In re Marriage of Kellerman

2019 IL App (2d) 190219-U

• Court: Appellate Court of Illinois
• Decided: November 15, 2019
• Docket: 2-19-0219
• Status: Unpublished

Opinion

2019 IL App (2d) 190219-U No. 2-19-0219 Order filed November 15, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court TAMI R. KELLERMAN, ) of Winnebago County. ) Petitioner-Appellee, ) ) v. ) No. 12-D-1187 ) MICHAEL B. KELLERMAN, ) Honorable ) Gwyn Gulley, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment.

ORDER

¶1 Held: (1) The trial court properly denied respondent’s petition to hold petitioner in civil contempt, as he did not seek compliance with any order; (2) the trial court did not deny respondent due process by suspending oral arguments and ordering written ones; (3) the trial court did not abuse its discretion by ordering respondent to pay 70% of a child’s educational expenses, as the record did not show that the court understated petitioner’s income, which was substantially below respondent’s.

¶2 On January 9, 2015, the circuit court of Winnebago County entered a judgment dissolving

the marriage of Tami R. Kellerman and Michael B. Kellerman. Tami and Michael had three

children: Jacob (born December 31, 1996), Noah (born August 14, 1999), and Layla (born July 5,

2006). On June 26, 2018, Tami filed a petition for educational expenses. The petition does not 2019 IL App (2d) 190219-U

appear to have been included in the record. However, we are able to glean from the record that

Tami sought to hold Michael responsible for a portion of Noah’s college expenses. In connection

with the proceedings on Tami’s petition, Michael filed a petition to hold Tami in indirect civil

contempt. The trial court entered orders: (1) granting Tami’s petition for educational expenses

and ordering Michael to pay 70% of Noah’s college costs and (2) denying Michael’s petition to

hold Tami in indirect civil contempt. Michael appeals pro se. We affirm.

¶3 I. BACKGROUND

¶4 At the hearing on Tami’s petition, which took place on August 8, 2018, the parties supplied

the trial court with their financial affidavits. Although it appears that Tami’s affidavit is not part

of the record on appeal, Michael made reference to its contents during the hearing, asserting that

it did not accurately reflect her income. He stated that her pay stubs showed that she was paid

$1944 every two weeks, which equaled $42,012 per year. Michael further stated that Tami’s

affidavit did not include, as income, $1240 in monthly child support payments that she received

from him. Michael also made reference to a different financial affidavit from Tami, which was

dated October 17, 2017. He noted that that affidavit listed “monthly minor dependent expenses”

in the total amount of $749 for both Noah and Layla. Michael further noted that the same amount

appeared on her most recent affidavit, even though Noah was no longer a minor. Michael argued

that the monthly minor dependent expenses should therefore have been reduced by at least 50%.

¶5 Michael contended that Tami’s affidavit omitted $1400 to $1500 that she received, or

should have received, from her live-in boyfriend. 1 In addition, Michael maintained that Jacob,

1 Michael stated that, at a prior hearing, Tami admitted that she received $1000 per month.

Tami stated, “I have never seen any kind of transcript that says that I *** am receiving $1,000.

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who lived with Tami, was an employed adult and was able to contribute $600 to $700 as rent and

for payment of his share of household expenses. Michael maintained that those amounts should

be treated as income. He contended that when Tami’s monthly income and expenses were properly

calculated she had a positive cash flow of $1700.

¶6 Michael’s financial affidavit, which was dated July 20, 2018, showed (1) a monthly gross

income of $13,844; (2) deductions totaling $7130 for withheld taxes, payroll taxes, and insurance

premiums; (3) the $1240 in child support; (4) $7186 in living expenses; and (5) monthly payments

of $100 for credit card debt. According to the affidavit, Michael had a negative cash flow of $572.

¶7 The trial court ruled that the parties would be responsible for college expenses totaling

$12,471. With respect to the parties’ respective financial positions, the trial court made the

following findings:

“[Michael] provided check stubs which showed year-to-date annual income of

$164,696.89. He also showed his expenses pursuant to his financial affidavit. There is a

contribution to retirement of $1,583, housecleaning 105, repairs 285, entertainment, 150,

gifts 130, donations $800, vacation 170, professional fees 380 for a total of $3,603. His

financial affidavit indicated that he had a deficit of $572 which I find hard to believe

considering his income, so at this point, I also looked at [Tami’s] financial affidavit and

her earnings were $50,544 plus child support in the amount of *** $1,240 a month. She

had a deficit of $3,260. Her discretionary spending was a lot less; so weighing the two it

appears that [Michael] was in a position to pay significantly more towards the educational

*** I have never said to this Court that I receive $1,000 from him.”

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expenses. I’m going to allocate it at 70/30 so that would be $8,729 for [Michael] and

$3,741 for [Tami] ***.”

In a colloquy that occurred after the trial court announced its ruling, Michael asked whether the

court “include[d] the thousand dollars [Tami] gets from her boyfriend.” The trial court replied,

“Yes, I did.”

