In re Parentage of M.M. , 2015 IL App (2d) 140772 ( 2015 )

2015 IL App (2d) 140772No. 2-14-0772
Opinion filed March 26, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re PARENTAGE OF M.M. ) Appeal from the Circuit Court
) of Du Page County.
)
) No. 96-F-378
)
(Cliff M., Petitioner-Appellee, v. ) Honorable
Jennifer L. Barnhart, n/k/a Jennifer L. Lyons, ) Timothy J. McJoynt,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 M.M. is the college-aged daughter of petitioner, Jennifer L. Lyons, and respondent, Cliff
M., who were never married. Following a hearing on Jennifer’s petition for allocation of
M.M.’s educational expenses, the trial court apportioned the costs of attending Augustana
College among Cliff, Jennifer, and M.M. Jennifer appeals, arguing that she lacks the financial
resources to satisfy her court-ordered obligation and that the court improperly considered her
new husband’s income. We agree with Jennifer’s second argument, and we reverse the trial
court’s order and remand for further proceedings.
¶2 I. BACKGROUND
¶3 On December 5, 1996, Cliff filed a petition for declaration of a father/child relationship
with respect to M.M. On January 2, 1997, the trial court entered an order finding that Cliff was
2015 IL App (2d) 140772M.M.’s biological father. That order incorporated a settlement agreement (Agreement), which
included a joint parenting agreement. The parties agreed that Jennifer would have primary
residential custody of M.M. and that Cliff would pay $468 per month for child support. The
Agreement required Cliff to pay for M.M.’s medical insurance, but the parties agreed to equally
share any uncovered medical, dental, and optical expenses. If M.M. pursued a college
education, the parties’ obligations with respect to medical expenses would continue until she
completed her educational pursuits, discontinued her pursuits, or turned 23 years old.
¶4 The Agreement also provided that “[t]he issue of the responsibility for the child’s college
and/or trade school expenses shall be determined by the financial conditions of the parties at the
time said expenses are incurred.” The parties agreed that “[a]ll decisions affecting the child’s
education, including the choice of college or other institution, shall be made jointly by the parties
and shall consider the expressed preference of the child.” Such “obligation to provide the
education for the child” was conditioned upon (1) M.M. having “the desire and aptitude for a
college education or vocational education” and (2) the undergraduate education being limited to
four consecutive years beginning not more than one year after high school graduation, except in
the case of “serious illness or other good cause shown.”
¶5 On July 30, 2013, Jennifer filed a petition for modification of child support. That same
day, she also filed a petition for allocation of educational expenses in accordance with sections
510 and 513 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750
ILCS 5/510, 513 (West 2012)). On March 18, 2014, the court entered an agreed order
increasing Cliff’s child support obligation to $1,230 per month, retroactive to August 1, 2013.
Cliff’s obligation continued until August 14, 2014, when M.M. turned 18 years old.
-2-
2015 IL App (2d) 140772¶6 On June 19, 2014, the court held a hearing on Jennifer’s petition for allocation of
educational expenses. The parties stipulated to the following facts. The cost of attending
Augustana College, M.M.’s school of choice, for the 2014-15 school year was $51,403. The
cost of attending the University of Illinois would have been $30,450 to $35,454, depending on
the program. M.M. had been awarded $24,500 of assistance from Augustana for 2014-15,
which included a $22,000 presidential scholarship, an early-filing award of $500, and a $2,000
music scholarship. 1 The presidential scholarship is renewable each year if M.M. maintains a
3.0 grade point average. Apart from this assistance, she is eligible for $5,500 in federal direct
unsubsidized loans if she attends Augustana.
¶7 The parties also stipulated that Cliff’s gross income was $97,457.51 in 2010; $99,219.23
in 2011; $106,667.12 in 2012; and $100,752.29 in 2013. Cliff owns three properties, including
a house in Winfield, Illinois, with net equity of $32,532.19; a house in Lanark, Illinois, with net
equity of $161,086.04; and a lot in Lanark with net equity of $19,000. Cliff has a college
savings plan for M.M. worth $16,546.97, mutual funds with Edward Jones worth $35,679.31, a
brokerage account with Benjamin Edwards worth $16,499.48, and a Roth individual retirement
account (IRA) with Benjamin Edwards worth $19,011.25. Additionally, his pension will be
either $3,441 or $3,957 per month, depending on when he retires. Cliff also has a life insurance
policy with a cash value of $1,240.66 and a checking account of nominal value.
