Van Luvender v. Gwaltney

2021 IL App (5th) 180400-U

• Court: Appellate Court of Illinois
• Decided: August 17, 2021
• Docket: 5-18-0400
• Status: Unpublished

Opinion

2021 IL App (5th) 180400-U NOTICE NOTICE Decision filed 08/17/21. The This order was filed under text of this decision may be NO. 5-18-0400 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion 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 ______________________________________________________________________________

JAMES W. VAN LUVENDER, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Jefferson County. ) v. ) No. 09-D-192 ) SANDRA L. GWALTNEY, f/k/a Sandra L. ) Van Luvender, ) Honorable ) Timothy R. Neubauer, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Barberis and Wharton concurred in the judgment.

ORDER

¶1 Held: The trial court’s order requiring plaintiff to reimburse defendant for health insurance premiums, medical expenses, and attorney fees is affirmed where sufficient evidence supports the order.

¶2 Plaintiff, James W. Van Luvender (James), appeals from the trial court’s order requiring

him to reimburse defendant, Sandra L. Gwaltney f/k/a Sandra L. Van Luvender (Sandra), for health

insurance premiums, medical expenses, and attorney fees, claiming there was insufficient evidence

in the record to support the reimbursement. James also contends the trial court failed to adhere to

the rules of judicial conduct and exhibited bias for Sandra. Finally, James contends the trial court

erred by allowing Sandra access to his new family’s private and vital information. For the

following reasons, we affirm.

1 ¶3 I. BACKGROUND

¶4 James and Sandra were married on October 12, 2002. A judgment for divorce was entered

on September 7, 2010, that incorporated the parties’ marital settlement agreement (MSA). Two

children born of the marriage were six and four years’ old at the time of the divorce, and Sandra

was granted custody of the children. The MSA addressed child support, insurance, and parenting

time. James was required to provide Sandra with copies of his federal and state income tax returns,

along with his W-2s. Sandra was required to maintain health insurance on the minor children. If

the premium for the health insurance increased to over $100 per month, James was required to

reimburse Sandra for one-half the cost of said premium. The parties further agreed to split the

medical, dental, optical, orthodontal, psychiatric, and pharmaceutical expenses not covered by

insurance, with each party paying 50% of the unpaid cost. Sandra and James each claimed one of

the children for tax purposes. The remainder of the MSA divided James and Sandra’s marital assets

and liabilities.

¶5 Over the next six years, numerous petitions to modify and rule to show cause petitions

were filed. We address only the pleadings and orders relevant to this appeal. On June 16, 2016,

Sandra filed a petition for rule to show cause alleging that James failed to provide copies of his

taxes and failed to reimburse her for health insurance premiums and medical expenses. An order

to show cause was issued on June 22, 2016. James responded on August 2, 2016, stating he had

provided his taxes except for those delayed by his accountant, that he had requested copies of

Sandra’s payments for health insurance but never received them, and that he had insufficient funds

to pay for the health insurance or medical expense reimbursements. On September 13, 2016, the

trial court issued an order finding James violated an order of the court. The order required James

to pay the $134.43 in medical expenses that he admitted were due and found that James owed no

2 reimbursement for health care premiums through July 31, 2016. However, due to a change in

insurance plans, James was now required to reimburse Sandra $87.50 each month beginning

August 1, 2016, for half of the children’s health insurance premiums. The order also awarded

Sandra $650 in attorney fees stemming from the proceedings. Judgment was entered against James

in the amount of $784.43. No appeal was taken.

¶6 On February 9, 2017, Sandra filed a petition for rule to show cause claiming James failed

to pay the health insurance and attorney fees stemming from the September 13, 2016, order. On

February 10, 2017, an order to show cause was issued. On March 24, 2017, James filed a petition

to modify the MSA requesting the court: (1) relieve him from paying any part of the children’s

health insurance premiums, (2) relieve him from providing copies of his tax filings to Sandra,

(3) award him more parenting time, and (4) award him different and more communication with

the children via social media. On April 13, 2017, Sandra filed a petition to modify child support

claiming James’s income increased.

