Petersen v. Petersen

FIFTH DIVISION
July 30, 2010

Nos. 1-08-2643 and 1-08-2644, Consolidated

KEVIN PETERSEN, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
v. )
)
JANET KELLOGG PETERSEN, ) Honorable
) Mark Lopez,
Respondent-Appellee. ) Judge Presiding.

JUSTICE HOWSE delivered the opinion of the court:

Respondent-appellee, Janet Petersen, filed a petition in the

circuit court of Cook County requesting an allocation of the

college expenses for the three children of the dissolved marriage

between Janet and her former husband, petitioner-appellant, Kevin

Petersen. Kevin appeals from an order requiring him to pay 75%

of all past, present and future college expenses of his three

children. Kevin contends the trial court erred when it ordered

him to pay 75% of his children’s college expenses and erred when

it ordered him to pay expenses that predate the filing of Janet’s

petition for allocation of expenses. For the reasons set forth

below, we affirm in part and reverse in part.

BACKGROUND

Kevin and Janet were married on September 1, 1983, in

Pacific Palisades, California. Three children were born of the
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marriage: Gregory, born August 12, 1984; Ian, born October 21,

1985; and Ellis, born April 19, 1989.

A judgment for dissolution of marriage was entered on August

27, 1999. At the time of the judgment both parties were 44 years

old. Janet, who has undergraduate degrees in psychology and

nursing, was employed part-time as a hospice nurse. Kevin, who

has a medical degree, was employed as a general surgeon.

The judgment for dissolution awarded Janet sole custody of

the children. Kevin was ordered to pay child support. With

respect to the college expenses of the children, the judgment

provided:

“The Court expressly reserves the issue

of each party’s obligation to contribute to

the college or other education expenses of

the parties’ children pursuant to Section 513

of the [Illinois Marriage and Dissolution of

Marriage Act].”

The children were not attending college at the time the

judgment of dissolution was entered. Shortly after the

dissolution, Kevin was adjudicated bankrupt.

On May 7, 2007, Janet filed a petition requesting an

allocation for college expenses for the children. The trial

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court conducted evidentiary hearings.

Janet testified that Gregory, the oldest child, started

college at Cornell University in 2002 and graduated in 2006. At

the time of the hearing, Ian was 21 years old and had attended

Wake Forest University for his first year of college in 2004-05

and then transferred to the University of Texas. The youngest

child, Ellis, was 18 years old and in his first year of college

at the California Polytechnic State University.

Janet testified that she had not spoken to Kevin since 2002.

Janet testified she sent a letter to Kevin in July 2002 listing

the expenses Gregory would incur by attending Cornell. She

testified that she never received a response from Kevin to her

letter.

Janet financed Gregory’s tuition and expenses with loans.

She paid off the loans for Gregory’s first year with money she

received under the judgment for dissolution. Janet also took out

loans for Ian’s and Ellis’s educations.

Kevin testified that he had not received notification from

Janet regarding the children’s college plans, including the 2002

letter.

Kevin testified that his income was $94,000 in 2002. The

parties stipulated that Kevin’s income reported on his IRS 1040

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form for 2003 was $180,687; in 2004 he earned $181,939; in 2005

he earned $220,314; and in 2006 he earned $294,563. Kevin owns

two companies – Summerlin Surgical Associates, which had average

monthly gross receipts of $63,600 from January 2007 through July

2007, and No Insurance Surgery MC, which had average monthly

gross receipts of $69,100 from February 2007 through July 2007.

Janet’s income for 2003 was $30,170; in 2004 she earned $34,955;

in 2005 she earned $35,106; and in 2006 she earned $40,268.

On April 4, 2008, the trial court ordered Kevin to pay 75%

of the total of all college expenses for the parties’ three

children, past, present and future. The trial court reserved the

amount due pending a review of Janet’s accounting. On June 17,

2008, the trial court issued an order determining the amount due

from Kevin was $227,260.68 for past college expenses. On July

15, 2008, Kevin appealed that order. On August 18, 2008, the

trial court entered an order requiring Kevin to pay his allocated

share of Ian’s and Ellis’s expenses for the 2008-09 school year

in the amount of $46,290.91. Kevin appealed that order on

September 15, 2008. Both of Kevin’s appeals were consolidated

into this joint appeal.

On appeal Kevin argues: (1) the trial court erred when it

ordered him to pay college expenses that accrued prior to the

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filing of Janet’s petition; (2) the trial court erred when it

ordered him to pay 75% of the college expenses; and (3) the trial

court lost jurisdiction to order payment of Gregory’s college

expenses since he had already received his baccalaureate degree

at the time Janet’s petition was filed.

