No. 1-16-0071 Fifth Division December 23, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

In re PARENTAGE OF I.I., a Minor ) Appeal from the Circuit Court ) of Cook County. (Nanina Lavallais n/k/a Carraway, ) Petitioner-Appellee, ) No. 12 D 50214 ) v. ) The Honorable

) James Kaplan,

Michael Irvin, ) Judge Presiding.

Respondent-Appellant). )

)

______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.

OPINION

¶1 The instant appeal arises from the trial court’s grant of Nanina Carraway’s petition to

modify child support, in which the trial court ordered respondent, Michael Irvin, to increase

the amount of child support he was paying from $100 per month to $3000 per month.

Respondent appeals, arguing (1) that the trial court erred in denying his motions for a

continuance, which resulted in respondent’s absence from the second day of the hearing,

(2) that the trial court erred in denying his motion to reopen proofs to provide evidence of his

income, (3) that the trial court erred in ordering respondent to pay $3000 per month in child

support and in ordering the payment of retroactive support, and (4) that the trial court erred in No. 1-16-0071

requiring respondent to provide health insurance for the child. For the reasons that follow, we

affirm in part but vacate the trial court’s judgment concerning the retroactivity of support.

¶2 BACKGROUND

¶3 On January 25, 2012, petitioner, Nanina Lavallais (n/k/a Carraway), filed a parentage

action under the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West

2010)) against respondent, Michael Irvin, regarding their child I.I., who was born on July 27,

2007. 1 On March 2, 2012, petitioner filed a petition for support against respondent, alleging

that respondent was not contributing to the support of their child to the extent of his financial

ability. The petition did not state the amount of support respondent had been paying, nor did

it state what amount petitioner was seeking. On March 13, 2013, after respondent repeatedly

failed to respond to the petition, the trial court entered a temporary default uniform order for

support, which ordered respondent to pay $100 per month beginning April 1, 2013. 2 In

addition, the order reserved the issue of medical insurance coverage, as well as retroactive

child support from January 1, 2011, through March 31, 2013. On August 16, 2013, the court

ordered that the entirety of the temporary support order be made permanent. Up to this point,

respondent had not been involved in the case.

¶4 On August 29, 2014, respondent finally filed his initial appearance in the matter, as well

as a petition for joint custody. On October 9, 2014, petitioner filed a petition to modify child

support, alleging that, upon information and belief, respondent’s income exceeded $300,000

per year. This number was based on the assertion that respondent was a part owner of 1 The record on appeal does not contain a court finding of paternity, but both parties signed a voluntary acknowledgment of paternity the day after the child was born, and there is no dispute that respondent is the child’s father. 2 The assistant State’s Attorney representing petitioner (see 750 ILCS 45/18(b) (West 2010)) at the time imputed respondent’s monthly income as $500. Child support for one child is calculated based on 20% of the monthly income of the obligor (750 ILCS 5/505(a)(1) (West 2010)), which resulted in the $100-per-month child support order. 2

No. 1-16-0071

Billboard Live, a nightclub, and was also the chief executive officer of an Amateur Athletic

Union (AAU) basketball team called Mac Irvin Fire. 3 Petitioner argued that child support

should be modified to be based on respondent’s actual income, rather than the $500 monthly

income amount imputed to him during the temporary support hearing on March 13, 2013.

She also asked the court to retroactively modify the child support in accordance with

respondent’s actual income. On November 25, 2014, respondent filed a response to

petitioner’s petition to modify child support, in which he denied the petition’s allegations.

¶5 Up to this point, respondent had not complied with petitioner’s discovery requests. On

December 23, 2014, petitioner filed a petition for rule to show cause against respondent for

failure to comply with Cook County Circuit Court Rule 13.3.1 and Illinois Supreme Court

Rule 214. The record indicates that respondent submitted an unsigned and non-notarized

Rule 13.3.1 disclosure form in February 2015 that had all zeroes for his income.

¶6 On April 2, 2015, the petition to modify child support, petition for rule to show cause,

and respondent’s petition for joint custody were again continued to April 9, 2015. In the

continuance order, the court also required respondent to pay petitioner a $500 lump sum for

past-due child support payments and furnish a signed and notarized financial disclosure

statement pursuant to Cook County Circuit Court Rule 13.3.1 before the hearing on April 9,

2015. Respondent complied with both terms of the court order. According to respondent’s

signed and notarized financial disclosure statement, his gross income for the year 2014 was

$7200, which was made up of gifts from friends and family. He stated that his 2015 income

up to March 2015 was $1880, although he did not specify if it was again made up of gifts.

3 The AAU is a nonprofit multisport organization dedicated to the promotion and development of amateur sports and physical fitness programs. Amateur Athletic Union, What is the AAU? http://www.aausports.org/FAQs (last visited Dec. 7, 2016). 3

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After adding in his $100-per-month expense for child support, his total monthly living

expenses were $627. In the assets section, his only listed bank account was a checking

account with U.S. Bank, which had a value of $0 to $20. He did not list any investment

accounts in the investment accounts and securities section. The only business interest he

listed was a 25% member interest in Olympian Group, LLC.

¶7 The parties came before the court for hearing on the pending motions on April 9, 2015.

During the hearing, respondent testified to his financial situation on direct examination from

petitioner’s counsel. According to the agreed statement of facts from the hearing, 4 respondent

testified that he lived rent-free at his mother’s house. He had not had a regular job or income

since 1998 and was still unemployed. He served as the head basketball coach for the Mac

Irvin Fire AAU team but did not receive any income for his service. He relied on his mother,

fiancée, and occasionally his brother for financial assistance. He was looking for employment

solely in the field of basketball. Respondent had been a part of Antoine Walker’s 5 entourage

until 2010, when Walker declared bankruptcy. During respondent’s time in the entourage,

Walker had given him two vehicles. He admitted that he had invested approximately $40,000

in Billboard Live in 2011 or 2012 but testified that he was not receiving any income from the

investment and was no longer involved with the nightclub. Respondent testified that he “does

not have any interest in any other company or organization.”

4 There was no transcript of this hearing in the record. All information from the hearing on April 9, 2015, was taken from the parties’ agreed statement of facts. The same is true for the hearings on July 7, July 9, and July 31. To avoid confusion concerning the court proceedings, we indicate where a transcript was available and where the facts were taken from the agreed statement of facts. 5 Antoine Walker is a former professional NBA basketball player. 4

No. 1-16-0071

¶8 The agreed statement of facts indicates that during examination of respondent, petitioner

submitted a number of social media photographs of respondent as exhibits. 6 Respondent’s

counsel “made numerous objections to the photographs, arguing that they allowed an

inappropriate contextual picture to be painted without rebuttal.” The court denied these

objections, stating that it “was able to maintain the photos in the right context and that

[respondent] would be given an opportunity to address any misapprehensions in rebuttal.”

According to the agreed statements of facts, one photograph depicted respondent with a large

stack of money and a caption reading “ ‘Billboard Live!! About to have me some fun!!’ ”

According to the agreed statement of facts, the photograph was taken at a Billboard Live

event at least one year prior to the hearing date, and the money did not belong to respondent.