¶7 All pending matters were set for hearing on May 4, 2018. Both parties were represented by

counsel, and the trial court noted an agreement regarding parenting time and communication. On

June 7, 2018, the trial court issued an order incorporating the parties’ parenting time and

communication agreement. The order also found James in arrears and ordered him to pay Sandra:

(1) $1412 for the unreimbursed health insurance premiums, (2) $177.39 for unpaid medical

expenses, (3) $650 for unpaid attorney fees awarded in prior orders, and (4) $600 in attorney fees

for the current proceeding, before January 1, 2019. The order eliminated James’s obligation to pay

one-half of the medical insurance premiums but only if James paid the full amount due from the

June 7, 2018, order ($2839.39) prior to January 1, 2019. The order also modified the MSA to allow

Sandra to claim both children on all future tax filings beginning with tax year 2018 and removed

3 James’s obligation to provide Sandra with full copies of his tax filings. James was now only

required to provide Sandra with his W-2s and the K-1 schedules from his tax returns. The final

paragraph addressed Sandra’s wait time for the parenting time exchanges. The trial court issued

an amended order on June 20, 2018, which restated everything from the June 7, 2018, order but

amended the final paragraph to increase Sandra’s wait time for the exchanges.

¶8 On August 17, 2018, James filed a pro se motion for leave to file a late notice of appeal

with this court which was granted on August 24, 2018.

¶9 II. ANALYSIS

¶ 10 We recognize that plaintiff is proceeding pro se on this appeal. However, when litigants

appear pro se, their status does not relieve them of their burden to comply with the court’s rules.

Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 30. Supreme court rules are not advisory

suggestions, but rules to be followed. In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57.

¶ 11 a. The Trial Court’s Award of Health Insurance Premiums and Attorney Fees

¶ 12 We review a judgment setting an amount for arrearage or payment of attorney fees for an

abuse of discretion and give deference to the trial court’s ultimate conclusions; however, if the

trial court’s factual findings are disputed, the record is reviewed under a manifest weight of the

evidence standard. In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984); In re Marriage of

Barile, 385 Ill. App. 3d 752, 759 (2008).

¶ 13 James contends that the documents submitted by Sandra did not justify requiring James to

pay for health insurance premiums or show proof of Sandra’s out-of-pocket expenses. James

further contends that he should not have to pay for the health insurance premiums because the

children were placed on AllKids on January 1, 2012. James’s argument, as conceded in his brief,

stems from the trial court’s September 13, 2016, order. There is no dispute that it was the

4 September 13, 2016, order which determined the sufficiency of Sandra’s evidence, in conjunction

with James’s defenses, and required James to begin reimbursing Sandra $87.50 a month for the

children’s health insurance premiums.

¶ 14 A notice of appeal “shall specify the judgment or part thereof or other orders appealed from

and the relief sought from the reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff. July 1, 2017). The

notice “confers jurisdiction on a court of review to consider only the judgments or parts of

judgments specified in the notice of appeal.” General Motors Corp. v. Pappas, 242 Ill. 2d 163,

176 (2011). James’s notice of appeal specifically stated it was appealing from the “order of June

20, 2018” and that he was asking this court “to reverse previous orders entered for this cause and

reconsider the decisions made for further relief.” While a notice of appeal is liberally construed

(People v. Smith, 228 Ill. 2d 95, 104 (2008)), James’s notice of appeal, no matter how liberally

construed, cannot be said to have fairly and adequately set out the court’s order complained of to

include the September 13, 2016, order. The notice only specifically mentioned the June 20, 2018,

order and failed to include any other specific date for the “previous orders entered for this cause.”

Further, we discern nothing from the record, nor is any argument made, to undermine our

conclusion that the trial court’s September 13, 2016, order was final and was not a “step in the

procedural progression leading” to the judgment specified in the notice of appeal. See Burtell v.

First Charter Service Corp., 76 Ill. 2d 427, 434-35 (1979); In re Custody of R.W., 2018 IL App

(5th) 170377, ¶¶ 46-51. As such, we find this court is without jurisdiction to consider James’s

claims with respect to the September 13, 2016, order and dismiss that portion of James’s appeal.

See Pappas, 242 Ill. 2d at 175-77.

¶ 15 Moreover, while James appealed the trial court’s June 20, 2018, order, he provided no copy

of the transcript from the May 5, 2018, hearing that precipitated the order. Plaintiff’s failure to

5 provide a transcript of the trial proceeding, or an acceptable substitute, violates Illinois Supreme

Court Rule 323 (eff. July 1, 2017). It is well established that the burden is on the appellant to

present a sufficiently complete record of the trial proceedings to establish the claimed error. Foutch

v. O’Bryant, 99 Ill. 2d 389, 394 (1984). In the absence of an adequate record on appeal, it is

presumed that the order entered conforms to the law and is based upon a sufficient factual basis.

Id. However, where the principal issue raised on appeal involves a question of law, the absence of

a transcript or other substitute does not bar review. See Van Walsen v. Blumenstock, 66 Ill. App.

3d 245, 247 (1978).