ANALYSIS

I. Retroactive College Expenses

Kevin argues the trial court erred when it ordered him to

pay college expenses which were incurred prior to the filing of

Janet’s petition because the order is a modification of the child

support provisions of the 1999 dissolution judgment. Kevin

argues Janet’s petition should be treated as a modification of

the child support order because college education expenses are a

form of child support and Janet’s petition seeks to modify the

existing support order by requiring him to pay college expenses.

Kevin further argues that under the provisions of section 510 of

the Illinois Marriage and Dissolution of Marriage Act, any

modified payment can only be retroactive to the date on which the

notice of filing was issued on Janet’s petition to allocate

expenses. 750 ILCS 5/510, 513 (West 2008).

The trial court held that its April 4, 2008 order for

retroactive payments was not a modification of a prior child

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support order, holding:

“[T]here is no order currently in place

on college contributions which either party

seeks to modify, rather this petition is the

first opportunity the Court is presented to

address the parties’ [section] 513

contribution.”

The trial court ordered that Janet should receive credit for

section 513 expenses she had already made and be reimbursed by

Kevin.

The modification of provisions for maintenance, support,

educational expenses and property disposition are generally

governed by section 510 of the Act, which states in relevant

part:

“(a) *** [T]he 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

2008).

We review de novo the construction and application of the

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Illinois Marriage and Dissolution of Marriage Act (the Act) (750

ILCS 5/501 et seq. (West 2008)). Blum v. Koster, 235 Ill. 2d 21,

29, 919 N.E.2d 333 (2009). The primary rule of statutory

construction is to ascertain and give effect to the intent of the

legislature. In re Application of the County Treasurer & County

Collector, 389 Ill. App. 3d 398, 401, 905 N.E.2d 953 (2009). The

intent of the legislature is best evidenced by the language of

the statute. People v. Janas, 389 Ill. App. 3d 426, 428, 906

N.E.2d 686 (2009). When the statutory language is clear and

unambiguous, we must apply it as it is written, without resort to

extrinsic aids of statutory construction. Koster, 235 Ill. 2d at

29.

Petitions for educational expenses of nonminor children are

generally governed by section 513 which states in relevant part:

“(a) The court may award sums of money

out of the property and income of either or

both parties *** for the support of the child

or children of the parties who have attained

majority in the following instances:

(1) When the child is mentally or

physically disabled ***.

(2) The court may also make

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provision for the educational expenses

of the child or children of the parties,

whether of minor or majority age, and an

application for educational expenses may

be made before or after the child has

attained majority ***. *** The

educational expenses may include, but

shall not be limited to, room, board,

dues, tuition, transportation, books,

fees, registration and application

costs, medical expenses including

medical insurance, dental expenses, and

living expenses during the school year

and periods of recess, which sums may be

ordered payable to the child, to either

parent, or to the educational

institution, directly or through a

special account or trust created for

that purpose, as the court sees fit.

***

The authority under this Section to

make provision for educational expenses,

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except where the child is mentally or

physically disabled and not otherwise

emancipated, terminates when the child

receives a baccalaureate degree.” 750

ILCS 5/513 (West 2008).

The legislative intent of section 513 was to furnish a means

to provide for the education of nonminor children of divorced

parents. In re Marriage of Treacy, 204 Ill. App. 3d 282, 286,

562 N.E.2d 266 (1990). The imposition of a section 513 order for

educational expenses is within the sound discretion of the trial

court. Treacy, 204 Ill App. 3d at 286.

In general, courts have viewed section 513 educational

expenses as a type of child support:

" 'Support' is simply a general term that can

include 'educational expenses' for a child

who has turned 18 but is still in high

school. 'Educational expenses' may include

'room' and 'board,' just as the more generic

term, 'support,' may include shelter and

food. A court can award 'support' to

disabled unemancipated children, minor or

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nonminor (750 ILCS 5/513(a)(1) (West 2000)),

and a particular kind of support,

'educational expenses,' to 'nonminor

children' in school (750 ILCS 5/513(a)(2)

(West 2000)).' " In re Marriage of Waller,

339 Ill. App. 3d 743, 748, 791 N.E.2d 674

(2003).

Section 513 itself states that payment of college expenses

is a form of child support for the nonminor children of a

marriage:

“(a) The court may award sums of money

out of the property and income of either or

both parties *** for the support of the child

or children of the parties who have attained

majority in the following instances:

(1) When the child is mentally or

physically disabled ***.

(2) The court may also make provision

for the educational expenses of the child or

children of the parties ***." (Emphasis

added) 750 ILCS 5/513(a) (West 2008).