Other photographs depicted social media posts in which respondent talked about Christmas

gifts, obtaining a pedicure, and conducting business, among other things. None of these

social media posts was more recent than 32 weeks before the April 9 hearing. The record

does not show whether respondent was asked to explain these photographs. Due to the late

hour, the April 9 hearing was suspended to be continued at a later date. At this point,

respondent had not finished giving his testimony on direct examination from petitioner’s

counsel.

¶9 On May 12, 2015, the trial court entered an order continuing the hearing to July 9, 2015.

¶ 10 On May 15, 2015, petitioner filed a discovery request to respondent regarding documents

related to respondent’s alleged business affiliation with TMT Sportz, LLC, an Indiana

corporation. On June 24, 2015, petitioner filed a motion to compel respondent’s discovery

6 The agreed statement of facts does not expressly indicate that these exhibits were admitted into evidence. However, the parties discuss them in their briefs as though they were, and we do the same in discussing them on appeal. 5

No. 1-16-0071

compliance, indicating that she had already sent a Supreme Court Rule 201(k) letter to

respondent regarding discovery compliance. On July 2, 2015, the court heard petitioner’s

motion to compel and ordered respondent to comply with petitioner’s discovery request by

July 6, 2015. The court order from the status hearing on July 7, 2015, which is detailed

further below, indicates that respondent finally complied with petitioner’s discovery request.

¶ 11 According to the agreed statement of facts, on the trial readiness status date on July 7,

2015, respondent expressed that he had a conflict with the July 9 hearing date and would not

be able to be present in court. 7 According to the agreed statement of facts, respondent “did

not disclose or explain his sudden unavailability.” Respondent’s counsel requested that the

hearing be rescheduled, but the court denied the request. No reasoning for the court’s denial

is provided in the agreed statement of facts for the July 7 hearing. The court order from this

hearing notes that petitioner communicated her readiness to move on with the trial.

¶ 12 Respondent was not present during the hearing on July 9, 2015. According to the agreed

statement of facts for this hearing, respondent’s counsel made an oral motion to continue the

hearing to a later date so respondent could continue giving his testimony but was again

denied by the court. Petitioner’s counsel “presented documentary evidence and argument” 8

that respondent had a business relationship with TMT Sportz, LLC, an Indiana corporation,

and was a registered agent for the corporation. Respondent could be viewed in photographs

on TMT Sportz’s website from the 2014 “Chicago Summer Jam” basketball tournament,

which cost $595 as a registration fee. Respondent was also listed on the TMT Sportz website

as the contact person for the event. Respondent’s business relationship with TMT Sportz had 7 Although respondent did not explain his reasoning for his conflict with the July 9 hearing at the July 7 court date, the hearing transcript from October 14, 2015, indicates that he had planned to be in Georgia in order to assist with a youth basketball camp. 8 The agreed statement of facts does not expressly indicate that this evidence was admitted, but the parties discuss the evidence in their briefs as though it was, and we do the same in discussing it on appeal. 6

No. 1-16-0071

not been disclosed on respondent’s Rule 13.3.1 financial affidavit. The record does not

contain any testimony regarding the extent of respondent’s involvement with TMT Sportz.

Part of the evidence submitted by petitioner’s counsel was TMT Sportz’s unsigned 2014 tax

return, 9 which stated that its gross income for the year was $50,192, of which $41,900 was

spent on “outside services.” After petitioner’s counsel presented this evidence, respondent’s

counsel made an oral motion to allow respondent to give his testimony via the telephone,

explaining that respondent was out of the state, which was denied. The court found that

respondent’s failure to appear created a negative inference against him and permitted the

presumption that he believed that the evidence against him would be unfavorable. The agreed

statement of facts indicates that the court “found a presumption that ‘outside services’ as

listed on TMT Sportz’[s] tax documents included, at least in part, compensation for

[respondent’s] services” and that the Chicago Summer Jam event was an income-producing

event that was not previously disclosed on respondent’s Rule 13.3.1 financial statement. The

court did not provide any independent basis for drawing this presumption, other than the

previously expressed negative inference against respondent.

¶ 13 Petitioner’s counsel also “presented documentary evidence and argument” of bank

statements as evidence for two bank accounts that respondent maintained with Chase Bank

that were not disclosed in his signed Rule 13.3.1 financial disclosure statement, in which he

had deposited or transferred $28,500.01 in May 2014, $25,850.01 in July 2014, and more

than $87,000 between October 2014 and February 2015. The record does not contain any

evidence that explains where the deposits came from or what expenses they were used for.

Respondent’s counsel objected to all of the documentary evidence submitted by petitioner’s

9 The agreed statement of facts does not identify the exhibits by number. However, the record contains a stipulated list of exhibits, one of which is the TMT Sportz 2014 tax return. 7

No. 1-16-0071

counsel because there was no person who could authenticate the documents, but the court

overruled the objection and admitted all of the documents into evidence.

¶ 14 Petitioner also testified during the July 9 hearing. On direct examination by her own

counsel, petitioner testified that beginning in 2007, respondent paid for an apartment and

living expenses for petitioner and the child and also provided her with a vehicle to drive.

Respondent provided approximately $3500 per month in child support until 2011. After

2011, petitioner and respondent agreed that respondent would pay $1000 per month for child

support. However, respondent did not adhere to the agreement, and petitioner had been the

child’s sole support ever since.

¶ 15 On cross-examination by respondent’s counsel, petitioner testified that respondent had

paid for her to attend and graduate from college. From October 2013 through April 2015,

respondent paid a total of $4095.10 in child support. After cross-examination ended, the

court asked respondent’s attorney to present any witnesses or evidence on respondent’s

behalf, but the attorney “could not add anything further in light of [respondent’s] absence,”

and the hearing was continued to July 31, 2015, for closing arguments.

¶ 16 Also on July 9, 2015, petitioner filed a motion for direct and indirect criminal contempt

and for sanctions against respondent. 10 In the motion, petitioner detailed facts supporting the

allegation that respondent had been engaging in fraud throughout the course of litigation

through his attempts to mislead the court about his finances and his repeated failure to

comply with discovery rules. The alleged facts included, among others, respondent’s failure

to disclose his active bank accounts, income from Billboard Live, and affiliation with TMT

Sportz.

10 This motion itself is not at issue on appeal. It is included because some facts within the motion provide helpful context for the issues on appeal. 8

No. 1-16-0071

¶ 17 On July 31, 2015, respondent filed his response to petitioner’s motion for direct and

indirect criminal contempt. In the response, he admitted that he was listed as a registered

agent for TMT Sportz but stated that he had never received any income from the business.

Respondent denied that he omitted his bank account information from his signed Rule 13.3.1

financial disclosure statement. He reiterated that, at that point, he was receiving income of

approximately $500 per month.

¶ 18 Closing arguments on petitioner’s petition to modify child support and respondent’s

petition for joint custody were heard on July 31, 2015, and according to the agreed statement

of facts from the hearing, the court found that respondent’s testimony significantly lacked

credibility. Specifically, the court found:

“Mr. Irvin’s testimony lacks credibility to a significant degree, especially as to the

following:

a. Mr. Irvin’s testimony regarding not receiving Billboard income and the

company being dissolved this year, though filled to capacity;

b. Mr. Irvin’s mother and fiancé[e] support him and his fiancé[e] pays all his

expenses;

c. Mr. Irvin has no assets and all he does is coach a team for no pay;

d. Mr. Irvin is not authorized to incur expenses on the Mac Irvin Fire credit card;

e. Mr. Irvin’s disclosure filed pro se, and his updated disclosure that was not

complete;

f. Others paid for Mr. Irvin to attend the NCAA finals with Duke University or go

to Georgia.”