¶8 The parties stipulated that Jennifer had no gross income between 2010 and 2013.
However, she and her husband, Tim Lyons, jointly own a home in Batavia, Illinois, with net
1
Jennifer testified at the hearing that the music scholarship was for $2,500. Counsel did
not clarify whether Jennifer was mistaken as to the amount. The trial court ultimately allocated
expenses in light of a $2,000 music scholarship.
-3-
2015 IL App (2d) 140772equity of $51,617.14. She also has a life insurance policy with a surrender value of $4,272.61
and IRAs and a retirement annuity worth $38,072.58. She has checking and savings accounts
of nominal value.
¶9 Jennifer testified that she has been a stay-at-home mother since June 2000. Before that,
she worked full-time at Jenny Craig Weight Loss Center for 10 years and earned at most between
$27,000 and $34,000. She does not have a college degree or special training, qualifications, or
experience to boost her employability. She married Tim in July 2000, and they have two
children together: a 9-year-old daughter and a 10-year-old son. Their daughter has certain
health issues, and Jennifer homeschools her. At the time of the hearing, M.M. also resided with
Jennifer and Tim.
¶ 10 Jennifer testified that, apart from the child support that she was receiving at the time of
the hearing, she did not have any source of income. Tim, an engineer, paid all of the family’s
monthly expenses of about $7,600. Their joint income tax returns for 2010 through 2013 were
admitted into evidence, but they are not included in the record on appeal. Jennifer insisted that
she did not receive any of the money listed on the tax returns and that it was all Tim’s income.
¶ 11 Jennifer described her lifestyle as modest. She drove a 2005 Chrysler Town and
Country, although Tim owned a BMW. 2 Tim did not give her an allowance, and they did not
have any joint bank accounts. Nor did she have access to Tim’s bank accounts. She did have
credit cards for household expenses, but Tim paid those bills. She also had checking and
savings accounts worth $2,400, into which she deposited her child support payments.
Additionally, although she and Tim jointly owned their home, she recently attempted to take out
2
According to Jennifer’s financial disclosure statement dated June 11, 2014, she and Tim
also jointly owned a Ford Explorer acquired in 2003.
-4-
2015 IL App (2d) 140772a line of credit to see if she could do so without her husband’s agreement, and she was denied.
Although she had retirement accounts, she could not use her IRA funds without incurring
penalties and taxes.
¶ 12 Jennifer testified that, at the time of the hearing, M.M. was 17 years old and was enrolled
at Augustana for the upcoming school year. Jennifer acknowledged that M.M. had the time,
desire, and aptitude for a college education. However, Jennifer believed that it was not
necessary for her daughter to attend Augustana and said that M.M. could attend a junior college
for $4,000 per year. When Cliff enrolled M.M. at Augustana, Jennifer had not agreed that
M.M. could attend that school.
¶ 13 According to Jennifer, she did not have the financial resources to pay for any of M.M.’s
college expenses. Specifically, she did not have an agreement with Tim to help her pay. Nor
did she and Tim have college savings accounts set up for the two children they had together.
Nevertheless, Jennifer indicated a willingness to contribute by continuing to pay one-half of
M.M.’s uncovered medical and dental costs, providing room and board during school breaks, and
relinquishing a tax write-off.
¶ 14 Jennifer recalled a conversation with Cliff in May 2002, during which he told her that she
“didn’t have to worry,” because his father had left enough money to take care of M.M.’s college.
Jennifer also testified that, pursuant to the 1997 court order, Cliff paid her $468 per month for
child support until she petitioned for an increase in 2013. She claimed that the reason that she
did not file a petition to increase support until 2013 was that she believed that Cliff would pay
for M.M.’s college education. Jennifer testified that she was not able to save any of the child
support money in a college savings account, because the amount she received was “barely
-5-
2015 IL App (2d) 140772enough to cover the bills.” The $468 per month that she received for child support was used to
pay M.M.’s expenses.