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Furthermore, in In re Estate of Champagne, 153 Ill. App. 3d

560, 505 N.E.2d 1352 (1987), the court noted the interplay

between sections 513 and 510 when it held that section 513

educational expenses are intended to be included within section

510(c) the same as a support order and are not terminated by the

death of a parent obligated to pay for these expenses.

Champagne, 153 Ill. App. 3d at 563-64.

The issue in In re Marriage of Loffredi, 232 Ill. App. 3d

709, 597 N.E.2d 907 (1992), is whether a dissolution judgment

which provides for payment of children’s college expenses is

modifiable. Loffredi, 232 Ill. App. 3d at 711. The court looked

to section 502(f), which deals with modification of settlement

agreements, and found a provision for college expenses in a

settlement agreement is in the nature of child support pursuant

to section 502(f) and may be modified. Loffredi, 232 Ill. App.

3d at 711.

We also find instructive the holding in Conner v. Watkins,

158 Ill. App. 3d 759, 511 N.E.2d 200 (1987). In Conner, the

trial court stated at a hearing on October 30, 1972, prior to

issuing the divorce judgment, that it reserved the issue of child

support. Conner, 158 Ill. App. 3d at 759-60. The divorce

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judgment did not mention child support. Conner, 158 Ill. App. 3d

at 762. The court found that no award of support was made in the

original judgment and thus concluded:

“[A]ny subsequent award of support would

constitute a modification of the previous

judgment, thereby bringing the case within

the purview of section 510(a) of the Act

(Ill. Rev. Stat. 1985, ch. 40, par. 510(a)),

which prohibits the award of retroactive

support.” Conner, 158 Ill. App. 3d at 762.

The case at bar is similar to Conner in that the trial court

did not make an award of child support in the form of educational

expenses. Thus, Janet’s petition for educational expenses is a

modification of the support provisions of the judgment and

section 510 requires Kevin’s contribution to his children’s

educational expenses to begin on the notice date of Janet’s

petition.

Janet claims In re Marriage of Bennett, 306 Ill. App. 3d

246, 713 N.E.2d 1278 (1999), is illustrative of a situation where

the appellate court affirmed a trial court decision allowing

retroactive educational expense payments.

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In Bennett, the mother made the same argument as Kevin, in

the case at bar, that educational expenses are a section 510

modification and can only accrue from the date of the petition

for educational expenses. Bennett, 306 Ill. App. 3d at 247-48.

However, Bennett is distinguishable from the case at bar in that

the educational expenses there occurred while the parties were

still married. Bennett, 306 Ill. App. 3d at 248. The court

stated that under section 15 of the Rights of Married Persons Act

(750 ILCS 65/15(a)(1) (West 1996)), creditors could have pursued

the mother for all or any portion of the daughter’s educational

expenses before or after the petition for dissolution was filed

because the expenses occurred while the parties were still

married. Bennett, 306 Ill. App. 3d at 248. As a result, the

appellate court in Bennett found that the trial court did not err

in ordering the mother to reimburse the father for a portion of

past educational expenses. Bennett, 306 Ill. App. 3d at 247-48.

In this case, unlike Bennett, creditors could not have sued

Kevin for those expenses under the Rights of Married Persons Act.

Therefore, ordering Kevin to make payments that predate the

petition was improper.

In this case, we note, the judgement of dissolution of

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marriage did not determine whether the parents were required to

pay the college expenses of the children (a form of child

support), but reserved the issue to be decided in the future.

Janet’s petition for allocation of college expenses is in the

nature of a modification of child support under section 510.

Therefore, the trial court erred when it ordered payment of

college expenses that predate the notice of filing as provided in

section 510(a). 750 ILCS 5/510(a) (West 2008).

II. Allocation of Educational Expenses

The amount and percentage of allocation of educational

expenses will not be overturned absent a finding that the trial

court abused its discretion. Street v. Street, 325 Ill. App. 3d

108, 115, 756 N.E.2d 887 (2001). A clear abuse of discretion

occurs when the trial court’s ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view

adopted by the trial court. Koster, 235 Ill. 2d at 36.

Section 513(b) instructs:

“(b) In making awards under paragraph

(1) or (2) of subsection (a), or pursuant to

a petition or motion to decrease, modify, or

terminate any such award, the court shall

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consider all relevant factors that appear

reasonable and necessary, including:

(1) The financial resources of both

parents.

(2) The standard of living the

child would have enjoyed had the

marriage not been dissolved.

(3) The financial resources of the

child.

(4) The child’s academic

performance.” 750 ILCS 5/13(b) (West

2008).

In its analysis of the financial resources of the parents,

the trial court weighed several years of Janet’s income listed on

her W2 form, including $40,000 for 2006. The trial court

considered Kevin’s IRS 1040 tax return form for several years

including 2006, which listed his total income at $294,563.