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¶ 19 Among other rulings irrelevant to the issues on appeal, the court granted petitioner’s

petition to modify child support and set the amount for respondent to pay at $3000 per

month. 11 The court explained that this amount was based on petitioner’s testimony, as well as

a presumed income from TMT Sportz and the bank statements showing that tens of

thousands of dollars ran through respondent’s bank account. The child support was

retroactively applied from January 1, 2011. Finally, the court ruled that respondent must

provide the child with an adequate health insurance policy.

¶ 20 On August 27, 2015, respondent filed a motion to reopen proofs in order to determine his

“actual income.” In the motion, respondent argued that there was insufficient factual

evidence of his income to support the court’s modification of the child support to the amount

of $3000 per month. Specifically, respondent pointed out that there was no testimony

explaining the bank statements submitted by petitioner’s counsel that would help determine

“whether any of the deposits were income or whether the expenses would affect any of the

deposits.” Respondent argued that “[e]quity dictates that proofs should be reopened to

require the Petitioner to provide evidence to carry her burden of proving [respondent’s]

income and for [respondent] to present evidence in his defense.”

¶ 21 On October 14, 2015, the court denied respondent’s motion to reopen proofs. According

to the hearing transcript, the court found that respondent’s actions during the course of the

litigation diminished his credibility, rendering his actual income indeterminable from the

evidence. Relying on section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage

Act (Marriage Act) (750 ILCS 5/505(a)(5) (West 2010)), the court found that since it could

11 According to the transcript from the hearing on October 14, 2015, petitioner’s testimony from July 9 indicated that the total needs for raising the child amounted to $3000 per month. This fact is not directly expressed in the agreed statement of facts from the July 9 hearing date. 10

No. 1-16-0071

not determine respondent’s actual income from the evidence, it was necessary to deviate

from the statutory guidelines for determining child support and enter a needs-based order. In

doing so, the court found petitioner’s testimony from the July 9 hearing—that she needed

$3000 per month to cover the child’s expenses—credible and reasonable and found that it

“had no alternative but to enter an award based on that amount because [respondent] failed to

appear and give testimony.” The court found that it had not abused its discretion by deviating

from the guidelines for determining child support based on income. Despite argument from

respondent’s counsel, the court, relying on case law, 12 stated that it did not need to explain its

basis for the needs-based order. The transcript also indicates that respondent’s counsel

argued that the court had mistakenly construed respondent’s motion as a motion to

reconsider, instead of a motion to reopen the proofs:

“THE COURT: A motion to reconsider allows a party to bring before the Court

newly discovered evidence, changes in the law, or errors in the Court’s prior application

of existing law. ***

***

RESPONDENT’S COUNSEL: With all due respect, [Y]our Honor *** We didn’t

file a motion to reconsider. *** We argued a motion to reopen the proofs.

THE COURT: And I denied it.

RESPONDENT’S COUNSEL: It has nothing to do—but you cited a motion to

reconsider. *** That’s not the same motion.

THE COURT: I understand.”

12 The court noted that it was relying on In re Marriage of Takata,

(1999), and In re Marriage of Severino,

(1998). 11

No. 1-16-0071

¶ 22 On December 7, 2015, the parties came before the court for the court’s entry of a custody

judgment disposing of all pending issues. According to the hearing transcript, respondent

argued against the retroactive application of the modified child support award to January 1,

2011. Specifically, respondent argued that petitioner filed her petition to modify child

support on October 9, 2014, and that he was not put on due notice that any modification

would be applied retroactively beyond that date. After hearing arguments from respondent’s

counsel, the court amended the starting date for the retroactive child support from January 1,

2011, to September 1, 2013, making the total amount of past-due support $72,000. The court

determined that the permanent child support order from August 2013, as well as evidence

admitted during trial, put respondent on necessary notice that he could be subjected to

retroactive changes in child support from that date. The court also found that, with respect to

health insurance, “[h]e can go get a policy and pay for it or he can reimburse mom if she does

have a policy. *** That is his obligation.”

¶ 23 The court entered a custody judgment on the same day. With respect to its findings of

fact, the court found:

“A. FATHER failed to appear in court on July 9, 2015, for the final day of

testimony in this case.

B. Based on FATHER’s failure to appear for trial on July 9, 2015, failure to

disclose assets and income, and the inconsistency in his testimony compared with the

physical evidence, it is presumed by the Court that the evidence and testimony

FATHER could have presented would have been adverse to him. [Citation.]

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C. Over FATHER’s objections, the Court finds that FATHER’s first financial

disclosure statement tendered to MOTHER’s counsel during his pro se representation,

while not notarized, had zeroes in all blanks.

D. FATHER’s second financial disclosure statement tendered to MOTHER’s

counsel was notarized and while it included new information regarding his assets and

liabilities it did not include his interest in TMT Sportz, Inc., nor did it disclose his

Chase Bank account.

E. FATHER’s testimony that he has not had a job since 1998, that he is supported

solely by his mother and fiancé[e], that he has no assets, and that his only job is as a

volunteer coach for the Mac Irvin Fire, is contrary to the evidence.

F. Consistent with the Court in In re the Marriage of Leff, [

(1986)], by virtue of FATHER’s failure to appear, failure to disclose assets and

income, and the inconsistency in his testimony compared with the physical evidence,

the Court finds that FATHER’s testimony lacks all credibility.

G. While MOTHER testified that the needs of the child totals $3,000.00 per

month, based on FATHER’s lifestyle and incredible testimony, the Court finds that

FATHER’s income could substantiate a child support award in excess of $3,000.00

per month. [Citation.]”

¶ 24 On January 6, 2016, respondent filed a notice of appeal, and this appeal follows.

¶ 25 ANALYSIS

¶ 26 On appeal, respondent raises a number of issues. Respondent argues that (1) the trial

court should have granted his motions for continuance of the July 9, 2015, hearing date,

(2) the trial court should have granted his motion to reopen the proofs to present evidence of

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No. 1-16-0071

his income since he was not present at the July 9 hearing date, (3) the trial court erred in its

determination that petitioner should receive $3000 per month in child support, (4) the trial

court erred in its retroactive application of the modified child support order, and (5) the trial

court erred in requiring him to provide health insurance for the child because petitioner’s

insurance already covered the child. We consider each argument in turn.

¶ 27 I. Motion for Continuance

¶ 28 Respondent first contends that the trial court erred in denying his “two oral motions for a

continuance” of the July 9, 2015, hearing date. As an initial matter, we must first clarify the

orders at issue on appeal. As respondent notes, his counsel requested a continuance on July 7

and again on July 9, both of which were denied and both of which respondent discusses on

appeal. However, respondent’s notice of appeal states that respondent is appealing “the Order

entered July 7, 2015 denying Respondent’s motion to continue [the] hearing”; the notice of

appeal makes no mention of the second, July 9, request for a continuance and its denial. “A

notice of appeal 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,

(2011). While there is an exception for those orders that are a necessary step

in the procedural progression leading to the judgment specified in the notice of appeal (In re

Marriage of O’Brien,

), in the case at bar, the July 9 denial of the

continuance cannot be considered such a necessary step, since the July 7 order listed in the

notice of appeal occurred prior to the July 9 one. Accordingly, we consider only the denial of

respondent’s July 7 request for a continuance.

