                                No. 2--05--1233                   filed: 12/14/06
______________________________________________________________________________

                                                IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF                      ) Appeal from the Circuit Court
LAURIE SHARP,                          ) of Lake County.
                                       )
      Petitioner-Appellee,             )
                                       )
and                                    ) No. 04--D--759
                                       )
STEVEN SHARP,                          ) Honorable
                                       ) Joseph R. Waldeck,
      Respondent-Appellant.            ) Judge, Presiding.
______________________________________________________________________________

        JUSTICE O'MALLEY delivered the opinion of the court:

        Pursuant to Supreme Court Rule 304(b)(5) (155 Ill. 2d R. 304(b)(5)), respondent, Steven

Sharp, appeals from the trial court's order finding him in indirect civil contempt for refusing to comply

with a court order directing him to pay temporary child support and maintenance to petitioner, Laurie

Sharp. In challenging the trial court's contempt order, respondent also requests this court to review

the underlying support order. We affirm.

                                           BACKGROUND

        On May 30, 1993, the parties were married. They have one child together, Alexandra, who

was born in 1998. On April 14, 2004, petitioner filed a petition for dissolution of marriage. On

August 31, 2005, the trial court entered an order requiring respondent to pay $5,000 per month in
No. 2--05--1233


temporary child support and maintenance. In September 2005, pursuant to a citation to discover

assets, petitioner received partial payment on the support order through garnishment of respondent's

checking account, in the amount of $2,021.02. On December 5, 2005, petitioner filed a petition for

a rule to show cause, alleging that respondent had disobeyed the support order by failing to make any

payments to petitioner for the months of September, October, November, and December, causing an

arrearage of $17,978.98 (which is $20,000 less the garnished amount of $2,021.02). On December

12, 2005, the trial court found that respondent's failure to comply with the support order was willful

and found respondent in indirect civil contempt. Respondent was sentenced to 180 days in county

jail, which was stayed to give respondent time to satisfy the arrearage. On December 15, 2005,

respondent filed a notice of appeal from the contempt finding. On January 11, 2006, respondent was

remanded to Lake County jail for failure to pay the support arrearage. On January 13, 2006, the trial

court sua sponte ordered respondent's release, stayed the contempt order, and continued the matter

for status. It appears that respondent is still subject to the contempt order.

       The evidence at the contempt hearing established that respondent is the sole income

beneficiary of a trust established by his grandfather. The trust has been respondent's primary source

of income since the parties have been married. In addition to the trust income, respondent earned

approximately $8,500 in 2004 and $6,500 in 2005 from consulting work. The drafter and co-trustee

of the trust, Francis Beninati, testified that the trust qualifies as a spendthrift trust. Based on

respondent's requests for distribution, the trustees would determine every month the minimum amount

that could be distributed to respondent for his living expenses and obligations. Trust distributions

were made to respondent by wire transfer into respondent's checking account until September 2005,

at which time respondent instructed the trustees to send payments directly to him to avoid



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garnishment of the funds. Beninati testified that the fact that the court ordered temporary support

does not bind the trustees to pay those amounts. Indeed, although respondent had requested that the

trust pay the support, the trustees refused to make the distributions, deciding that they were not

required to make distributions for the benefit of petitioner or Alexandra.

       In February 2004, the trust had an approximate value of $600,000. Respondent turned 35

years old in March 2004, and exercised his right to withdraw $200,000 from the trust at that time.

The trustees continued to make monthly discretionary distributions, and between the filing of the

petition for dissolution of marriage in April 2004 and these contempt proceedings in December 2005,

the trustees distributed to respondent directly or for his benefit trust income in excess of $180,000,

which respondent used to pay for rent, Porsche leasing payments and repairs, a Carribean vacation,

attorney fees, and other living expenses. More specifically, from August 16, 2005, through

November 21, 2005, the approximate period where respondent was under the order of support, the

trust distributed $31,000 for his benefit. Furthermore, Beninati testified that it would be within the

trustees' discretion to pay $30,000 to secure respondent's release if he were jailed for contempt.

       The only support payment that petitioner had received at the time of the contempt hearing was

the approximately $2,000 that was garnished from respondent's bank account.

       In his defense, respondent testified that he is unable to make support payments because the

money he receives from the trust is insufficient to pay his expenses, including a large amount of debt.

As such, respondent recently borrowed $8,000 from friends and family to help pay his expenses.

Furthermore, respondent testified that he had spent approximately $2,400 on Alexandra while she was

in his care and paid petitioner $700 for other expenses; however, petitioner denied receiving any

money from respondent other than the proceeds from the citation.



