Opinion
NO. 4-12-0890
05-10-2013
PATTI SCANLON, Petitioner-Appellee, v. BRIAN SCOTT KENSHOL, Respondent-Appellant.
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).
Appeal from
Circuit Court of
Logan County
No. 02F81
Honorable
Thomas W. Funk,
Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Knecht and Turner concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, holding the trial court did not err by entering a $30,000 purge order after finding respondent in indirect civil contempt of court. ¶ 2 Respondent, Brian Scott Kenshol, appeals the trial court's July 13, 2012, order finding him in contempt and ordering him to serve 30 weekends in the Logan County jail, subject to his payment of $30,000 in child support arrearages. ¶ 3 Respondent argues the trial court erred when it required him to pay $30,000 to purge his contempt. We affirm.
¶ 4 I. BACKGROUND
¶ 5 Respondent fathered a child, B.K., born October 24, 2000, with petitioner. In October 2002, petitioner filed for custody and determination of child support. The petition alleged respondent was employed as an automotive mechanic in Springfield. In January 2003, the trial court entered an agreed temporary order for $87.60 in weekly child support. The order stated this amount represented 20% of respondent's statutory net income. In May 2004, respondent, while in jail, filed a motion to temporarily abate child support. Later that month, the trial court granted respondent's motion to temporarily abate support. ¶ 6 A petition to establish a specific visitation schedule was filed by respondent January 21, 2011. We note, the trial court's order on the January 2011 petition to establish a specific visitation schedule indicates that in May 2004, respondent pleaded guilty to eight counts of child pornography in Logan County case No. 03-CF-41 and was sentenced to 30 months of probation and 180 days in the county jail. ¶ 7 In January 2012, the trial court entered an order finding respondent owed an arrearage of $53,225.39 as of October 31, 2011. The court ordered respondent to pay $60 per week in support and $25 per week toward his arrearage. ¶ 8 In March 2012, respondent filed a petition to modify child support. Respondent asserted the modification was necessary as he was no longer working or able to find employment. ¶ 9 In June 2012, the State filed a petition for adjudication of indirect civil contempt. The trial court heard the petition to modify child support and the petition for adjudication of indirect civil contempt concurrently. The court denied respondent's motion to modify support but granted the petition for adjudication of indirect civil contempt. The trial court found respondent in contempt of court for failing to pay child support. ¶ 10 In July 2012, the trial court held a sentencing hearing. Respondent testified that since the finding of indirect civil contempt, he had complied with the order that he pay $60 each week for current child support. Respondent had applied to six employers and continued to sell items on the Internet. Respondent's exhibits showed respondent applied to three mechanic jobs and various repair and laborer jobs. He testified his father was a cosigner on the mortgage and did not charge respondent rent to live in the house. Respondent's parents paid the mortgage. ¶ 11 The trial court found respondent's inability to pay resulted from a reduction in income that was not in good faith. The court also noted he had not paid support commensurate with his ability to pay. The court found respondent owned a house and "if sold [may] provide the respondent with the ability to pay off the arrearage." ¶ 12 The trial court sentenced respondent to 30 weekends in the Logan County jail beginning October 3, 2012. The order entered allowed respondent to purge himself of contempt by paying $30,000 toward the child support arrearage prior to October 3, 2012. ¶ 13 In July 2012, respondent filed a motion to reconsider. Attached to the motion was a title search dated February 27, 2012, that had been conducted by the Logan County Title Company. The title search revealed (1) a mortgage dated June 11, 1998, in the principal amount of $60,800; (2) a judgment lien by Worldwide Asset Purchasing, LLC, recorded August 10, 2006, in the amount of $19,451.94; (3) sewerage lien recorded May 23, 2011, in the amount of $268.54; and (4) a lien by the Illinois Healthcare and Family Services Child Support Enforcement Collection and Asset Recovery Unit recorded December 5, 2011, in the amount of $54,122.21. ¶ 14 In August 2012, the trial court held a hearing on respondent's motion to reconsider his sentence. Respondent argued "given the value of the house compared to the liens," the $30,000 purge payment was "unrealistic." The court noted that while the title search was helpful, it did not provide the current balance of the mortgage or the June 2006 civil judgment lien. The court stated it did not "feel comfortable making a finding here that his house is quote, underwater, end quote, based on liens that were filed in 1998." The court denied the motion to reconsider. ¶ 15 In September 2012, respondent filed a notice of appeal. A week later, he filed a motion to stay execution of his sentence, which the court denied in October 2012. ¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, respondent argues the trial court erred when it required him to pay $30,000 to purge himself of indirect civil contempt. Specifically, respondent argues the $30,000 purge order was not based on his ability to pay and "given [his] limited income and assets, in this case it was certainly unrealistic and placed the keys to the jail well outside of [his] reach."
¶ 19 A. Lack of Appellee's Brief
¶ 20 Petitioner has failed to file a brief on appeal. Courts of review will not serve as an advocate for the appellee. Hess v. Hess, 87 Ill. App. 3d 947, 949, 409 N.E.2d 497, 498 (1980). However, where the record is simple and the claimed error is such that the court can easily decide the case without the aid of an appellee's brief, a court of review should decide the merits of the appeal. Frank v. Hawkins, 383 Ill. App. 3d 799, 808, 891 N.E.2d 522, 529 (2008). This is such a case.
¶ 21 B. Standard of Review
¶ 22 A trial court's finding of contempt is a question of fact, and a reviewing court will not disturb that finding unless it is against the manifest weight of the evidence or the record reveals an abuse of discretion. In re Estate of Hayden, 361 Ill. App. 3d 1021, 1030, 838 N.E.2d 93, 101 (2005).