¶ 15 Cliff also testified at the hearing. He was not married, and he had no children to support
other than M.M. He was employed as a firefighter, and he planned to retire in a year or two.
He also owned a construction company that was formed in February 2013, but that company had
no profit. He explained that he had approximately $35,700 in mutual funds with Edward Jones,
which came from a lawsuit involving a 1992 accident. His Benjamin Edwards brokerage
account, worth approximately $16,500, also came from a 1992 accident, but it was not clear from
his testimony whether this was the same incident.
¶ 16 Cliff testified that he inherited approximately $100,000 when his father passed away in
April 2001. He used that money to rebuild his home. Cliff’s father also left M.M. $10,000
toward her education, and Cliff invested that in a college savings plan. He acknowledged
having a conversation with Jennifer in May 2002, but he denied having said that the $100,000 he
inherited was going to be used for M.M.’s education. Instead, he had explained to Jennifer that
he received $10,000, which he was directed, as the executor of his father’s estate, to apply to
M.M.’s college education.
¶ 17 Cliff testified that he owned a 2004 Chevy Tahoe and an all-terrain vehicle. He also
recently purchased a 2008 Chevy pickup truck, on which he was making payments. His
average monthly income was approximately $8,200, and his total deductions and expenses
(excluding child support) were $6,665. Therefore, when his child support obligations ended in
August 2014, he would have discretionary income of approximately $1,535 per month.
¶ 18 According to Cliff, Jennifer suggested, and he agreed, that M.M. should attend
Augustana. He enrolled his daughter at Augustana but denied having done so without
-6-
2015 IL App (2d) 140772Jennifer’s permission. He did not believe that he had the financial ability to pay on his own for
M.M. to attend Augustana, but he acknowledged that he should contribute to the expenses.
¶ 19 In her closing arguments, Jennifer suggested that the Agreement, which referenced the
parties’ “financial conditions,” not their “resources,” might not be governed by section 513 of the
Dissolution Act. She also argued that she had “very limited resources” and that her “financial
condition is that of someone who is broke.” She noted that her employability was “dismal,”
lacking a college degree and having been out of the workforce since 2000. She emphasized that
she was “prohibited from finding a job,” because she had children to care for, including one
whom she must homeschool. According to Jennifer, she had no financial ability to pay any
portion of M.M.’s college expenses, and if she were held in contempt of court for not paying, the
“only way she will get bailed out” is if Tim gives her money.
¶ 20 Jennifer acknowledged that case law allows a court to consider a new spouse’s income.
However, she argued that a court may do so only “to the extent it frees up the other parent’s
ability to pay, use their [sic] income to contribute toward support.” She contended that, because
she had no income, the court should not “look at” Tim’s income. Furthermore, she argued that
Tim’s payment of her living expenses did not constitute a gift under In re Marriage of Rogers,
213 Ill. 2d 129, 137 (2004) (holding that monetary gifts from one’s parents constitute income for
purposes of modifying a child support obligation). Finally, she argued that, if M.M. attended
Augustana rather than a community college, M.M.’s inheritance money should be applied first,
followed by the scholarships, and then Cliff should bear the majority of the remaining
responsibility. Specifically, Jennifer proposed that her obligation should be to provide room
and board during breaks and to continue contributing toward uncovered medical and dental
expenses.
-7-
2015 IL App (2d) 140772¶ 21 In his closing arguments, Cliff first noted that Jennifer had filed her petition pursuant to
section 513 of the Dissolution Act. He argued that “all roads lead to the Drysch decision” (In
re Marriage of Drysch, 314 Ill. App. 3d 640 (2000)) and that Tim’s income “can and must be
considered” by the court. Apparently referring to the joint tax returns admitted into evidence,
Cliff noted that Tim annually earned between $119,000 and $160,000 over the past four years
and paid all of Jennifer’s family expenses.
¶ 22 The court found that the Agreement was “not a straight reservation” of the issue of
college expenses. Instead, it created a contractual obligation for the parties to pay for college.