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                                            ANALYSIS

       Before considering the merits of this appeal, we must determine whether to grant respondent's

motion to supplement the record on appeal with a trust document that was entered into evidence in

the divorce proceedings but is not part of the record on appeal. Petitioner has filed both an objection

to the motion to supplement the record and a motion to strike respondent's reply brief. We deny

respondent's motion to supplement the record on appeal and grant petitioner's motion to strike

respondent's reply brief.

       The appellant bears the responsibility of providing a complete appellate record for review.

In re Marriage of Drewitch, 263 Ill. App. 3d 1088, 1096 (1994); People v. Pertz, 242 Ill. App. 3d

864, 905 (1993). Supreme Court Rule 329 (Official Reports Advance Sheet No. 22 (October 26,

2006), R. 329, eff. January 1, 2006) permits the amendment of a record if there are material omissions

or inaccuracies or if the record otherwise is insufficient to present fully and fairly the questions

involved. People v. Thomas, 201 Ill. App. 3d 255, 258-59 (1990). However, where an amendment

would be unfair to a party, the courts have refused to permit the amendment. Thomas, 201 Ill. App.

3d at 259; People v. Span, 156 Ill. App. 3d 1046, 1053 (1987). Such is the case where the appellant's

motion to supplement the record on appeal is filed after all briefing is complete and the opposing

party has not argued the merits of the issue in its brief; in such instances, the opposing party would

be unfairly prejudiced by allowing the motion. Compare Span, 156 Ill. App. 3d at 1053 (court

allowed the defendant's motion to supplement the record even though it was presented after the briefs

were filed because the State would not be unduly prejudiced, its brief having contained an alternative

argument based on the merits of the issue), with Denniston v. Skelly Oil Co., 47 Ill. App. 3d 1054,

1070 (1977) (motion by the defendant to amend the record was denied, where it was filed after the



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plaintiff's brief had already been filed and the plaintiff did not argue the merits of the issue but rather

urged the defendant's procedural default on appeal).

        Here, given the tardiness of respondent's motion to supplement, petitioner would be unduly

prejudiced. Respondent's motion was filed after all briefing was complete. Petitioner specifically

noted that she was precluded from citing to the trust provisions in her brief because the trust

agreement had not been made part of the record on appeal. Therefore, petitioner was precluded from

fully briefing any issue regarding the terms of the trust agreement.

        Respondent had the opportunity to examine the record and ensure that no pertinent material

was omitted. See Pertz, 242 Ill. App. 3d at 905. As respondent argued on appeal that the terms of

the trust served as a defense to the contempt charges, it was incumbent on respondent to ensure that

the trust agreement was included in the record for our review. Permitting respondent to supplement

the record would set a dangerous precedent for allowing piecemeal creation of the record, with

supplemental briefing and rebriefing, derogating the appellate process. Pertz, 242 Ill. App. 3d at 905.

As such, we deny the motion to supplement the record on appeal.

        Inasmuch as respondent is seeking to supplement the record on appeal to rebut petitioner's

argument that the trust in question was not, in fact, a spendthrift trust, we deny the motion because

petitioner has waived this argument. Petitioner disputes that the trust qualifies as a spendthrift trust

for the first time on appeal. The nature of the trust was not in dispute in the trial court, and the

parties and the court proceeded on the basis that this was a spendthrift trust. The theory under which

a case is tried in the trial court cannot be changed on review, and an issue not presented to or

considered by the trial court cannot be raised for the first time on review. Daniels v. Anderson, 162

Ill. 2d 47, 58 (1994). To allow a party to change his or her trial theory on review would weaken the



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No. 2--05--1233


adversarial process and the system of appellate jurisdiction, and could also prejudice the opposing

party, who did not have an opportunity to respond to that theory in the trial court. Daniels, 162 Ill.

2d at 59. Again, petitioner did not contend in the trial court that this was not a spendthrift trust.

Rather, she argued that, despite the spendthrift provisions, respondent was required to use the trust

income to pay his support obligations. Petitioner's argument here, that this was not a spendthrift

trust, constitutes a new theory that she never raised below. Thus, the argument is waived.

