                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                      In re Marriage of Kolessar, 2012 IL App (1st) 102448




Appellate Court            In re MARRIAGE OF CATHY KOLESSAR, f/k/a Cathy Signore,
Caption                    Petitioner-Appellant, and THOMAS A. SIGNORE, Respondent-
                           Appellee.



District & No.             First District, Second Division
                           Docket No. 1-10-2448


Filed                      January 17, 2012


Held                       On appeal from an order denying petitioner’s motions for reconsideration
(Note: This syllabus       of the trial court’s judgments on respondent’s petitions for modification
constitutes no part of     of unallocated support, the appellate court reversed the denial of
the opinion of the court   petitioner’s request for statutory interest on the past-due support, since
but has been prepared      the Illinois Marriage and Dissolution of Marriage Act requires that
by the Reporter of         interest be paid on orders for child support, the agreed orders at issue did
Decisions for the          not contain an explicit waiver of petitioner’s right to statutory interest, the
convenience of the         trial court erred in failing to award interest and the cause was remanded
reader.)
                           for a determination of the proper amount, but the trial court’s findings
                           that respondent’s first unilateral modification of his payments was not
                           willful and contumacious and the court’s failure to find the second
                           unilateral modification was without cause or justification were affirmed
                           where there was no abuse of discretion on the trial court’s part under the
                           circumstances.


Decision Under             Appeal from the Circuit Court of Cook County, No. 96-D-15574; the
Review                     Hon. Barbara N. Meyer, Judge, presiding.
Judgment                   Affirmed in part and reversed in part; cause remanded.


Counsel on                 Law Office of Elizabeth Lidd Factor, of La Grange (Elizabeth Lidd
Appeal                     Factor, of counsel), for appellant.

                           Edward M. Duthaler, of Park Ridge, for appellee.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Justices Cunningham and Connors concurred in the judgment and
                           opinion.



                                             OPINION

¶1           Petitioner-appellant Cathy Kolessar (Kolessar), f/k/a Cathy Signore, appeals the order of
        the circuit court denying her two motions for reconsideration of its judgments on respondent-
        appellee Thomas A. Signore’s (Signore) petitions for modification of unallocated support
        payments. On appeal, Kolessar contends (1) the trial court erred in denying her request for
        statutory interest on the past-due support; (2) the trial court erred in finding that Signore’s
        first unilateral modification of his support payments was not willful or contumacious; and
        (3) the trial court erred in failing to find that Signore’s second unilateral modification was
        without cause or justification. We reverse the court’s determination as to statutory interest,
        but affirm the court’s findings regarding Signore’s unilateral modifications.

¶2                                         JURISDICTION
¶3          The trial court denied Kolessar’s motions to reconsider the April 2, 2010 orders on July
        15, 2010. Kolessar filed her notice of appeal on August 13, 2010. Accordingly, this court has
        jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
        final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30,
        2008).

¶4                                       BACKGROUND
¶5          Kolessar and Signore were married in 1985 and had three children. One child died at
        birth. On February 26, 1998, the trial court entered a judgment of dissolution of marriage,
        which incorporated the parties’ marital settlement agreement. At the time of the dissolution,
        their surviving children were seven and three years old. Signore was ordered to pay
        unallocated support of $2,000 per month based on his gross annual income of $70,000
        beginning March 1, 1998 and terminating on June 2, 2011.