¶ 29 The trial court has the discretion to grant or deny a motion for continuance, and its

decision will not be disturbed on appeal unless it has resulted in a palpable injustice or

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No. 1-16-0071

constituted an abuse of discretion. K&K Iron Works, Inc. v. Marc Realty, LLC,

. “An abuse of discretion occurs only when the trial court’s decision is

arbitrary, fanciful, or unreasonable or where no reasonable person would take the view

adopted by the trial court.” Seymour v. Collins,

, ¶ 41. When reviewing for

abuse of discretion, the appellate court does not substitute its judgment for that of the trial

court or determine whether the trial court acted wisely. John Crane Inc. v. Admiral Insurance

Co.,

(2009).

¶ 30 After a case has reached the trial stage, a party requesting a continuance must provide the

court with “ ‘especially grave reasons’ ” for needing the continuance due to the potential for

inconvenience to the witnesses, parties, and the court. Marc Realty,

; see also Ill. S. Ct. R. 231(f) (eff. Jan. 1, 1970) (“sufficient excuse” must be

shown). Additionally, a party requesting a motion for continuance on account of an absence

of material evidence must support the motion with an affidavit showing (1) that due diligence

has been used to secure the evidence, (2) what facts the evidence consists of, (3) if in the

form of testimony, the residence of the witness or, if unknown, that due diligence has been

used to discover it, and (4) that the evidence can be obtained if more time is permitted. Ill. S.

Ct. R. 231(a) (eff. Jan. 1, 1970). A decisive factor is whether the moving party has shown a

lack of diligence in proceeding with the litigation. In re Marriage of Ward,

(1996).

¶ 31 In the case at bar, respondent argues that the trial court abused its discretion when it

denied his motion for continuance of the hearing on July 9, 2015. In response, petitioner

argues that the trial court appropriately acted within its discretion when it denied

respondent’s motion for continuance. In support of her position, petitioner argues that

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No. 1-16-0071

respondent had not shown due diligence throughout the course of litigation, specifically with

regard to compliance with discovery rules. Furthermore, petitioner notes that the July 9

hearing date was set on May 29, 2015, meaning that respondent had plenty of time to adjust

his schedule to accommodate the July 9 hearing date. In addition, respondent did not provide

a written request or an affidavit to the court explaining a grave reason for needing a

continuance.

¶ 32 We find petitioner’s arguments to be persuasive. The trial court’s discretionary decision

to deny respondent’s motion for continuance was justified by respondent’s lack of due

diligence displayed throughout the course of litigation. Such was the case in Ward,

, where the respondent in a dissolution of marriage case appealed the trial

court’s denial of a motion for continuance due to his attorney’s illness, which was requested

via telephone on the morning of a hearing date. The appellate court affirmed the denial of the

motion in part because the respondent had been granted previous continuances and had also

failed to appear at prior court dates, indicating a lack of due diligence during the proceedings

in the case. Ward,

. The court concluded that “respondent’s dilatory

tactics and flagrant disregard of the court’s orders delayed resolution of the dissolution case

and taxed the court’s patience.” Ward,

.

¶ 33 We find that the circumstances in Ward align with the case at bar. Here, respondent

repeatedly defied discovery requests from petitioner and orders from the court. In addition, as

the trial court concluded, respondent’s actions during the course of litigation diminished his

credibility regarding his financial situation. Respondent failed to appear at any of the court

dates prior to the entry of the permanent child support order in August 2013. His failure to

appear at these hearings resulted in him defying several court orders requiring him to provide

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No. 1-16-0071

proof of income in order to establish the appropriate amount of child support. After finally

becoming involved in the case in August 2014, respondent failed to timely produce the

financial disclosure form pursuant to Cook County Circuit Court Rule 13.3.1, which

prompted petitioner to file a petition for rule to show cause against respondent in December

2014. When respondent finally produced his Rule 13.3.1 financial disclosure form in January

2015, it showed all zeroes regarding income. Respondent did produce an edited financial

disclosure form in March 2015, which showed income but failed to list his bank accounts

with Chase Bank and his business affiliation with TMT Sportz, both of which petitioner

discovered upon her own investigation. After learning of this omitted information, petitioner

filed a request for production to respondent in May 2015, requesting documents relating to

his business interest in TMT Sportz. Respondent only complied with the second discovery

request after petitioner issued a Supreme Court Rule 201(k) letter and subsequently filed a

motion to compel discovery compliance.

¶ 34 Collectively, respondent’s actions have, to use the words from the court in Ward, delayed

resolution of petitioner’s petition to modify child support and have taxed the trial court’s

patience. Petitioner had expressed her readiness to continue with the trial. In addition, the

well-being of the child depended on a swift resolution of petitioner’s petition to modify child

support. Respondent’s behavior unnecessarily delayed resolution of the appropriate amount

of child support that the court determined that the child needed. Respondent’s lack of due

diligence as represented by the record thus supports the trial court’s justification for using its

discretion to deny the motion for continuance.

¶ 35 In addition, the absence of a written request or affidavit supporting respondent’s motion

for continuance further highlights respondent’s lack of due diligence, especially since it is

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No. 1-16-0071

required by Illinois Supreme Court Rule 231(a) (eff. Jan. 1, 1970). Moreover, the absence of

a written request or affidavit also supports petitioner’s argument that respondent did not

provide a sufficient reason for needing a continuance, as required by Illinois Supreme Court

Rule 231(f) (eff. Jan. 1, 1970). In Ward, in affirming the denial of the motion for

continuance, the appellate court found that the respondent did not provide a sufficient reason

for the continuance, relying on the fact that the respondent did not file a written motion for a

continuance nor did he provide an affidavit concerning his counsel’s illness. Ward,

. Similarly, in In re Marriage of Betts,

(1987), the

respondent father in an action for past due child support was appealing, inter alia, the trial

court’s denial of his orally requested continuance of a hearing that he had been ordered to

appear at only a week beforehand. The appellate court affirmed the trial court’s discretionary

denial in part because “respondent could have presented a written motion for a continuance”

prior to the hearing date. Betts,

. By contrast, in Bethany Reformed

Church of Lynwood v. Hager,

(1979), the defendant appealed the

denial of a continuance because he was hospitalized. The appellate court reversed in part

because the defendant had submitted valid affidavits explaining his illness, the identity of his

physician, the hospital he was being treated at, and a time period that he would be

hospitalized. Bethany,

.

¶ 36 The case at bar bears more resemblance to Ward and Betts than it does to Bethany.

