Rice v. Meneely

2023 IL App (5th) 220650-U

• Court: Appellate Court of Illinois
• Decided: October 26, 2023
• Docket: 5-22-0650
• Status: Unpublished

Opinion

NOTICE 2023 IL App (5th) 220650-U NOTICE Decision filed 10/26/23. The This order was filed under text of this decision may be NO. 5-22-0650 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

LEQOINNE RICE, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Champaign County. ) v. ) No. 06-F-153 ) TINA MENEELY, formerly Tina Eppich, ) Honorable ) Ramona M. Sullivan, Respondent-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Moore and Vaughan concurred in the judgment.

ORDER

¶1 Held: The order of the circuit court of Champaign County is affirmed where the respondent waived her right to strict compliance of the agreed order of March 13, 2020.

¶2 This is a direct appeal from the circuit court of Champaign County. The respondent,

Tina Meneely, appeals the trial court’s finding regarding her express waiver of strict

compliance and related findings regarding default, ambiguity, and attorney fees. For the

reasons that follow, we affirm.

1 ¶3 I. BACKGROUND

¶4 On June 5, 2006, the petitioner, LeQoinne Rice, voluntarily acknowledged and was

found to be the birth father of the minor. On October 6, 2006, a uniform order for support

was entered by the trial court. On April 13, 2009, a petition for adjudication of indirect

civil contempt was filed against the petitioner by the Illinois Department of Healthcare and

Family Services (DHFS). On July 15, 2009, the court entered an order on the petition

finding that the petitioner’s child support arrearage was $8681.24 as of June 14, 2009.

Several subsequent hearings were held on the matter. On February 20, 2013, an agreed

fifth modified purge order after adjudication of indirect civil contempt was filed, and on

May 8, 2013, the court found that the petitioner had purged his contempt.

¶5 On June 30, 2015, the petitioner filed a petition to modify child support. On

December 7, 2016, the respondent filed a petition for adjudication of civil contempt

alleging that the petitioner owed $53,597.78 in arrears. The court permitted the respondent

to amend her petition on contempt and allowed the petition to discover assets filed by the

respondent.

¶6 On March 11, 2019, the respondent filed a motion for a finding of indirect civil

contempt: child support. On October 21, 2019, she also filed a motion for a finding of

indirect civil contempt: fraudulent financial affidavit and failure to disclose income. On

March 13, 2020, the trial court entered an agreed order, vacating two previous hearings.

The agreed order found that, as of February 25, 2020, the petitioner’s total arrearage was

$83,810 and $26,541.62 in interest. The agreed order stated that, so long as the petitioner

paid $22,000 toward the arrearage by March 20, 2020, and paid $1500 per month toward 2 the remaining balance of the arrearage thereafter starting April 2020, the arrearage would

be reduced to the amount of $43,000. However, according to the language of paragraph C,

if the petitioner failed to make his monthly payments or the $22,000 payment, the arrearage

would automatically revert back to the original amount.

¶7 On March 16, 2020, the Governor of Illinois issued an executive order essentially

shutting down restaurants and bars and the petitioner was laid off. The petitioner failed to

make a payment of $22,000 on March 20, 2020, as per the agreed order. The trial court

noted that by March 21, 2020, both parties knew that it would be actually impossible for

the petitioner to strictly comply with the agreed order having already missed the payment.

On March 23, 2020, the petitioner’s wife emailed the petitioner’s counsel to inform her

that he missed the payment deadline due to the COVID-19 lockdown. Petitioner’s counsel

responded “no problem” and the petitioner could have but did not file a motion to vacate

or reconsider the agreed order. All of the attorneys who negotiated, drafted, and approved

the agreed order participated in emails on March 23, 2020, regarding the past-due lump

sum. By March 23, 2020, well within 30 days of the entry of the agreed order, it was

known to each party and counsel representing each party that it would be impossible for

the petitioner to strictly comply with the agreed order.

¶8 The respondent accepted the petitioner’s check for $20,000, and the check cleared

by March 26, 2020. The agreed order required the petitioner to make monthly payments

of $1500 beginning in April 2020, which he failed to do, paying the lesser amount of $282

that month. On May 4, 2020, emails between the petitioner’s and the respondent’s counsel

explained that they “understand the disruptions of the COVID-19 crisis” and that 3 “obviously, we need to be patient due to the crisis.” While the petitioner did not make

monthly payments of $1500, he did make regular and substantial payments each month.