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¶6         On September 25, 2008, Signore filed a petition for modification of his support
       obligation (first petition) alleging that (1) only one child living with Kolessar remained a
       minor; (2) Kolessar had remarried and found employment; (3) Signore was now employed
       by the University of Chicago at a “substantially” lower salary; and (4) he now had two other
       dependents to provide for since he remarried and has a son. From December 2008 to March
       2009, while the first petition was pending in the court, Signore unilaterally modified his
       support obligation from $2,000 to $1,203.84 per month.
¶7         On April 6, 2009, the parties entered into an agreed order modifying the support
       provision of the judgment effective April 1, 2009. The order terminated Signore’s obligation
       to pay unallocated family support and ordered him to pay $1,300 per month for support of
       the parties’ minor child “until emancipation of the [minor child], entry of a permanent
       support order, or a substantial change in circumstance, whichever is the first to occur.” On
       the same day, the trial court entered a uniform order for support modification finding that the
       amount represented 20% of Signore’s “net income excluding bonuses.” Neither the agreed
       order nor the uniform order addressed the issues of arrearage and interest to be paid on the
       arrearage.
¶8         In a letter dated June 15, 2009, Signore resigned from his job at the University of
       Chicago and Andrea M. Keeley, the associate director of human resources at the university,
       accepted his resignation. On August 6, 2009, Signore filed a petition for modification of the
       April 6, 2009 support order (second petition) requesting a reduction of his obligation from
       $1,300 to $421.14 per month. In his petition, Signore alleged that he was now receiving
       unemployment benefits and $421.14 represented 20% of his net benefits. He further alleged
       that his net monthly income had been involuntarily reduced to $2,105.74 and he had no other
       earnings. In August 2009, Signore unilaterally modified his support obligation from $1,300
       to $421.14 per month and he continued to pay the reduced amount through February 2010.
¶9         On August 12, 2009, Kolessar filed a petition for rule to show cause and other relief,
       alleging that Signore violated the terms of the April 6, 2009 agreed order and uniform order
       by (1) failing to provide major medical coverage or pay his share of unreimbursed medical
       expenses for both children; and (2) failing to pay the arrearages resulting from his unilateral
       reduction of support payments from December 2008 to March 2009, as well as the accrued
       interest. On October 14, 2009, Kolessar filed an answer and affirmative defense to Signore’s
       second petition alleging he had not made a showing of good faith that he resigned from his
       job for reasons other than to avoid support payments and that he did not experience a
       substantial change in circumstances. She also alleged that Signore had sufficient funds to
       continue paying $1,300 in monthly support despite the fact he was no longer employed. At
       the end of the discovery period, Signore’s attorney issued a subpoena for trial to Andrea
       Keeley. Counsel for Kolessar filed a motion to quash the subpoena on March 25, 2010 and
       filed an emergency motion to quash the subpoena on March 30, 2010.
¶ 10       The trial court held a hearing on Kolessar’s petition for rule to show cause, Signore’s
       second petition and Kolessar’s affirmative defenses, on April 2, 2010. The court first
       addressed Kolessar’s motion regarding the testimony of Keeley. Counsel for Kolessar argued
       against allowing Keeley to testify because she was not disclosed as a witness in a timely
       manner and Kolessar would be prejudiced by her testimony because her case was prepared

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       based only on the information and documents disclosed. The trial court granted the motion
       to bar Keeley’s testimony and exclude any documents related to her testimony.
¶ 11        The court also addressed the issue of arrears resulting from Signore’s first unilateral
       modification from December 2008 to March 2009 as well as the accumulated interest. The
       parties acknowledged that both April 6, 2009 orders were silent on these issues. The court
       found that Signore’s actions in unilaterally reducing his payments were not willful or
       contumacious, “but he does owe the money because the agreed order is effective April
       [2009] and he unilaterally reduced it in December [2008].” The court did not award interest
       because both orders were “silent on the issue.”
¶ 12        The parties next addressed whether Signore resigned from his position at the University
       of Chicago voluntarily or was terminated. In her argument, Kolessar’s counsel referenced
       documents produced by the University of Chicago but Signore’s counsel objected to
       admitting the evidence without a proper foundation. The court noted that Signore received
       unemployment benefits, which would not be possible if he willfully terminated his
       employment. Kolessar’s counsel disagreed with the court’s statement. The court then
       proceeded to continue the hearing “in back” without the presence of a court reporter.
       Kolessar’s brief states that “[w]hile off the record, the Court made it clear that [Kolessar’s
       counsel] would not be allowed to call Keeley to the stand to lay an evidentiary foundation
       for the documents.”
¶ 13        The trial court issued two orders on April 2, 2010. The first order found that Signore’s
       first unilateral modification was not willful or contumacious, granted Kolessar’s motion to
       bar Keeley from testifying or introducing documents not previously produced, and entered
       judgment against Signore in the amount of $3,184.64 for past-due support stemming from
       his first unilateral modification. The second order was an agreed order pertaining to
       Signore’s second petition for modification. The court ordered Signore to pay $1,300 per
       month in child support plus another $376.71 per month in past-due support resulting from
       his second unilateral modification. The order stipulated that Signore would pay child support
       until June 2, 2011. Although Signore was ordered to pay both arrearages, the court did not
       impose statutory interest on either amount.
¶ 14        That same day, Kolessar filed a motion to reconsider the second order. She contended
       that Signore’s second unilateral modification was without cause or justification and she was
       entitled to statutory interest on the arrearage. Kolessar also filed a motion to reconsider the
       trial court’s finding that Signore’s first unilateral modification was not willful or
       contumacious and its denial of her request for statutory interest on the first arrearage. The
       court denied the motions, finding that Signore’s failure to pay was not willful and
       contumacious and that interest accrued on past-due support was discretionary. Kolessar filed
       this timely appeal.