Similarly to Ward, respondent did not file a written motion for continuance, nor did he

provide a supporting affidavit. Instead, respondent’s counsel orally requested a motion for

continuance at both the status hearing on July 7 and the actual hearing on July 9. However,

the record shows that respondent’s counsel did not provide any reason for respondent’s

18

No. 1-16-0071

unavailability. Based on the information available in the record, it appears that respondent

requested the continuance solely on the basis of his ambiguous “unavailability.” It is

important to keep in mind that the hearing on petitioner’s petition to modify support had

already begun and respondent was fully aware that he was required to complete his testimony

during the July 9 hearing. As previously mentioned, a motion for continuance after trial has

begun must be supported by a grave reason due to the potential for inconvenience to the

witnesses, the parties, and the court. Marc Realty,

. Since

respondent failed to communicate a grave reason, or any reason at all, for needing a

continuance after trial had started, the trial court appropriately acted within its discretion

when denying respondent’s motion for continuance.

¶ 37 We find respondent’s arguments to the contrary to be unpersuasive. In support of this

appeal, respondent argues that he showed a significant excuse for his unavailability and that

there was little inconvenience to the witnesses or the court to continue one day of trial.

Respondent also argues that, should his excuse not be deemed sufficient, the ends of justice

necessitated the granting of the continuance.

¶ 38 At the forefront, we note that respondent’s argument that he provided a significant excuse

for the motion for continuance is not factually supported by the record. Respondent asserts

that his counsel explained to the court that he was out of state when the oral motion for

continuance was made. However, the record shows that respondent’s counsel only offered

this explanation when she orally requested the court to allow respondent to testify via

telephone. In fact, the agreed statement of facts shows that when respondent’s first motion

for continuance was requested during the July 7 trial status hearing, respondent “did not

disclose or explain his sudden unavailability.” Thus, contrary to his argument on appeal, the

19

No. 1-16-0071

record shows that respondent only provided an explanation for his absence for the purpose of

requesting telephone testimony and not for the motion for continuance.

¶ 39 However, even assuming arguendo that respondent did explain to the court that he was

out of state when he requested the continuance, we cannot say that his explanation would

qualify as a “grave reason” for needing a continuance. Respondent offers no case law

supporting the notion that simply being out of state on the day of trial is a “grave reason.”

Instead, respondent attempts to contrast the facts of the case at bar from those present in

Marc Realty,

, where the moving party requested a

motion for continuance in order to secure new counsel because it had terminated its counsel

on the day of trial due to an “inherent conflict.” In that case, the appellate court affirmed the

trial court’s denial of the motion for continuance, agreeing with the trial court that granting

the continuance would inconvenience the other parties in the litigation. Marc Realty,

. By contrast to Marc Realty, respondent argues that his motion for

continuance would not inconvenience the court or petitioner because there were no outside

witnesses and both parties lived in Illinois. However, respondent’s argument does nothing to

show that his explanation for his unavailability was a grave reason. Rather, respondent seems

to assert that since there was little potential for inconvenience in granting his continuance, his

explanation suffices as a grave reason. There is no logic in this assertion. Furthermore, the

assertion that the continuance would not inconvenience petitioner is not supported by the

circumstances of the case. Child support was the central issue at the July 9 hearing. Petitioner

and, more importantly, the child would certainly be inconvenienced by having to wait to

resolve this issue, because this money goes toward supporting the child and resolution of this

issue had already been prolonged by respondent’s noncompliance with discovery.

20

No. 1-16-0071

¶ 40 Moreover, respondent ignores that the court in Marc Realty also explained it upheld the

trial court’s denial of the continuance in part because the explanation that the moving party

terminated its counsel due to an “inherent conflict” was only supported by a vague factual

reference and did not amount to a sufficiently grave reason. Marc Realty,

. This is similar to the case at bar, where respondent requested a continuance but

did not explain his unavailability or at what point he would be available to continue trial.

This is amplified by the fact that respondent did not submit a written motion or a supporting

affidavit. There is no way that we can conclude that respondent offered a sufficiently grave

reason for needing a continuance after trial had already begun.

¶ 41 In addition, respondent argues that if being out of state was not a sufficiently grave

reason, the ends of justice required his continuance to be granted. Respondent supports this

notion by pointing out that the issue of child support could not be adequately decided without

him, that he was unable to clarify evidence submitted against him, and that he was unable to

hear and respond to petitioner’s testimony. Respondent is undoubtedly correct in asserting

that his testimony was important to the issue of child support. Such was the case in Lindeen

v. Illinois State Police Merit Board,

(1962), where the plaintiff submitted

a motion for continuance because he was unable to locate his essential witness, despite

issuing a subpoena to compel the witness to appear for the trial date. Our supreme court

reversed the denial of this motion, explaining that the plaintiff had exercised due diligence in

trying to procure the witness and that under these circumstances, justice demanded that he be

given more time to procure his essential witness. Lindeen,

. Similarly, in

Vollentine v. Christoff,

(1974), the plaintiffs requested a continuance

because the trial date had been moved and their indispensable witness, a doctor, was not

21

No. 1-16-0071

available for the new trial date. The appellate court reversed the denial of the motion,

explaining that the unavailability of the witness was no fault of the plaintiffs and that the

ends of justice required that plaintiffs have time to procure this essential witness. Vollentine,

.

¶ 42 From the case law, it appears that the ends of justice demand the granting of a

continuance to procure an essential witness in circumstances where the witness is unavailable

through no fault of the moving party and the moving party had exercised due diligence in

procuring the witness. However, this was not the situation in the case at bar. Respondent was

the essential witness, but he did not put forth any evidence to show that his unavailability

was sudden or that he had exercised due diligence to ensure that he could attend the July 9

hearing date. The record does not show that he attempted to change his schedule or that he

absolutely needed to be out of state during the July 9 hearing date. In fact, in his reply to

petitioner’s response to his motion to reopen proofs, respondent affirmatively stated that

“[h]ad the importance of his presence on [July 9] been adequately explained to him by his

prior counsel, he would have been present in court.” Thus, respondent’s own statement

shows that he could have been present in court had he wished. Furthermore, the record also

indicates that the hearing date was set on May 29, meaning that respondent had plenty of

time to exhibit due diligence in attending the hearing. The absence of any due diligence or

explanation of his unavailability supports the trial court’s discretionary decision to deny

respondent’s motion for a continuance, and we affirm the trial court’s decision on this issue.

¶ 43 II. Motion to Reopen Proofs

¶ 44 Respondent next argues that the trial court erred in denying his motion to reopen proofs,

which he filed after the trial court granted petitioner’s petition to modify child support. “In

22

No. 1-16-0071

ruling on a motion to reopen proofs, the trial court considers: whether the moving party has

provided a reasonable excuse for failing to submit the additional evidence during trial,

whether granting the motion would result in surprise or unfair prejudice to the opposing

party, and if the evidence is of the utmost importance to the movant’s case.” (Internal

quotation marks omitted.) In re Estate of Bennoon,

.

Additionally, when a case is tried before the court without a jury, “greater liberty should be

allowed in reopening proofs.” Bennoon,

. Nevertheless, the

fact that a case is heard without a jury does not mean that a motion to reopen proofs should

automatically be granted. See Bennoon,

(affirming the denial

of a motion to reopen proofs despite the fact that there was no jury and the motion to reopen

proofs was brought before the trial court rendered its decision). An order denying a motion to

reopen proofs is reviewed for an abuse of discretion. Bennoon,

. As noted, “[a]n abuse of discretion occurs only when the trial court’s decision is

arbitrary, fanciful, or unreasonable or where no reasonable person would take the view

adopted by the trial court.” Seymour,

.