       Next, we consider petitioner's motion to strike respondent's reply brief. The reply brief was

due on June 15, 2006. Petitioner contends that the reply brief was untimely filed because, although

the reply brief was originally filed with the court on June 15, 2006, the brief was returned to

respondent for failure to sign the "notice of filing" and therefore was not properly filed by the due

date. (The reply brief bears two stamps from the clerk of the appellate court: a "filed" date of June

15, 2006, and a "received" date of June 19, 2006.) Petitioner further alleges that she was not served

with a copy of the reply brief or, for that matter, any of the legal papers filed by respondent in this

case. We note that the court's copy of respondent's motion to supplement the record on appeal is not

signed and the affidavit of service is not completed showing the date the motion was served on

petitioner's counsel. This lends credibility to petitioner's allegations that respondent has been

recalcitrant in serving papers on opposing counsel.

       As respondent's reply brief bears the clerk's filing stamp date of June 15, 2006, it is

questionable whether the filing would be considered untimely. See 107 Ill. 2d R. 373 ("the time of

filing records, briefs or other papers required to be filed within a specified time will be the date on

which they are actually received by the clerk of the reviewing court"). However, respondent has

failed to comply with Supreme Court Rule 344(a), which mandates that copies of briefs must be



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served upon each party and that "[p]roof of service shall be filed with all briefs and abstracts."

Official Reports Advance Sheet No. 22 (October 27, 2004), R. 344(a), eff. January 1, 2005.

        Supreme court rules " 'are not aspirational. They are not suggestions. They have the force

of law, and the presumption must be that they will be obeyed and enforced as written.' " Estate of

Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494 (2002), quoting Bright v. Dicke, 166 Ill.

2d 204, 210 (1995). Indeed, we expect litigants to comply with the supreme court rules. The rules

"would have little force if the legal community perceived that we, as a court, do not enforce the rules

or tailor them to fit the exigencies of the moment. Accordingly, we must emphasize that the supreme

court rules are rules of procedure and that it is incumbent upon litigants to follow them." Roth, 202

Ill. 2d at 494-95.

        That said, the failure to serve an opposing party does not deprive the appellate court of

jurisdiction, and the filing will not be stricken unless there is evidence of harm or prejudice to that

party. See Lachona v. Industrial Comm'n, 87 Ill. 2d 208, 211-12 (1981) (a party is not prejudiced

by the failure to serve on her a copy of the notice of appeal if the party could file appellate briefs and

argue orally); In re Marriage of Collins, 154 Ill. App. 3d 655, 658 (1987). Here, petitioner has been

prejudiced by respondent's failure to serve her with a copy of the reply brief, as she did not have an

opportunity to review respondent's argument or contest any inaccuracies or misstatements in the reply

brief. Moreover, it would be improper for this court to consider material that has never been

presented to or considered by the opposing party. Thus, because of the prejudice to petitioner, we

grant the motion to strike the reply brief. Nonetheless, we have reviewed both the opening briefs and

the reply brief, and we observe that the opening briefs have adequately addressed all of the legal and




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No. 2--05--1233


factual arguments properly presented for our review. Thus, the reply brief would not have aided our

decision in this case.

           On the merits, respondent argues that, because his sole source of income derived from a

spendthrift trust and "the terms of the trust expressly prohibit the use of the trust's income and assets

to pay support and maintenance," the underlying support order is invalid. Furthermore, respondent

argues that because he had no other income from which to pay the support, his failure to pay was not

willful.

           The review of a contempt finding necessarily requires review of the order upon which it is

based. In re Marriage of Nettleton, 348 Ill. App. 3d 961, 968 (2004). Thus, we have jurisdiction to

review the August 31, 2005, order compelling respondent to pay temporary maintenance and child

support to petitioner.

           The granting of temporary child support and maintenance is within the sound discretion of

the trial court, and such awards will not be overturned on appeal absent a clear abuse of discretion.

In re Marriage of Deem, 328 Ill. App. 3d 453, 457 (2002). We cannot, however, resolve this issue

for respondent because he has failed to provide us with a report of proceedings from the August 31,

2005, hearing at which the court entered the support order. The appellate court is limited to

reviewing the material before the trial court and deciding whether it is sufficient to support the

judgment. The appellant is not entitled to have the judgment reversed without presenting a record

that supports his claim that the trial court erred. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92

(1984). Thus, he has the responsibility to ensure that the record contains a report of proceedings that

includes "all the evidence pertinent to the issues on appeal." 166 Ill. 2d R. 323(a). Alternatively, the

appellant may prepare a bystander's report (166 Ill. 2d R. 323(c)), or the parties can present an agreed



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statement of facts (166 Ill. 2d R. 323(d)). Respondent has failed to provide this court with any

evidence of what transpired at the hearing. We simply have the support order entered on August 31,

2005, directing respondent to pay petitioner $5,000 a month as temporary child support and

maintenance, commencing September 1, 2005. Any doubts arising from an incomplete record must

be resolved against the appellant. Foutch, 99 Ill. 2d at 392. Thus, because the record does not allow

us to know what occurred at this hearing or the basis for the court's support order, we must presume

that the court followed the law and had a sufficient factual basis for its ruling. See Foutch, 99 Ill. 2d

at 391-92.