¶ 15                                         ANALYSIS
¶ 16       Kolessar appeals the trial court’s denial of her motions to reconsider. In the first motion,
       Kolessar alleged that the trial court erred in finding that the imposition of statutory interest
       on the arrearages was discretionary, relying on Finley v. Finley, 81 Ill. 2d 317 (1980). In the

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       second motion, Kolessar challenged the trial court’s finding in its April 2, 2010 order that
       Signore’s failure to pay support was not willful or contumacious. These arguments are not
       based on new matters or new legal theories but, rather, dispute the trial court’s application
       of existing law. Therefore, our standard of review is de novo. Muhammad v. Muhammad-
       Rahmah, 363 Ill. App. 3d 407, 415 (2006).
¶ 17       First we address Kolessar’s contention that the trial court erred in applying Finley. In
       Finley, the supreme court likened a dissolution proceeding to a chancery proceeding and thus
       held that awarding interest on support payments was within the trial court’s discretion if
       “warranted by equitable considerations.” Finley, 81 Ill. 2d at 332. In Illinois Department of
       Healthcare & Family Services ex rel. Wiszowaty v. Wiszowaty, 239 Ill. 2d 483 (2011), the
       supreme court clarified its ruling in Finley, finding that it “stands for the proposition that,
       where there are no controlling statutes defining unpaid support payments as judgments or
       providing for interest, interest may be awarded *** as a discretionary matter.” (Emphasis in
       original.) Wiszowaty, 239 Ill. 2d at 489.
¶ 18       As Wiszowaty points out, Finley was decided in 1980 before the General Assembly
       passed Public Act 85-2 (eff. May 1, 1987), which amended the Illinois Marriage and
       Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2006)). Public
       Act 85-2 also amended section 12-109 of the Code of Civil Procedure to provide that support
       orders are judgments against the person obligated to pay, and that “[e]very judgment ***
       arising by operation of law from child support orders shall bear interest thereon as provided
       in Section 2-1303.” 735 ILCS 5/12-109 (West 2006). In stating that unpaid child support
       payments “shall” be deemed judgments and that these judgments “shall” bear interest, the
       amendments indicate a “mandatory requirement.” Wiszowaty, 239 Ill. 2d at 487. Therefore,
       the Marriage Act provides a statutory right to interest on judgments arising from orders for
       payment of child support.
¶ 19       Signore responds, however, that at issue here are agreed orders. Such an order represents
       “a recitation of an agreement between the parties and is subject to the rules of contract
       interpretation.” In re Marriage of Tutor, 2011 IL App (2d) 100187, ¶ 13. They are not
       “judicial determination[s] of the parties’ rights.” In re Haber, 99 Ill. App. 3d 306, 309
       (1981). Furthermore, agreed orders are “conclusive on the parties and can be amended or set
       aside *** only upon a showing that the order resulted from fraudulent misrepresentation,
       coercion, incompetence of one of the parties, gross disparity in the position or capacity of the
       parties, or newly discovered evidence.” Haber, 99 Ill. App. 3d at 309. Signore argues that the
       orders intended to “address and finalize” all issues pertaining to his petitions for modification
       and the fact that they were silent on the issue of interest evidenced the parties’ intent to
       preclude an interest award.
¶ 20       It is true that parties in an agreed order may waive their statutory rights “so long as the
       waiver is knowing, voluntary, and intentional.” In re Estate of Ferguson, 313 Ill. App. 3d
       931, 937 (2000). The agreed order, however, must reflect an “intentional relinquishment” of
       that right. Village of Bellwood v. American National Bank & Trust Co. of Chicago, 2011 IL
       App (1st) 093115, ¶ 25. Mere silence on the issue is not enough; rather, if a party intends to
       waive its statutory right a provision stating such should be included in the agreement. Id. See
       also Tutor, 2011 IL App (2d) 100187, ¶ 16 (party did not relinquish her right to postjudgment

