that a bystander’s report is materially complete on the points it
addresses. People v. Majka, 365 Ill. App. 3d 362, 368 (2006). However, John’s bystander’s report
cannot be considered complete concerning the trial court’s findings, given that it contains no
description of those findings. Because there is no dispute that the trial court made findings at the
hearing on the petition, we must assume that those findings sufficiently supported its decision.
¶ 28 Finally, we consider whether the trial court erred by granting Katherine’s motion to strike
and dismiss John’s section 2-1203 motion to reconsider. We reject this argument for the same
reasons we have rejected John’s challenge to the denial of his petition to terminate or modify
maintenance.
¶ 29 We must first recharacterize the disposition of Katherine’s motion. She filed her motion
under section 2-615(a) of the Code (735 ILCS 5/2-615(a) (West 2020)), which provides that “[a]ll
objections to pleadings shall be raised by motion.” (Emphasis added.) As we have explained, “[a]
pleading *** consists of a party’s formal allegations of his claims or defenses.” In re Marriage of
Sutherland, 251 Ill. App. 3d 411, 413 (1993). In contrast, “[a] motion is an application to the court
for a ruling or an order in a pending case.” Id. John’s petition to terminate or modify maintenance
was a pleading. Accord id. at 414 (petition to increase child support was a pleading). On the other
hand, John’s motion to reconsider under section 2-1203 was a motion. Accord id. (section 2-1203
motion to reconsider dismissal of petition for increase of child support was a motion). Because
section 2-615 applies only to pleadings, it is improper to strike a motion under section 2-615. Id.
When a trial court grants a section 2-615 motion to strike a section 2-1203 motion to reconsider,
we treat the court’s order as denying the motion rather than striking. Id. “The purpose of a motion
to reconsider is to bring to a court’s attention (1) newly discovered evidence, (2) changes in the
law, or (3) errors in the court’s previous application of existing law.” Liceaga v. Baez, 2019 IL
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App (1st) 181170, ¶ 25. We typically review a ruling on a motion to reconsider for an abuse of
discretion. See G.M. Sign, Inc. v. Pennswood Partners, Inc., 2015 IL App (2d) 121276-B, ¶ 27
(recognizing that a ruling on a motion to reconsider the entry of summary judgment is reviewed
de novo).
¶ 30 In his amended motion to reconsider, John contended that the trial court “misconstrued
[his] frustration in attempting to resolve the Fraud issue with the [DES] as a lackadaisical response
to an otherwise serious issue in procuring essential Unemployment Benefits, so as to bolster his
meager Social Security Benefits in order to pay for his current [m]aintenance obligations[.]” John
also contended that, although he was highly educated, “he simply was overwhelmed by testifying
in person in open [c]ourt [at the hearing on the petition to terminate or modify maintenance]” and
became flustered when trying to explain his monthly expenses, including rent. According to John,
the trial court “simply jumped to conclusions” in finding that John’s testimony was not credible.
John also argued that the trial court improperly concluded that John’s lack of certainty as to his
tax recordkeeping undermined his credibility. The problem with addressing these arguments from
our vantage point is that, given the condition of the record, we cannot be sure the trial court even
made the challenged findings. There is no dispute that the trial court made some findings in
denying John’s petition to terminate or modify maintenance; we can only presume that those
findings were sufficient to support the trial court’s judgment.
¶ 31 John also argues that the trial court failed to consider whether Katherine needed the
maintenance ordered in the judgment of dissolution and how much maintenance John could afford
to pay. According to John, the trial court did not consider the factors of section 504(a) of the Act.
Again, based on the condition of the record, we must presume that the trial court made findings on
all pertinent factors and that those findings were sufficient.
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¶ 32 John further contends that his amended motion to reconsider was based on newly
discovered evidence, to wit, that the DES ultimately reversed its decision that John’s claim for
benefits was fraudulent. We have held that, for purposes of a motion to reconsider, “newly
discovered evidence” means “evidence [that] was in existence at the time of trial or pertains to
facts in existence at the time of trial.” (Emphasis in original.) In re Marriage of Wolff, 355 Ill.
App. 3d 403, 410 (2005) (citing United States v. McGaughey, 977 F.2d 1067, 1075 (7th Cir.
1992)). Here, the reversal of the finding of fraud pertains to a fact in existence at the time of the
hearing on John’s petition to terminate or modify maintenance, and the trial court erred in
concluding that it was not newly discovered evidence. Nonetheless, absent a sufficient record of
the proceedings on John’s petition to terminate or modify maintenance, it is impossible to
determine whether that evidence could have had any appreciable effect on the outcome of those
proceedings. Consequently, it is impossible to determine whether the evidence would have
affected the trial court’s ruling on the amended motion to reconsider. Accordingly, John has failed
to establish that denying the amended motion to reconsider was an abuse of discretion.
¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 35 Affirmed.
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