In Re Marriage of Wilde

490 N.E.2d 95, 141 Ill. App. 3d 464, 95 Ill. Dec. 622, 1986 Ill. App. LEXIS 1930
CourtAppellate Court of Illinois
DecidedFebruary 21, 1986
Docket2-84-1219
StatusPublished
Cited by17 cases

This text of 490 N.E.2d 95 (In Re Marriage of Wilde) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Wilde, 490 N.E.2d 95, 141 Ill. App. 3d 464, 95 Ill. Dec. 622, 1986 Ill. App. LEXIS 1930 (Ill. Ct. App. 1986).

Opinion

JUSTICE HOPF

delivered the opinion of the court:

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.

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Bluebook (online)
490 N.E.2d 95, 141 Ill. App. 3d 464, 95 Ill. Dec. 622, 1986 Ill. App. LEXIS 1930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-wilde-illappct-1986.