¶ 45 In the case at bar, we cannot find that the trial court abused its discretion in denying

respondent’s motion to reopen proofs. Respondent claims that he had a reasonable excuse for

failing to present “proof of his income,” 13 namely, the fact that he was not present at the

hearing on July 9. However, respondent’s argument presupposes that his absence from the

hearing was “reasonable” and that it was the trial court that made the error in refusing to

continue the hearing until respondent could be present. As we have thoroughly discussed

above, however, the trial court properly refused to grant respondent’s continuance because 13 As petitioner points out, respondent never specifies what evidence he would provide, other than his own testimony. Instead, respondent focuses on his argument that petitioner failed to sustain her burden of proving respondent’s income. We consider that argument in the next section of our analysis. 23

No. 1-16-0071

respondent’s excuse for being absent from the hearing, which he did not even provide to the

trial court at the time he requested the continuance, was not sufficiently grave. Moreover, as

noted, respondent himself admitted that he could have been present at the July 9 hearing had

he chosen to be. Thus, as the Bennoon court noted, respondent’s failure to present his

evidence “was not because of inadvertence but was a calculated risk on [his] part.” Bennoon,

. That risk—that respondent could miss the hearing date with

no repercussions—backfired, and we cannot find that respondent’s absence from the July 9

hearing date is a reasonable excuse for his failure to present the evidence concerning his

income that he now wishes to present.

¶ 46 We also do not find persuasive respondent’s contention that there would have been no

surprise or unfair prejudice to petitioner in reopening the case. As in our discussion of

prejudice concerning the motion for a continuance, reopening the proofs would have

prolonged the case and would have delayed petitioner’s receipt of child support, which is

necessary for providing for the child’s needs. See Bennoon,

(finding prejudice where “allowing the reopening of proofs in this case would further delay

the closing and final distribution of an estate which was opened in 2008”).

¶ 47 Respondent also argues that “the evidence that [he] sought to introduce as part of his

motion to reopen proofs was of the utmost importance to [his] case and would likely have

materially altered the trial court’s judgment.” However, respondent does not specify what

evidence he would have introduced, other than his own testimony. Furthermore, respondent

does not explain what his testimony would have been, meaning that we have no way of

knowing whether it would have been “of the utmost importance to [his] case,” especially

since the trial court made numerous findings of fact concerning respondent’s lack of

24

No. 1-16-0071

credibility. See People v. Collier,

(2002) (“[I]n order for the trial

court to have found that defendant’s testimony was of such importance to warrant the

reopening of his case, an offer of proof should have been presented before the court ruled on

his request or immediately thereafter. Given the lack of insight as to the character of his

testimony and reasons for failing to present it during his case in chief, we cannot say that the

trial court clearly abused its discretion when denying defendant’s motion to reopen his

case.”); Dunahee v. Chenoa Welding & Fabrication, Inc.,

(1995)

(using the plaintiff’s offer of proof of witness testimony as to a critical date in finding that

the new evidence was “of the utmost importance to plaintiff’s case” and concluding that the

trial court should have reopened proofs). Whatever evidence respondent seeks to provide also

would have been available at the time of the July 9 hearing, a fact that also distinguishes

respondent’s case from the situations present in In re Marriage of Suarez,

(1986), and Wife F. v. Husband F.,

(Del. 1976), a case on which Suarez

relied; both of those cases concerned evidence of a posthearing change in value of assets that

necessitated reopening the proofs.

¶ 48 Finally, we find unpersuasive respondent’s various assertions concerning the reasons for

the trial court’s denial of his motion. First, while the trial court did reference a motion to

reconsider in beginning its remarks on the motion to reopen proofs, there is no indication that

it applied the incorrect standard in considering respondent’s motion, as it expressly stated

that it understood the type of motion it was denying. It is also clear that the fact that

respondent did not attend the July 9 hearing weighed heavily in the trial court’s analysis, a

fact that bears directly on a motion to reopen proofs and the reasonableness of respondent’s

excuse for not presenting his evidence at the hearing. Respondent also argues that the trial

25

No. 1-16-0071

court’s negative view of respondent’s credibility did not justify the denial of his motion to

reopen proofs. However, given that the only evidence respondent has suggested he would

provide if the case were reopened would be his own testimony, the trial court’s view of

respondent’s credibility would be highly relevant in determining whether the additional

evidence would be useful. Accordingly, we cannot find that the trial court abused its

discretion in denying respondent’s motion to reopen proofs.

¶ 49 III. Child Support Award

¶ 50 Next, respondent makes two arguments concerning the child support award itself. First,

respondent argues that the trial court erred when it set the amount of child support at $3000

per month. Additionally, respondent argues that the trial court erred in ordering the support

award to be retroactive to September 1, 2013. We consider each argument in turn.

¶ 51 A. Amount of Child Support

¶ 52 Respondent first argues that the trial court erred in setting the amount of child support at

$3000 per month. “A trial court enjoys broad discretion in determining the modification of

child support, and we will not overturn its decision unless there is an abuse of discretion.”

McClure v. Haisha,

; In re Marriage of Rogers,

(2004). As noted, “[a]n abuse of discretion occurs when the trial court’s ruling is

arbitrary, fanciful, or unreasonable, or when its ruling rests on an error of law.” McClure,

.

¶ 53 In the case at bar, respondent argues that petitioner failed to demonstrate that she was

entitled to an increase in child support to $3000 per month. A child support judgment can

generally be modified only upon a showing of a substantial change in circumstances. In re

Marriage of Sweet,

(2000); see 750 ILCS 5/510(a) (West 2014).

26

No. 1-16-0071

“The party seeking the modification must show both a change in the children’s needs and in

the noncustodial parent’s ability to pay.” Sweet,

. Respondent claims

that petitioner failed to show either that the child’s needs had increased or that respondent’s

income had increased. We do not find this argument persuasive.

¶ 54 With respect to the child’s needs, respondent argues that petitioner “did not testify to the

child’s needs other than to state that the needs were $3,000 per month” and points to her Rule

13.3.1 disclosure as providing evidence “that the child’s stated needs were significantly less.”

Respondent’s argument concerning the Rule 13.3.1 disclosure is unsupported by the record

on appeal. While respondent is correct that petitioner’s disclosure form lists expenses that

were spent exclusively on the child as $1497 as of the November 30, 2014, date of the

disclosure, respondent’s argument ignores the fact that the disclosure also includes $1980 in

household expenses and $585 in transportation expenses. Child support is intended to

“provide for the reasonable and necessary educational, physical, mental and emotional health

needs of the child.” 750 ILCS 5/505(a) (West 2014). A child is not expected to live without a

roof over his head or with no way to travel from place to place. Thus, even based on the

disclosure alone, the expenses eligible for child support would include more than the $1497

asserted by respondent.