The trial court calculated that, had the petitioner paid according to the agreed order

schedule, he would have paid $53,500 by the end of December 2021. His actual payments

by December 2021 totaled $57,010.83. The agreed order provided that the only exception

to strict compliance was an “exigent circumstance.” The petitioner did not experience a

medical condition that met the parties’ definition of exigent circumstance and did not file

a notice of exigent circumstances. Within 10 days of the entry of the agreed order, all

parties and counsel were aware that the petitioner had lost his job and was receiving

unemployment, all parties were aware of the extended “stay at home” orders, and all parties

were aware that the petitioner had already violated the terms of the agreed order. Although

the petitioner failed to strictly comply with the terms of the agreed order, the court noted

that the respondent accepted the petitioner’s payments, acknowledged the COVID-19

crisis, acknowledged the issues that needed to be corrected in the agreed order, and offered

to be patient.

¶9 On March 10, 2021, the respondent filed a motion for contempt sanctions: failure to

comply with agreed order. On April 29, 2021, DHFS filed a motion for aid and direction.

On April 30, 2021, the trial court held a hearing on the respondent’s motion for contempt

sanctions. The parties agreed that a $20,000 payment had been made by the petitioner

directly to the respondent. On August 17, 2021, the court held a hearing on the

respondent’s motion for contempt sanctions and the motion to strike response. After

4 hearing argument, the court denied the motion to strike and took the motion for contempt

sanctions under advisement. On August 19, 2021, the court entered an order of abatement.

¶ 10 On August 23, 2021, the trial court entered an opinion and order on the motion for

contempt sanctions. The court found that the terms of the agreed order entered into on

March 13, 2020, were ambiguous and internally inconsistent. The court noted that,

although the petitioner did not strictly comply with the terms of the agreed order, he did

make a payment of $20,000 on March 25, 2020, and had made regular and substantial

payments each month thereafter. The court also noted that, while the COVID-19 pandemic

caused the petitioner to lose his job, the petitioner never filed a notice of exigent

circumstances as required by the terms of the agreed order. Lastly, the court noted that

according to DHFS records the petitioner only owed $46,000 during the relevant period

but had paid $51,008.04 during said period. The court awarded reasonable attorney fees

to the respondent because she incurred legal fees in bringing the matter back to court where

the petitioner failed to file his notice of exigent circumstances to address his inability to

strictly comply with the payment schedule. The court otherwise denied the motion for

contempt sanctions because the terms of the agreed order were ambiguous, because the

global pandemic affected the petitioner’s ability to strictly comply with the payment

schedule, and because the petitioner appeared to be ahead of the payment schedule at that

time.

¶ 11 On September 17, 2021, the respondent filed a motion to reconsider her motion for

sanctions. On November 3, 2021, the trial court held a hearing on the respondent’s motion

to reconsider. The motion to reconsider was allowed; the August 23, 2021, order was 5 vacated; the court reinstated the respondent’s March 10, 2021, motion for contempt

sanctions: failure to comply with agreed order; and the cause was continued.

¶ 12 On May 18, 2022, the trial court held a hearing on the motion for contempt sanctions

and the parties were given time to file written arguments. On September 2, 2022, the trial

court entered an order providing aid and direction regarding the March 2020 agreed order.

The court noted that, because the agreed order was poorly drafted, the parties provided

communications to explain the intent of the negotiations. According to the

communications, the respondent agreed to reduce the balance owed in exchange for an

immediate, substantial payment, full payment of the balance within 28 months, and

consistent payments until the balance was paid in full. The parties signed the agreed order

on March 9, 2020.

¶ 13 The trial court iterated that a party to a contract may waive, by express agreement

or by its course of conduct, its legal right to strict performance of the terms of a contract.

The court found that the respondent waived the right to demand strict compliance by

expressly acknowledging that the COVID-19 crisis was a reason to be patient and lulling

the petitioner into believing that the agreed order was still in place even though he missed

the March 20, 2020, deadline, he missed the April 2020 payment deadline, and his

payments were less than the $1500 per the agreed order for six additional months in 2020.