        Next, respondent argues that the trial court erred in finding him in contempt for failing to pay

child support and maintenance. Respondent claims that he adequately established that he was

financially unable to make the payments and presented a valid defense, in that his sole source of

income derived from a spendthrift trust the assets of which were unavailable to pay child support and

maintenance. We disagree.

        At the outset, we note that the trial court's contempt order was properly characterized as

one for civil, and not criminal, contempt. The test for classifying contempt is the totality of the

circumstances, as these influence the court's purpose to either punish the contemnor or coerce

compliance with a court order. People v. Penson, 197 Ill. App. 3d 941, 945 (1990). Contempt

orders may best be described as sui generis, and may partake of the features of either criminal or civil

contempt. People v. Warren, 173 Ill. 2d 348, 368 (1996). "Although there has been continuing

debate over the difficulty in distinguishing between criminal and civil contempt [citations], there are

particular features [that] determine the nature of each." Warren, 173 Ill. 2d at 368.




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         The primary determinant of whether contempt proceedings are civil or criminal is the purpose

for which the contempt sanctions are imposed. Betts, 200 Ill. App. 3d at 43. Generally, civil

contempt is recognized as a sanction or penalty designed to compel future compliance with a court

order. Warren, 173 Ill. 2d at 368. As such, civil sanctions are considered to be coercive and

avoidable through obedience. Warren, 173 Ill. 2d at 368. Criminal contempt, on the other hand, is

punitive and is instituted to punish, as opposed to coerce, a contemnor for past contumacious

conduct. Warren, 173 Ill. 2d at 368-69.

         Civil contempt proceedings have two fundamental attributes: (1) the contemnor must be

capable of taking the action sought to be coerced, and (2) no further contempt sanctions are imposed

upon the contemnor's compliance with the pertinent court order. Betts, 200 Ill. App. 3d at 44. The

conduct sought to be coerced by civil contempt proceedings often confers benefits on opposing

parties in civil litigation. Betts, 200 Ill. App. 3d at 44.

         In distinguishing the purposes of criminal and civil contempt sanctions, it may be helpful to

view the sanctions as either retrospective or prospective. See Betts, 200 Ill. App. 3d at 46. Criminal

sanctions are retrospective in that they seek to punish a contemnor for past acts that he cannot now

undo. Betts, 200 Ill. App. 3d at 46. Civil sanctions are prospective in that they seek to coerce

compliance at some point in the future. Betts, 200 Ill. App. 3d at 46. That point in the future might

occur upon immediate compliance in open court or upon compliance whenever the contemnor

chooses to use his "key"--namely, compliance--to open the jailhouse door. Betts, 200 Ill. App. 3d

at 46.

         In the current case, the trial court sentenced respondent to 180 days in jail, set a "purge

amount," and stayed enforcement of the order until December 29. Thus, respondent held the



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"key" to his cell, and he could have purged the contempt at any time (including before or after the

stay of enforcement expired). The court's order calls for no further action to be taken against

respondent once he achieves compliance by paying the purge amount, and therefore its purpose

is not to punish him prospectively but rather to coerce his compliance. Having determined that

the classification of the contempt order as civil is correct, we move to consider respondent's

arguments related to the trial court's contempt ruling.

        Whether a party is guilty of contempt is within the discretion of the trial court, and we will

not disturb its decision on appeal unless there has been an abuse of discretion. In re Marriage of

Allen, 265 Ill. App. 3d 208, 213 (1994). The failure to make support payments as required by court

order is prima facie evidence of contempt. In re Marriage of Hilkovitch, 124 Ill. App. 3d 401, 420

(1984). The burden then rests on the alleged contemnor to show that his noncompliance was not

willful or contumacious and that he has a valid excuse for his failure to pay. Hilkovitch, 124 Ill. App.

3d at 420.

        We find no abuse of discretion. The record contains sufficient evidence to support the court's

finding that respondent's failure to make the required support payments was willful and contumacious.