¶8 Michael moved to reconsider the order allocating college expenses. With respect to the

question of whether Tami received any money from her boyfriend, Michael noted that, at a hearing

held on June 16, 2015, Tami’s attorney stated that Tami’s boyfriend “does contribute a 1,000 a

month to the rent.” Michael also filed a petition to hold Tami in indirect civil contempt on the

basis that her financial affidavit falsely omitted the $1000 per month that she received from her

boyfriend and that she had lied in court when she denied receiving the money. The trial court held

a hearing on the motion to reconsider, but suspended the hearing before the parties had completed

their arguments. The court instructed the parties to prepare written arguments. The court

subsequently denied the motion to reconsider and the petition to hold Tami in contempt. This

appeal followed.

¶9 II. ANALYSIS

¶ 10 Michael initially argues that the trial court erred in refusing to hold Tami in contempt for

omitting from her financial affidavit the payments she purportedly received from her live-in

boyfriend. Michael also contends that Tami should have been held in contempt for falsely stating

in court that she had not previously told the court that she received money from her boyfriend.

The argument is meritless. Michael sought to have Tami held in civil contempt. “A civil contempt

charge is generally brought to compel compliance with a court order.” Windy City Limousine Co.

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LLC v. Milazzo, 2018 IL App (1st) 162827, ¶ 38. Here, there was no order with which to compel

compliance. Thus, Michael’s petition was properly denied.

¶ 11 Michael next contends that he was deprived of due process of law when the trial court

suspended the oral argument on his motion to reconsider and ordered the parties to submit written

arguments. The argument is likewise meritless. “Requirements of due process are met by

conducting an orderly proceeding in which a party receives adequate notice and an opportunity to

be heard.” Reichert v. Court of Claims of State of Illinois, 203 Ill. 2d 257, 261 (2003). The

opportunity to be heard does not necessarily entail the right to an oral argument. As the United

States Supreme Court has noted:

“[D]ue process of law has never been a term of fixed and invariable content. This is as true

with reference to oral argument as with respect to other elements of procedural due process.

For this Court has held in some situations that such argument is essential to a fair hearing,

[citations], in others that argument submitted in writing is sufficient. [Citations.]

*** [T]he right of oral argument as a matter of procedural due process varies from

case to case in accordance with differing circumstances, as do other procedural regulations.

Certainly the Constitution does not require oral argument in all cases where only

insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.”

Federal Communications Commission v. WJR, The Goodwill Station, Inc., 337 U.S. 265,

275-76 (1949).

The issues raised in Michael’s motion to reconsider were not particularly complex and the

pertinent facts were matters of record. Under the circumstances, between the oral and written

arguments that were presented, Michael had an ample opportunity to be heard.

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¶ 12 Finally, we consider Michael’s argument that the trial court erred by ordering him to pay

70% of Noah’s educational expenses. Michael contends that the court’s decision was against the

manifest weight of the evidence. According to Michael, the decision was based on Tami’s false

assertion that she received no support from her live-in boyfriend. However, as noted, in response

to a query from Michael, the trial court made clear it had included the $1000 in its determination

of her financial situation.

¶ 13 According to Michael, the financial affidavit that Tami submitted to the trial court at the

August 8, 2018, hearing indicated that her monthly expenses exceeded her income by $3260. In

essence, Michael reasons that, because the trial court recited the same figure, it did not make any

adjustments to the income and expenses itemized on the affidavit. The argument assumes that,

when the trial court remarked that Tami “had a deficit of $3,260,” the court was stating that that

amount was the bottom line of its own cash flow analysis. However, the trial court might simply

have been pointing out that $3260 was the amount that Tami reported in her affidavit as negative

cash flow. Although the trial court could have been clearer on this point, the remark does not

indicate that the court adopted that figure.

¶ 14 Michael further contends that:

“[T]he preponderance of the evidence shows that [Tami’s] actual and available income

from her own salary at her job, the $1,240 per month child support she receives from

[Michael], the reasonable financial contribution to house rent and utilities from her ***

live in boyfriend, the reasonable financial contribution to house rent and utilities from her

22 year old live in son who has a full-time job is enough total income to cover household

and expenses for herself and the parties’s [sic] 12 year old daughter while being financially

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able to contribute 50 percent of the parental share of college expense to the parties [sic]

college son.”

¶ 15 We disagree. The record does not show that Tami reported her salary inaccurately.

Moreover, Michael cites no authority for imputing income to a party who allows an adult child to

reside in his or her home rent-free. The failure to cite authority to support legal arguments results

in forfeiture of the arguments. Midfirst Bank v. Abney, 365 Ill. App. 3d 636, 650 (2006). Even if

Tami’s $1240 in monthly child support and $1000 in monthly payments from her boyfriend are

added back to the negative cash flow figure ($3620) set forth in her financial affidavit, she would

still be left with negative cash flow of $1380 per month.

¶ 16 We note that “[a] trial court’s decision to award educational expenses will not be reversed

absent an abuse of discretion.” (Internal quotation marks omitted.) In re Marriage of Deike, 381

Ill. App. 3d 620, 627 (2008). In light of the disparity in the parties’ incomes, Tami’s negative cash

flow, and the trial court’s finding—unchallenged in this appeal—that Michael’s discretionary

spending substantially exceeded Tami’s, we cannot say that the trial court’s decision was an abuse

of discretion.

¶ 17 III. CONCLUSION

¶ 18 For the foregoing reasons, the judgment of the circuit court of Winnebago County is

affirmed.

¶ 19 Affirmed.

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