¶ 55 Moreover, as to respondent’s criticism of the content of petitioner’s testimony concerning

the child’s needs, the record does not contain a transcript of the July 9, 2015, hearing at

which petitioner testified, nor does it include a bystander’s report. All that is included is an

agreed statement of facts, which is silent concerning petitioner’s testimony as to the child’s

27

No. 1-16-0071

needs. 14 As the appellant, respondent had the burden to present a sufficiently complete record

of the proceedings at trial to support a claim of error, and any doubts that arise from the

incompleteness of the record will be resolved against him. Foutch v. O’Bryant,

(1984). Furthermore, at the October 14, 2015, court date at which the trial court

denied respondent’s motion to reopen proofs, the court noted that it found petitioner’s

testimony from the July 9 hearing—that she needed $3000 per month to cover the child’s

expenses—credible and reasonable. In addition, petitioner testified that respondent was

voluntarily paying $3500 per month in child support until 2011, after which he paid less until

respondent unilaterally stopped making the payments. 15 “A reviewing court will not

substitute its judgment for that of the trial court regarding the credibility of witnesses, the

weight to be given to the evidence, or the inferences to be drawn” from the evidence. Best v.

Best,

(2006); In re Marriage of McHenry,

(1997). Since the trial court found petitioner’s testimony that the child’s needs were $3000

per month to be credible and reasonable, we will not reweigh that credibility determination

on appeal. Finally, we note that “an increase in children’s needs can be presumed on the basis

that they have grown older and the cost of living has risen.” Sweet,

.

Thus, we cannot agree with respondent’s contention that petitioner failed to show that the

child’s needs had increased.

¶ 56 We are similarly unpersuaded by respondent’s argument that petitioner failed to show

that respondent’s income had increased. Respondent argues that the record was devoid of any

competent evidence of his income, so the trial court erred in setting child support at $3000

14 We note that the agreed statement of facts indicates that both parties made arguments concerning petitioner’s testimony about the child’s needs during closing argument, but there is nothing indicating what that testimony actually was. 15 Petitioner testified that respondent paid a total of $4095.10 in child support from October 2013 through April 2015. 28

No. 1-16-0071

per month. Section 505(a) of the Marriage Act creates a rebuttable presumption that a

specified percentage of a noncustodial parent’s income represents an appropriate child

support award. In re Marriage of Freesen,

(1995). If the trial court

deviates from the statutory guidelines in awarding child support, it must make express

findings as to its reasons for doing so. In re Marriage of Severino,

, 230­

31 (1998). “[C]onsideration of the factors set forth in section 505 of the Act is mandatory,

not directory,” when deciding whether to deviate from the guidelines. Freesen,

.

¶ 57 “Under normal circumstances, the trial court is required to make a threshold

determination of the party’s net income before applying section 505.” Severino,

. “In section 505(a)(5) of the [Marriage] Act, however, the legislature recognized

that there may arise situations where the amount of the noncustodial parent’s net income

could not be accurately determined.” In re Marriage of Takata,

(1999). Section 505(a)(5) of the Marriage Act provides that, “[i]f the net income cannot be

determined because of default or any other reason, the court shall order support in an amount

considered reasonable in the particular case.” 750 ILCS 5/505(a)(5) (West 2014). Thus, in

cases where there is no credible evidence of net income, a court “[is] compelled to make the

award of child support in an amount that [is] reasonable in the case.” Takata,

. Such situations commonly occur in cases in which the party’s testimony concerning his

or her income is considered not credible by the trial court. See, e.g., In re Marriage of

Sanfratello,

(2009) (noting that the trial court acted reasonably in

drawing the inference that the respondent earned substantially more than he claimed); Sweet,

(noting that “the court strongly implied that respondent was not being

29

No. 1-16-0071

truthful about his income”); Takata,

(noting that the trial court found

the party’s testimony as to his income to be not credible); Severino, 298 Ill. App. 3d at 229­

30 (same).

¶ 58 In the case at bar, we cannot find that the trial court abused its discretion when it found

that it could not determine respondent’s income and consequently used section 505(a)(5) to

award child support in an amount it considered reasonable, which was based on the child’s

needs. First, the trial court expressly stated several times that it did not find respondent’s

testimony credible, a decision that we will not reweigh on appeal. See Best,

. Additionally, the trial court drew a negative inference from respondent’s failure to

appear on the second day of the hearing. While respondent argues that this inference was

improper, we find no error with the trial court’s actions. “Where a party fails to produce

evidence in his control, the presumption arises that the evidence would be adverse to that

party.” REO Movers, Inc. v. Industrial Comm’n,

(1992).

Respondent argues that such a presumption should not apply here, where he had a reasonable

excuse for not presenting his testimony, namely, his absence from the state. However, as

noted several times herein, the trial court properly found that respondent’s absence was not

reasonable, and we find no error in the trial court’s choosing to apply the presumption in this

case.

¶ 59 Finally, there were records concerning respondent’s involvement with TMT Sportz as

well as several of respondent’s personal bank statements admitted into evidence, which

showed that respondent had not been forthright about his income. Respondent argues that the

bank statements should not have been admitted into evidence because they were hearsay and

there was no foundation laid for their admission. Again, the only record of the hearing at

30

No. 1-16-0071

which these documents were admitted into evidence was the agreed statement of facts, which

states: “[respondent’s attorney] objected to [petitioner’s attorney’s] offer of documentary

evidence since there was no person who could verify the documents. Judge Kaplan denied

[respondent’s attorney’s] objection and indicated that the documents could be admitted over

[her] objection.” It is thus unclear the basis under which petitioner’s counsel sought to have

the documents admitted or whether a proper foundation had been laid. Again, to the extent

that the record is not sufficient to support a claim of error, “it will be presumed that the order

entered by the trial court was in conformity with law and had a sufficient factual basis.”

Foutch,

. However, even though it is not mentioned by the parties on

appeal, we do note that the bank statements do appear to have been admissible under section

505(a)(6) of the Marriage Act, which provides:

“If (i) the non-custodial parent was properly served with a request for discovery of

financial information relating to the non-custodial parent’s ability to provide child

support, (ii) the non-custodial parent failed to comply with the request, despite having

been ordered to do so by the court, and (iii) the non-custodial parent is not present at

the hearing to determine support despite having received proper notice, then any

relevant financial information concerning the non-custodial parent’s ability to provide

child support that was obtained pursuant to subpoena and proper notice shall be

admitted into evidence without the need to establish any further foundation for its

admission.” 750 ILCS 5/505(a)(6) (West 2014).

In the case at bar, concerning the bank statements from Chase bank, the record reveals:

(1) petitioner served respondent with a request for production of documents on May 15,

2015, which included a request for bank statements for any checking or savings accounts in

31

No. 1-16-0071

respondent’s name; (2) after receiving no documents in response to the request, petitioner

filed a motion to compel discovery compliance with the request to produce on June 24, 2015,

and the court ordered respondent to comply with the request to produce; (3) while the court

“acknowledge[d] [respondent’s] production of Responses to Petitioner’s 2nd Request for

Production of Documents,” petitioner’s counsel stated at the hearing on the motion to reopen

proofs that petitioner did not receive any documents concerning respondent’s Chase bank

accounts; (4) as a result of her own investigation, petitioner issued a subpoena to Chase

Bank, in response to which the bank produced respondent’s bank statements; and

(5) respondent was not present at the July 9 hearing date, at which child support was at issue.

Thus, according to the plain language of section 505(a)(6), the bank statements appear to

have been admissible without any further foundation, and the trial court did not err in

admitting them.