Respondent had not made any required support payments voluntarily, and the only money that

petitioner received in satisfaction of the support order was approximately $2,000, which was

garnished from respondent's bank account. Respondent has been delinquent on payments since the

support order was entered. Thus, a prima facie showing of contempt was made. Hilkovitch, 124 Ill.

App. 3d at 420. Furthermore, respondent failed to rebut the prima facie case of contempt, as he did

not have a valid excuse for his failure to comply with the court order. There was evidence that

respondent has received over $30,000 since the entry of the support order and has not applied any



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part of that money to satisfy his support obligations. He did not show that he was unable to pay the

support or that he was unaware of his obligation to do so. Rather, he attempted to excuse his

recalcitrance by showing that the majority of his income is derived from a spendthrift trust, which by

its very terms is not subject to support obligations.

       First, we must ascertain whether the disbursements from the spendthrift trust are considered

income for purposes of child support and maintenance determinations under the Illinois Marriage and

Dissolution of Marriage Act (the Act) (750 ILCS 5/505 (West 2004)). We find that the distributions,

despite the "spendthrift" provision shielding respondent's interest from the claims of creditors and

restricting alienation, do constitute income.

       Income is something that comes in as an increment or addition, a gain or profit that is usually

measured in money, and increases the recipient's wealth. In re Marriage of Rogers, 213 Ill. 2d 129,

136 (2004); In re Marriage of Worrall, 334 Ill. App. 3d 550, 553-54 (2002). It is defined as any form

of payment to an individual, regardless of its source, and regardless whether it is nonrecurring.

Rogers, 213 Ill. 2d at 138-39; In re Marriage of Lindman, 356 Ill. App. 3d 462, 466 (2005). The Act

is to be liberally construed, and any resources available to the parties are to be used to promote the

underlying purposes of the Act, including making reasonable provisions for spouses and minor

children during and after litigation. 750 ILCS 5/102(5) (West 2004); In re Marriage of Brand, 123

Ill. App. 3d 1047, 1052 (1984). The Act creates a rebuttable presumption that all income, unless

specifically excluded by the statute, is income for support purposes. Department of Public Aid ex rel.

Jennings v. White, 286 Ill. App. 3d 213, 218 (1997).

       Here, the trust distributions received by respondent represented a monetary gain that

increased his wealth and facilitated his ability to support his wife and child. See Rogers, 213 Ill. 2d



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at 137. Therefore, the trust disbursements qualify as "income" within the meaning of the Act. The

fact that respondent's monthly distributions may change in the future does not alter the result, for the

relevant focus is the parents' economic situation when the child support and maintenance

determinations are made by the court. Rogers, 213 Ill. 2d at 138.

        Furthermore, nothing in the spendthrift trust provisions defeats this finding. Spendthrift trust

provisions restrict the beneficiary's ability to alienate and the beneficiary's creditors' ability to attach

the trust corpus. In re Rolfe, 34 B.R. 159, 161 (Bankr. N.D. Ill. 1983). However, once trust income

is paid to the beneficiary, the income is no longer subject to the protection of the spendthrift

provisions in the trust, and the spendthrift provisions are not effective to shelter the trust assets from

the beneficiary's creditors. In re Hawley, No. 02-83674, slip op. at 5 (Bankr. C.D. Ill. February 20,

2004); Rolfe, 34 B.R. at 161 (once funds are transferred by the trustee to the beneficiary under the

terms of the trust, they become the legal property of the beneficiary and are transferable by him and

leviable by his creditors). For where a trust beneficiary receives a distribution, this unfettered right

of control negates any future effect of the spendthrift clause. Hawley, slip op. at 5. Since the

rationale that prevents creditors from reaching the trust assets is that the beneficiary cannot reach

them, it would "strain both logic and the law" to continue to enforce a spendthrift clause after the

beneficiary had access to the trust assets. In re McCoy, 274 B.R. 751, 766 (Bankr. N.D. Ill. 2002).

Thus, the trust income, once distributed to respondent under the terms of the trust, could be used for

any purpose, including the payment of his child support and maintenance obligations. Rolfe, 34 B.R.

at 161; see also White v. Williams, 172 Ill. App. 630, 636-37 (1912).




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       Respondent contends that the trial court improperly considered his trust income in

determining his ability to pay his support obligations, basing his argument upon section 2--1403 of

the Code of Civil Procedure, which states:

               "No court, except as otherwise provided in this Section, shall order the satisfaction

       of a judgment out of any property held in trust for the judgment debtor if such trust has, in

       good faith, been created by, or the fund so held in trust has proceeded from, a person other

       than the judgment debtor.