The trial court also noted that Kevin owned two companies,

one, Summerlin Surgical Associates, had an average monthly gross

receipts of $63,600 from January 2007 through July 2007, while

the other, No Insurance Surgery MC, averaged monthly gross

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receipts of $69,100 from February 2007 through July 2007. Kevin

is the sole shareholder of those corporations.

Kevin claims the trial court failed to consider his

inability to pay the educational expenses as portrayed on his

income disclosure statement. Kevin claims his monthly living

expenses of $35,354 are far greater than his monthly income of

$16,000, creating a deficit of $19,359.

However, the trial court noted that Kevin is remarried and

pays $16,000 a year in private school tuition for his nine-year-

old stepson and approximately $12,000 a year in private school

tuition for his four-year-old son, and his two-year-old son

attends private school as well.

Thus, based on the total financial evidence presented, and

the income disparity between Janet and Kevin, we cannot say that

the trial court was being arbitrary, fanciful, or unreasonable

when it determined that Kevin should pay 75% of the college

expenses.

The trial court found that Kevin is in a far better

financial position than Janet to contribute to their children’s

educational expenses.

The trial court found that Kevin failed to fulfill court

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ordered obligations to pay child support, medical insurance

premiums and reimbursement of medical expenses while paying over

$16,000 a year for the private school of a stepson whom he has no

legal obligation to support, along with $12,000 for his four-

year-old’s private schooling.

The trial court considered the record in its entirety when

it found Kevin should pay 75% of all section 513 expenses while

Janet is responsible for the remaining 25%. Though, as

previously discussed, the trial court erred in finding that Kevin

should pay section 513 expenses that accrued prior to the filing

of Janet’s petition.

Next Kevin argues that the trial court ruling in the case at

bar is unjust because he did not receive notice that his children

were entering college and the costs involved.

While we note that the record shows that there was very

little contact between Janet, the three boys and Kevin since the

divorce, as the trial court noted, Janet testified that Kevin

will not communicate with her. Janet testified that she has sent

letters to Kevin regarding child support, medical expenses,

medical insurance payments and that he usually does not respond.

In addition, Kevin testified that he was aware that his children

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were attending college because he was informed by his mother.

Thus, we cannot say that the trial court’s ruling is unjust,

as Kevin claims, because the divorce judgment alerted him to his

potential future responsibility for educational expenses, the

record shows he knew his children were enrolled in college and he

made no effort to discuss the matter with the children or Janet.

Kevin claims the trial court failed to consider the standard

of living the children would have enjoyed had the marriage not

been dissolved. The record shows that prior to the divorce Kevin

worked as a surgeon and the family lived in an expensive home in

Winnetka, Illinois. The record also shows that at the time of

the hearing Kevin operated two medical businesses and lived in a

$1.6 million home in Nevada. As a result, we cannot say that

Kevin would have not been able to afford the college expenses of

his three boys had the marriage not been dissolved.

Kevin did not offer an analysis of the financial resources

of the children or the children’s academic performance. Janet

testified that all three boys work in the summers and use their

earnings for spending money. The record shows that they live

with their mother in Texas in the summers when not attending

school. Based on the record before us, we cannot reasonably

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assume the boys possess the funds to finance their college

education on their own. In regard to academic performance, we

have very little information in the record. Janet claims the

children have performed very well academically. Ian was not

accepted to the University of Texas as a freshman but was able to

transfer there after a year at Wake Forest University. Ellis

attends the California Polytechnic State University.

Based on the evidence in the record, we cannot say the trial

court’s ruling is arbitrary, fanciful, or unreasonable, or that

no reasonable person would take the view adopted by the trial

court. Koster, 235 Ill. 2d at 36. Therefore, we cannot say the

trial court abused its discretion when it required Kevin to pay

75% of his children’s college expenses.

Kevin also claimed the trial court lacked jurisdiction to

require him to pay for any educational expenses for Gregory, who

had already obtained a baccalaureate degree when Janet filed her

petition. We need not consider this issue because Gregory’s

college expenses accrued before the filing of Janet’s petition

and we have determined that under section 510 the court may not

order Kevin to pay for educational expenses that predate the

petition.

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CONCLUSION

For the foregoing reasons, we reverse in part and affirm in

part the June 17, 2008, order of the trial court and remand this

cause for further proceedings to determine the amount due from

Kevin for college expenses, consistent with this order. We

affirm the August 18, 2008, trial court order.

Affirmed in part and reversed in part; cause remanded.

TOOMIN, P.J., and FITZGERALD SMITH, J., concur.

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