¶ 60 In summary, when determining respondent’s income, the trial court was presented with

(1) respondent’s incredible testimony on the first hearing date, (2) respondent’s complete

absence from the second hearing date, and (3) bank statements that indicated that there was

money flowing through respondent’s bank accounts that had not been disclosed.

Accordingly, we cannot find that the trial court abused its discretion when it determined that

it could not accurately determine respondent’s actual income from the evidence before it and

therefore needed to apply section 505(a)(5) to award what it considered reasonable child

support, which was based on the child’s needs, which amounted to $3000 per month. In

addition, the fact that the trial court found that respondent had more income than he claimed

was a factor that the court considered in making this determination.

32

No. 1-16-0071

¶ 61 B. Retroactivity of Support

¶ 62 Respondent also claims that the trial court erred in ordering the modified support award

to be retroactive to September 1, 2013, in light of the fact that petitioner’s petition to modify

support was filed on October 9, 2014. Respondent argues that this issue should be reviewed

de novo, while petitioner claims it should be reviewed under an abuse of discretion standard.

However, we have no need to resolve this dispute because, even applying the more

deferential standard of review, we would still conclude that the trial court erred in ordering

the support award to be retroactive to September 1, 2013.

¶ 63 Under section 510(a) of the Marriage Act, “the provisions of any judgment respecting

maintenance or support may be modified only as to installments accruing subsequent to due

notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a)

(West 2014). Thus, under the plain language of the statute, the filing of the motion for

modification is the earliest date to which the modification applies. See In re Marriage of

Pettifer,

(1999) (“A plain reading of section 510(a) dictates that a

retroactive modification is limited to only those installments that date back to the filing date

of the petition for modification and, thus, insures that the respondent is put on notice prior to

the court ordering him to pay increased support.”); In re Marriage of Henry,

(1993) (“Dissolution of marriage and collateral matters such as child support are entirely

statutory in origin and nature [citation], and, in light of the legislature’s clear pronouncement

*** [in section 510(a)], a trial court has no authority to retroactively modify a child support

order ***.”).

¶ 64 In the case at bar, petitioner’s petition for modification of child support was filed on

October 9, 2014. Accordingly, the trial court only had the discretion to modify child support

33

No. 1-16-0071

as to installments accruing after that date and, consequently, erred in ordering child support

to be retroactive to September 1, 2013. Therefore, we vacate that portion of the custody

judgment ordering the increased amount of child support from September 1, 2013, to October

9, 2014.

¶ 65 In arguing that the trial court had the discretion to order retroactive support, petitioner

cites In re Marriage of Erickson,

(1985), and In re Parentage of

Janssen,

(1997). However, Erickson is unpersuasive because it involved

the termination and modification of maintenance and child support, respectively, after the

remarriage of the custodial parent. Similarly, Janssen is inapposite because it concerned

ordering retroactive support pursuant to the Parentage Act back to the date of the child’s

birth. While petitioner in the case at bar did bring a parentage action, the support sought in

this case is not an initial support order but is a modified one. Under section 16 of the

Parentage Act, “[a]ny support judgment is subject to modification or termination only in

accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act.” 750

ILCS 45/16 (West 2014). Thus, section 510(a) of the Marriage Act applies, and its plain

language provides the limitation of the support order.

¶ 66 Finally, we find unpersuasive petitioner’s arguments that respondent had notice that she

was seeking retroactive support because in 2013, there were temporary and permanent

support orders referencing retroactive child support. However, the two orders referenced by

petitioner reserved the issue of retroactive child support from January 1, 2011, through

March 31, 2013. These orders lend no support to the claim that respondent was on notice that

petitioner would be seeking retroactive support from September 1, 2013, and, indeed, child

support from January 2011 through March 2013 does not appear to have been at issue during

34

No. 1-16-0071

the hearing. Accordingly, as set forth above, we vacate the portion of the custody judgment

ordering the increased amount of child support from September 1, 2013, to October 9, 2014.

¶ 67 IV. Health Insurance

¶ 68 Finally, respondent claims that the trial court erred in requiring him to provide health

insurance for the child because petitioner already had health insurance for the child at no cost

to her. “It is within the trial court’s sound discretion to order the payment of a health

insurance premium, and the trial court’s ruling will not be disturbed on review absent an

abuse of discretion.” In re Marriage of Raad,

(1998). As noted,

“[a]n abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or

unreasonable or where no reasonable person would take the view adopted by the trial court.”

Seymour,

.

¶ 69 In the case at bar, in the custody judgment, the trial court ordered respondent to “acquire

and maintain health insurance for the minor child.” In its comments in open court, the court

also noted that, “[h]e can go get a policy and pay for it or he can reimburse mom if she does

have a policy. *** That is his obligation.” Under section 505.2 of the Marriage Act:

“(1) Whenever the court establishes, modifies or enforces an order for child

support or for child support and maintenance the court shall include in the order a

provision for the health care coverage of the child which shall, upon request of the

obligee or Public Office, require that any child covered by the order be named as a

beneficiary of any health insurance plan that is available to the obligor through an

employer or labor union or trade union. If the court finds that such a plan is not

available to the obligor, or that the plan is not accessible to the obligee, the court may,

upon request of the obligee or Public Office, order the obligor to name the child

35

No. 1-16-0071

covered by the order as a beneficiary of any health insurance plan that is available to

the obligor on a group basis, or as a beneficiary of an independent health insurance

plan to be obtained by the obligor, after considering the following factors:

(A) the medical needs of the child;

(B) the availability of a plan to meet those needs; and

(C) the cost of such a plan to the obligor.” 750 ILCS 5/505.2(b)(1) (West

2014).

¶ 70 Respondent’s argument appears to be that the trial court abused its discretion in ordering

him to obtain health insurance because petitioner already had an insurance plan and

respondent was unemployed. As to respondent’s claims about his income, those have already

been exhaustively discussed above, and we have no need to further discuss them here.

Additionally, “[t]he duty to provide health insurance is an integral part of a parent’s current

and future support obligations.” In re Marriage of Seitzinger,

(2002). Respondent cites no authority that would relieve one parent from a health insurance

obligation simply because the other parent already has a policy. Indeed, section 505.2(d)

provides that “[t]he dollar amount of the premiums for court-ordered health insurance ***

shall be considered an additional child support obligation owed by the obligor.” 750 ILCS

5/505.2(d) (West 2014). This makes clear that health insurance is respondent’s child support

obligation, regardless of petitioner’s situation. See Takata,

(finding the

respondent liable for unpaid health insurance premiums despite the fact that the petitioner

insured her children through public aid at no cost to her). We cannot find that the trial court

abused its discretion in ordering respondent to obtain health insurance for the child.

36

No. 1-16-0071

¶ 71 CONCLUSION

¶ 72 For the reasons set forth above, we find (1) the trial court did not err in denying

respondent’s motion for a continuance, (2) the trial court did not err in denying respondent’s

motion to reopen proofs, (3) the trial court did not err in setting child support at $3000 per

month, and (4) the trial court did not err in ordering respondent to obtain health insurance for

the child. However, we vacate that portion of the custody judgment ordering the increased

amount of child support from September 1, 2013, to October 9, 2014, as the trial court could

only order increased support retroactive to the date of the filing of the petition for

modification.

¶ 73 Affirmed in part; vacated in part.

37