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       interest where the agreed order did not contain an explicit waiver of that right).
¶ 21        Here, the agreed orders were silent on the issue of statutory interest pertaining to the
       arrearages. Since the Marriage Act requires that interest be paid on orders for child support,
       and the agreed orders at issue did not contain an explicit waiver by Kolessar of her right to
       the statutory interest, the trial court erred in failing to award interest on the arrearages.
       Therefore, we remand the cause to the trial court to determine the proper amount of interest.
¶ 22        In her second motion to reconsider, Kolessar challenged the trial court’s finding in its
       April 2, 2010 order that Signore’s failure to pay support was not willful or contumacious. It
       is not clear from the order whether it referred to Signore’s first unilateral modification or his
       second unilateral modification, but the record shows that at the hearing the trial court made
       a finding that Signore’s first unilateral modification was not willful or contumacious. When
       the hearing turned to his second modification, the parties began discussing Signore’s
       employment situation at, and resignation from, the University of Chicago. The trial court
       noted that Signore was receiving unemployment benefits, which indicated that his
       termination was not willful. Counsel for Kolessar disagreed, and the trial court continued the
       discussion outside the presence of court reporters. Although no further reports of the
       proceedings are found in the record, Kolessar’s brief states that “[w]hile off the record, the
       Court made it clear that [Kolessar’s counsel] would not be allowed to call Keeley to the stand
       to lay an evidentiary foundation” for certain university documents. The parties subsequently
       entered into the April 2, 2010 agreed order detailing Signore’s payment for current support,
       and for “past due support accrued between 9-1-09 through 2-28-10.” The agreed order
       contained no statement that Signore’s second unilateral modification was willful or
       contumacious or without cause or justification.
¶ 23        Kolessar contends that the trial court erred in finding that Signore’s first unilateral
       modification was not willful or contumacious. Although noncompliance with a child support
       order is prima facie evidence of indirect civil contempt (In re Marriage of Dall, 212 Ill. App.
       3d 85, 97 (1991) (quoting In re Marriage of Harvey, 136 Ill. App. 3d 116, 117-18 (1985))),
       the burden then shifts to the party so charged to prove that he is unable to pay (In re
       Marriage of Anderson, 409 Ill. App. 3d 191, 210 (2011)). The mere absence of compliance
       with support provisions is not sufficient to find the violating party in contempt, “unless the
       evidence shows the failure to comply was a willful [sic] and contumacious refusal to obey
       the court order.” (Internal quotation marks omitted.) Giamanco v. Giamanco, 111 Ill. App.
       3d 1017, 1023 (1982). Whether noncompliance is willful is a fact question for the trial court,
       and a reviewing court will not overturn the trial court’s determination unless it is against the
       manifest weight of the evidence or the record reveals an abuse of discretion. In re Marriage
       of Anderson, 409 Ill. App. 3d at 210.
¶ 24        To support her argument, Kolessar relies on In re Marriage of Clay, 210 Ill. App. 3d 778,
       781 (1991). We do not find Clay persuasive here. In Clay, the trial court ruled on a petition
       for attorney fees pursuant to section 508(b) of the Marriage Act. It concluded that “for the
       purposes of section 508(b) of the Act, *** the unilateral reduction in support payments
       without court order, by itself, is adequate to establish the ‘without cause or justification.’ ”
       Id. The court in the case at bar, however, never ruled on a section 508(b) petition for attorney
       fees and thus made no corresponding finding on whether Signore’s unilateral modification