¶ 23 C. Indirect Civil Contempt and Ability To Pay in General
¶ 24 Section 505(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505(b) (West 2010)) authorizes the trial court, by the use of its contempt power, to punish failure to comply with an order to pay child support. ¶ 25 When a party is found in civil contempt of court, the contempt order seeks only to secure obedience to its prior order, and "the civil contemnor must be provided with the 'keys to his cell' " in order to purge himself of contempt. In re Marriage of Logston, 103 Ill. 2d 266, 289, 469 N.E.2d 167, 177 (1984). "The purging provision in any civil contempt sanction for nonpayment must be based on the contemnor's ability to pay." In re Marriage of Dunseth, 260 Ill. App. 3d 816, 828, 633 N.E.2d 82, 92 (1994). "However, the defense of poverty and misfortune as a valid excuse for nonpayment has been found applicable only in the most extreme cases, notably where a defendant had no money and no way of getting money to meet his support obligations." In re Marriage of Dall, 212 Ill. App. 3d 85, 97-98, 569 N.E.2d 1131, 1139 (1991). See also In re Marriage of Betts, 155 Ill. App. 3d 85, 100, 507 N.E.2d 912, 922 (1987) ("[A] clear defense to contempt exists where the failure of a person to obey an order to pay is due to poverty, insolvency, or other misfortune, unless that inability to pay is the result of a wrongful or illegal act."); Hayden, 361 Ill. App. 3d at 1029, 838 N.E.2d at 101 ("To prove that a failure to pay was not wilful, a defendant must show that he does not have the money and that he did not wrongfully dispose of money or assets by which he could have made payment.").
¶ 26 D. Respondent's Ability To Pay Claim
¶ 27 Respondent contends the $30,000 purge payment does not reflect his ability to pay because he has limited income and assets. In support, he asserts (1) as of June 8, 2012, his total net income was $1,236.77; (2) his "sole major asset, his residence, which as of March 31, 2012, had a balance of $47,496.34 remaining on the mortgage"; (3) his residence was valued at $100,000 and had approximately $115,000 in liens; (4) he "did not have a regular monthly income and due to his status as a registered sex offender he is only minimally employable"; and (5) "$30,000 was twenty-four times [his] total income." ¶ 28 First, we note the trial court's July 13, 2012, order expressly provided respondent could purge his contempt prior to October 3, 2012, by paying $30,000 toward his arrearage. The October 19, 2012, docket entry does not expressly state respondent could purge his contempt after beginning his periodic imprisonment. Respondent neither raises this issue on appeal nor provides a record of the October 19, 2012, hearing. We construe the ambiguity against respondent and assume the court permitted respondent to purge his contempt by paying $30,000 after he began his periodic imprisonment. ¶ 29 We find unpersuasive Respondent's argument the $30,000 purge order does not reflect his ability to pay. Respondent offers he is "only minimally employable" because he is a registered sex offender. Respondent asserts his "unemployability" and inability to pay is similar to that in In re Marriage of Harvey, 136 Ill. App. 3d 116, 483 N.E.2d 397 (1985), and Betts. In Harvey, the Third District found the trial court's purge provision requiring the payment of $2,860 was "unrealistic" because of "the father's current unpropertied, unemployed, and apparently unemployable condition." Harvey, 136 Ill. App. 3d at 118, 483 N.E.2d at 399. In Betts, the trial court ordered the respondent to pay $12,950 in child support arrearages, which he did. Betts, 155 Ill. App. 3d at 104, 507 N.E.2d at 925. This court stated "the court below could have allowed respondent to purge himself by ordering an initial payment and requiring payment of the balance by installment. Hindsight suggests requiring payment of $12,950 all at once was unrealistic, particularly based on [respondent's] ability to pay." Betts, 155 Ill. App. 3d at 104, 507 N.E.2d at 925. As the respondent had paid the full amount, the issue was moot on appeal. Betts, 155 Ill. App. 3d at 104, 507 N.E.2d at 925. Moreover, Betts does not stand for the proposition that those found in contempt are entitled to make installment payments. ¶ 30 Here, there is no evidence respondent is physically incapable of employment; he did not serve a lengthy prison sentence in Logan County case No. 03-CF-41, and he has property available to allow him to pay the purge amount. Respondent offers no accounting for eight years of unemployment. His assertion he is "minimally employable" concedes he is employable. Moreover, respondent offers no evidence that would refute the trial court's findings that respondent's inability to pay was not in good faith, that his reduction in income was not in good faith, and that he had not paid support commensurate with his ability to pay. See Dall, 212 Ill. App. 3d at 98, 569 N.E.2d at 1139 ("[F]inancial inability to comply with an order must be shown by definite and explicit evidence [citation]. That burden is not met by testimony of a general nature with regard to financial status."). Despite his status as a registered sex offender, the trial court was entitled to conclude respondent can obtain gainful employment and the court's order for periodic imprisonment enables respondent to maintain employment five days a week. ¶ 31 Respondent's assertion his residence has $115,000 in liens against it is disingenuous as approximately $54,000 of these liens are for unpaid child support. The trial court was unwilling to accept respondent's contention his house was "underwater" and nothing in the record supports disturbing the court's decision. Before requiring respondent to begin his sentence of periodic imprisonment, the court provided him three months to comply with the $30,000 purge order. Respondent had a viable opportunity to purge himself and he chose not to do so. He continues to possess the means to access the money necessary to comply with the court's order. As such, he holds the keys to his cell. ¶ 32 The trial court did not abuse its discretion when it imposed a $30,000 purge order.
III. CONCLUSION
¶ 33 For the reasons stated, we affirm the trial court's judgment. ¶ 34 Affirmed.