               The income or principal of a trust shall be subject to withholding for the purpose of

       securing collection of unpaid child support obligations owed by the beneficiary ***." 735

       ILCS 5/2--1403 (West 2004).

Respondent argues that a trust may be invaded only for satisfaction of past-due child support and that

to require him to pay current support obligations, when that support would have to be paid from the

proceeds from his trust, violates this section. We disagree.

       This section has been interpreted as allowing the garnishment of income and principal from

spendthrift trusts to collect past-due child support, but prohibiting an order of withholding against

a trust for future child support payments. In re Marriage of Chapman, 297 Ill. App. 3d 611, 618

(1998). Thus, it appears that petitioner could have sought garnishment of funds from the spendthrift

trust to satisfy the past-due child support; however, petitioner did not seek such relief in this case.

In any event, as petitioner did not seek an order of withholding against the trust for future child

support payments, this section has no application here. The support order here did not compel that

a judgment be satisfied through garnishment or withholding from a spendthrift trust to satisfy the

obligations, but rather was a support order entered against respondent personally.



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        The case law makes clear that it was the legislature's intent to reach assets in spendthrift trusts

where the beneficiaries of those trusts are judgment debtors in actions for child support arrearages,

for the legislature intended to remedy the evil of child support obligations falling on the shoulders of

only one parent where the other parent fails to fulfill his obligation of support. In re Support of Matt,

105 Ill. 2d 330, 334 (1985); Chapman, 297 Ill. App. 3d at 616-17; In re Marriage of Stevens, 292 Ill.

App. 3d 994, 1000-01 (1997). It is the public policy in this state to ensure that child support judgments

are enforced by all available means. Matt, 105 Ill. 2d at 334; Stevens, 292 Ill. App. 3d at 1000.

        Moreover, respondent's argument that he was unable to pay support because he spent the trust

money on his own living expenses does not relieve him of his obligation to pay support. The defense

of poverty and misfortune for failure to make support payments has been found applicable only in the

most extreme cases, notably those in which a party has no money and no way of getting money to

meet support obligations. People v. Stanley, 60 Ill. App. 3d 909, 912 (1978). Further, financial

inability to comply with an order must be shown by definite and explicit evidence, and that burden

is not met by general testimony with regard to financial status. In re Marriage of Ramos, 126 Ill.

App. 3d 391, 398 (1984). The party must show, with reasonable certainty, the amount of money he

has received since the order was entered and that it has been disbursed in the payment of expenses

that under the law he should pay before making any payment on the support decree. Ramos, 126 Ill.

App. 3d at 398. It is insufficient to merely say that all of the contemnor's money was spent to pay

living expenses. Ramos, 126 Ill. App. 3d at 399-400.

        Here, respondent testified that he spent the trust money on monthly leasing payments and

repairs for his Porsche, attorney fees, $2,100 a month in rent, and other unidentified expenses totaling

$31,000, while he was neglecting child support and maintenance payments in a lesser amount.



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Moreover, respondent borrowed over $8,000, none of which he applied toward his support

obligations. Respondent chose to spend the money he received monthly on his own needs rather than

on maintenance and child support payments; he must suffer the consequences of that choice. As

respondent was unable to account for a large portion of the money he admittedly received, or show

that these payments had to be made before he paid his support obligations, his testimony was

inadequate to sustain his burden of showing that he was financially unable to make the required

payments. Under these circumstances, we cannot say that the finding of willful contempt was an

abuse of discretion.

       Lastly, we reject respondent's argument that the contempt order was improper because

respondent had no ability to purge his sentence. A party held in civil contempt must be given the keys

to his or her cell, meaning that the contempt order should give the contemnor the ability to purge at

any time. In re Marriage of Kneitz, 341 Ill. App. 3d 299, 307 (2003). The contempt order here

makes specific provisions for respondent to purge his contempt. Also, at the hearing, the evidence

established that it was within the trustees' discretion to pay the sum necessary to secure respondent's

release from jail if he were to be incarcerated. Thus, the purging provision was based on respondent's

ability to pay. See Ramos, 126 Ill. App. 3d 400-01. Accordingly, we affirm the contempt finding.

       For the foregoing reasons, we affirm the underlying support order. We also find that the trial

court did not abuse its discretion when it found that respondent's failure to pay child support and

maintenance was willful and contumacious, and we affirm the contempt finding. Thus, the judgment

of the circuit court of Lake County is affirmed.

       Affirmed.

       BOWMAN and GILLERAN JOHNSON, JJ., concur.



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