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       was without cause or justification.
¶ 25        Instead, the trial court here found that Signore’s reduction in support payments was not
       willful or contumacious. Although this court has stated that “a finding of ‘willful’
       delinquency in making payments required by the trial court order is the equivalent of finding
       that the failure to comply is ‘without cause or justification,’ ” a finding of no willful or
       contumacious behavior is not necessarily the same as a finding of cause or justification. In
       re Marriage of Dieter, 271 Ill. App. 3d 181, 192 (1995); see also In re Marriage of Roach,
       245 Ill. App. 3d 742, 748 (1993).
¶ 26        Nothing in the record indicates that the court found Signore in contempt regarding his
       first unilateral modification. Also, the agreed order outlining Signore’s obligation to pay
       $1,300 per month in support was silent on the “without cause or justification” issue. The
       record shows that at the time of the first modification, one of the parties’ children had
       reached the age of majority, Kolessar had remarried, and Signore began working at the
       University of Chicago at a reduced salary. We cannot say that the trial court abused its
       discretion in finding that Signore’s unilateral modification was not willful or contumacious,
       or in failing to find that he acted without cause or justification. See In re Marriage of
       Garelick, 168 Ill. App. 3d 321, 328 (1988) (trial court did not abuse its discretion in finding
       that party was not in contempt for his unilateral reduction of unallocated maintenance, but
       not making a finding of whether he acted without cause or justification).
¶ 27        Kolessar also argues that the failure to find Signore acted without cause or justification
       in his second unilateral modification was against the manifest weight of the evidence.
       Signore’s second unilateral modification was the subject of an agreed order. As discussed
       above, an agreed order is an agreement subject to rules of contract interpretation. Tutor, 2011
       IL App (2d) 100187, ¶ 13. In interpreting a contract, the primary concern is to give effect to
       the parties’ intent. Gallagher v. Lenart, 226 Ill. 2d 208, 232 (2007). The best indicator of the
       parties’ intent is the plain and ordinary meaning of the language in the contract. Gallagher,
       226 Ill. 2d at 233. A court may not add terms to the agreement that the parties have not
       expressly included. Tutor, 2011 IL App (2d) 100187, ¶ 13. The April 2, 2010 agreed order
       is silent as to whether Signore’s second modification was willful or contumacious, or without
       cause or justification. The trial court did not err in refusing to make such a finding as to
       Signore’s second modification.
¶ 28        Kolessar also argues that the evidence does not support a finding that Signore
       experienced a substantial change in circumstances regarding his second unilateral
       modification, and that the trial court’s failure to find his actions without cause or justification
       was arbitrary and capricious. Kolessar requests that this court either reverse the trial court’s
       decision or remand for a full evidentiary hearing. The record contains very little evidence of
       Signore’s employment situation with the University of Chicago. In fact, Kolessar’s counsel
       filed a successful motion to bar testimony from Andrea Keeley, the associate director of
       human resources at the University of Chicago, and she was unable to lay a proper foundation
       for the admission of certain documents relating to Signore’s employment history. The record
       indicates that most of the discussion took place outside of the court reporter’s presence, and
       no other report of the proceedings was included in the record. Kolessar as appellant has the
       burden of providing a sufficient record of the trial proceedings to support a claim of error.

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       Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). In the absence of such a record, it is
       presumed that the trial court acted in conformity with the law with a sufficient factual basis
       for its findings. Id. Any doubts arising from an incomplete record will be resolved against
       the appellant. Id. Also, the record does not indicate that Kolessar requested an evidentiary
       hearing on this issue at trial. When a party participates in a hearing without requesting an
       evidentiary hearing, the right to such a hearing is waived. Blutcher v. EHS Trinity Hospital,
       321 Ill. App. 3d 131, 141 (2001).
¶ 29       For the foregoing reasons, the judgment of the circuit court is affirmed in part and
       reversed in part, with the cause remanded to determine the accrued interest owed on each of
       the arrearages.

¶ 30      Affirmed in part and reversed in part; cause remanded.




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