The court also found that despite the language of paragraph C in the agreed order, the

conduct of the parties demonstrated that paragraph C was not essential to the agreement

and the respondent therefore waived her right to demand strict compliance and trigger the

consequences of paragraph C. 6 ¶ 14 The trial court found that the parties agreed to settle the entire financial obligation

for the sum of $65,000, provided the petitioner paid a lump sum of $22,000 to the

respondent by March 20, 2020, and $1500 per month toward the remaining balance

beginning on April 20, 2020, until paid in full. The parties further agreed that the arrearage

balance would carry interest at a rate of 4% per year until the balance was paid in full, but

the remaining balance of the accumulated interest created by the terms of the agreed order

would be waived once the petitioner paid the principal balance in full if the petitioner

complied with the terms of the agreed order. The court found that the petitioner was not

entitled to a waiver of the balance of the accumulated interest because he had not fully

complied with the terms of the order and compliance was required to obtain that benefit.

Lastly, the court found that both parties had voluntarily incurred substantial attorney fees,

which they had chosen to do since 2006.

¶ 15 The trial court therefore ordered that the motion for contempt sanctions was denied.

The court specifically found that, as of February 25, 2020, the petitioner’s arrearage was

$62,400 pursuant to the parties’ negotiations; at the time of the parties’ agreement, the

petitioner still owed current support payments for March 2020, April 2020, and May 2020

totaling another $2600; and the arrearage balance carried interest at the rate of 4% per year

until paid in full. The court ordered each party to pay their own attorney fees. The

respondent appeals.

¶ 16 II. ANALYSIS

¶ 17 There are four issues raised on appeal. First, whether the respondent waived her

right to strict performance of the trial court’s March 2020 order. Second, whether the court 7 erred in finding that the petitioner was not in default of the March 2020 agreed order.

Third, as an alternative argument, that the court should have found the agreed order void

as its terms were ambiguous. Lastly, the court should have awarded reasonable attorney

fees to the respondent.

¶ 18 The parties disagree as to the standard of review for these issues. The respondent

argues our review is de novo, while the petitioner argues we should use a manifest weight

of the evidence standard. Regardless, our judgment remains the same under either standard

of review. We agree with and adopt the reasoning of the trial court.

¶ 19 “Waiver is either an express or implied voluntary and intentional relinquishment of

a known and existing right.” Wells v. Minor, 219 Ill. App. 3d 32, 45 (1991). As to an

implied waiver, waiver of a legal right may arise when the conduct of the person against

whom waiver is asserted is inconsistent with an intent to enforce said right. Id. “A party

to a contract may not lull another into false assurance that strict compliance with a contract

duty will not be required and then sue for noncompliance.” Id. Our analysis focuses on

the intent of the nonbreaching party. Id. Where she has intentionally relinquished a known

right, either expressly or by conduct inconsistent with an intent to enforce that right, she

has waived it and may not thereafter seek judicial enforcement. Id.

¶ 20 As discussed above and at length by the trial court, the respondent waived her right

to demand strict compliance of the agreed order by expressly acknowledging that the

COVID-19 crisis was a reason to be patient and lulling the petitioner into believing that

the agreed order was still in place even though he missed the March 20, 2020, deadline, he

8 missed the April 2020 payment deadline, and his payments were less than the $1500 for

six additional months in 2020.

¶ 21 Next, we agree with and adopt the trial court’s analysis regarding the petitioner’s

performance under the terms of the agreed order and in finding that the petitioner was not

in default of the order. Within 10 days of the entry of the agreed order, all parties and

counsel were aware that the petitioner had lost his job and was receiving unemployment,

all parties were aware of the extended “stay at home” orders, and all parties were aware

that the petitioner had already violated the terms of the agreed order. Though the petitioner

failed to strictly comply with the terms of the agreed order, the respondent accepted the

petitioner’s payments, acknowledged the COVID-19 crisis, acknowledged the issues that

needed to be corrected in the agreed order, and offered to be patient.

¶ 22 Third, the respondent argues in the alternative that the trial court should have found

the agreed order to be void as its terms were ambiguous. We disagree. The court was able

to discern the intent of the parties through the use of parol evidence showing the parties’

intent when entering into the agreed order, and the respondent never filed any kind of

motion for relief from judgment. The respondent cites no legal basis for the trial court to

have vacated the agreed order.

¶ 23 Lastly, the respondent argues that should this court agree with her second argument

raised above, then an award of attorney fees is appropriate. As we have already discussed,

we find that the petitioner was not in default and therefore need not address this final point.

9 ¶ 24 III. CONCLUSION

¶ 25 Based on the foregoing, we affirm the judgment of the circuit court of Champaign

County.

¶ 26 Affirmed.