¶ 16 James’s brief provided argument related to the September 13, 2016, order, but no factual

or legal argument related to the June 20, 2018, order. “A reviewing court is entitled to have the

issues clearly defined and supported by pertinent authority and cohesive arguments; it is not merely

a repository into which an appellant may ‘dump the burden of argument and research,’ nor is it the

obligation of this court to act as an advocate.” U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459

(2009) (quoting Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993)). As such, we find that James

forfeited any appealable issue stemming from the June 20, 2018, order (Kic v. Bianucci, 2011 IL

App (1st) 100622, ¶ 23) and that the trial court’s June 20, 2018, order enforcing the September 13,

2016, order, which required James to reimburse Sandra for health insurance premiums and attorney

fees, was neither an abuse of discretion nor against the manifest weight of the evidence.

¶ 17 b. Judicial Bias

¶ 18 James contends that the trial court’s statements, provided at the December 5, 2013, hearing,

mentioned the judge’s personal events and standards for when children should go to bed or whether

children should eat breakfast before attending school. James also takes issue with the judge’s

statements at the February 27, 2014, hearing addressing his own driving experiences during the

6 winter in Southern Illinois. James contends that the judge’s statements violated Rule 62 of the

Code of Judicial Conduct (Ill. S. Ct. R. 62 (eff. Oct. 15, 1993)). Finally, James contends that the

trial court interrupted James during the proceedings on February 27, 2014, and that he was

unallowed to fully state his case in violation of Rule 63 of the Code of Judicial Conduct (Ill. S. Ct.

R. 63 (eff. July 1, 2013)). James argues that the trial court’s statements and actions reveal judicial

bias for Sandra and against James.

¶ 19 James’s arguments are not well taken by this court. First, we note that James’s complaints

arise from proceedings that occurred on December 5, 2013, and February 27, 2014. After hearing

the trial court’s ruling following the December 5, 2013, hearing, James was so pleased with the

trial court’s decision that he stated, “I could kiss you” and “This is the only thing I’ve been asking

for. Thank you.” Thereafter, an agreed order was entered on December 13, 2013. No appeal was

taken from that order. As such, this court has no jurisdiction to address any of the judicial issues

that might stem from the December 5, 2013, hearing or the December 13, 2013, order. See Pappas,

242 Ill. 2d at 175-77; In re J.P., 331 Ill. App. 3d 220, 234 (2002).

¶ 20 We also reviewed the record of proceedings from the February 27, 2014, hearing. At no

time did James argue to the trial court that he was not allowed to present his case. Review of the

record also reveals that neither James, nor his attorney, ever filed any petition or motion claiming

judicial bias. Therefore, in addition to not specifically appealing any order stemming from the

February 27, 2014, hearing, there is no evidence that the issue of judicial bias was raised before

the trial court. “[T]his is critical, as arguments may not be raised for the first time on appeal.”

Webber v. Wight & Co., 368 Ill. App. 3d 1007, 1019 (2006).

¶ 21 James also contends his civil rights were violated due to the alleged judicial bias. This

claim is found in one sentence within the statement of authorities. First, we find no evidence in the

7 record where such claim was made before the trial court. As such, the issue is not properly before

this court. See id. Further, James presented no argument, no citation to the record, and no citation

to any authority in his brief on this issue. “An issue that is merely listed or included in a vague

allegation of error is not ‘argued,’ ” fails to satisfy Illinois Supreme Court Rule 341(h)(7) (eff.

May 25, 2018), and is therefore forfeited. Vancura v. Katris, 238 Ill. 2d 352, 370 (2010). Therefore,

we will not consider James’s judicial bias claims.

¶ 22 c. Exchange of James’s Tax Documents

¶ 23 Finally, James contends that the trial court erred in allowing Sandra access to James’s

private information. James’s brief claims this issue was addressed in his January 2, 2014, motion

to modify agreed order; however, review of that pleading reveals no claim related to James’s

private information or his tax filings. On appeal, James relies on section 312 of the Uniform

Interstate Family Support Act (750 ILCS 22/312 (West 2018)); however, the record is devoid of

any affidavit filed by James requesting relief from the trial court under this statute. In fact, the only

record substantiating James’s alleged complaints about turning over the full contents of his annual

tax filings to Sandra is found in the trial court’s June 20, 2018, order which eliminated James’s

obligation to provide his full tax filings to Sandra. Again, we note that the May 5, 2018, hearing

transcript was not provided on appeal. In the absence of any evidence to the contrary, we presume

the trial court’s order extinguishing James’s requirement to provide Sandra with full copies of his

tax filings, and requiring James to only provide Sandra with copies of his W-2s and K-1 schedules,

was not an abuse of discretion. Foutch, 99 Ill. 2d at 394.

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, we affirm the trial court’s June 20, 2018, order.

8 ¶ 26 Dismissed in part and affirmed in part.