The court “disagree[d] that [section] 513 is not part of the paternity proceedings,” because that
statute “has been incorporated in the paternity cases by case law.” Nevertheless, the court
deemed that issue irrelevant, because the Agreement “sets up a college obligation that was
reserved to be determined later.”
¶ 23 The court explained that Cliff and Jennifer “got a windfall,” because M.M.’s expenses
were reduced by scholarships, which made the cost of Augustana similar to that of the University
of Illinois. The court indicated that it did not give much weight to “the cheaper choice
alternative,” finding that there was “a joint decision that the parties came to together, at least
discussed.” Additionally, with respect to Jennifer’s testimony about her conversation with Cliff
in 2002 in which he allegedly told her that his father had left enough money to take care of
M.M.’s college, the court determined that there was not enough evidence to find an oral contract
between the parties. Nor did the court credit Jennifer’s defense that she held off on seeking an
increase in child support in light of the alleged 2002 agreement.
¶ 24 The court said that it was Jennifer’s choice to be a homemaker and found that she
“clearly has imputed income from her current spouse.” The court indicated that Tim “makes
-8-
2015 IL App (2d) 140772around [$]130,000 a year,” except for 2013, when his income went down a little bit. The court
emphasized that Jennifer was not disabled and was “not unable to work” but, rather, was
“basically choosing to do this sort of lifestyle.” The court found that Jennifer’s election to be a
housewife was not a defense and did not negate her contractual obligation to pay.
¶ 25 The court clarified that it was not “giving a Rogers analysis,” but concluded that Jennifer
had imputed income. Specifically, the court stated that it could consider, under section 513 of
the Dissolution Act, Jennifer’s entire economic circumstances, including “her current husband
who is paying for everything.” Accordingly, the court determined, Jennifer “does have income,
the current income from her engineer husband.” Nevertheless, the court recognized that
Jennifer’s and Cliff’s incomes, estates, holdings, and assets were disparate. The court added
that, even though Cliff and Jennifer were not together anymore, they still had an obligation to
M.M. To that end, the court suggested that if the parties were still together they would “pony
up and maybe *** have to borrow some money.”
¶ 26 The court’s allocation of expenses was ultimately reduced to a written order on July 17,
2014. For the first year of college, the court found that there remained $26,903 in uncovered
expenses (the $51,403 cost of attendance minus $24,500 in scholarships). The court ordered
that the first $5,000 of those uncovered expenses would come from the college savings plan
controlled by Cliff. Jennifer would then be responsible for $8,761 of the remaining expenses,
and Cliff would be responsible for $13,142. For the second and third years of college, the first
$4,000 would come from the college savings plan. M.M. would then be responsible for 22% of
the total remaining expenses, which could be satisfied in full or in part by her scholarships. To
the extent that the scholarships exceed M.M.’s 22% obligation, the excess scholarship amount
would be credited to Cliff and Jennifer. Jennifer would be responsible for 33% of the
-9-
2015 IL App (2d) 140772remaining expenses, and Cliff would be responsible for 45%. The arrangement for the fourth
year of college is the same as for the second and third years, except that the balance of the
college savings plan, rather than a fixed amount therefrom, will be used first.
¶ 27 Jennifer timely appeals.
¶ 28 II. ANALYSIS
¶ 29 Jennifer argues that the trial court erred in allocating responsibility for M.M.’s college
expenses. Specifically, she contends that she does not have the financial resources to satisfy
her obligation and that the court improperly considered Tim’s income. For the reasons that
follow, we agree that the court erred in imputing Tim’s income to Jennifer. Therefore, we
reverse and remand for further proceedings.
¶ 30 As an initial matter, we note that Jennifer does not contest the trial court’s finding that the
Agreement created a contractual obligation to pay for M.M.’s college expenses. Nor do the
parties appear to dispute that our resolution of this appeal requires us to consider section 513 of
the Dissolution Act and the cases interpreting that statute. The Agreement provides that “[t]he
issue of the responsibility for the child’s college and/or trade school expenses shall be
determined by the financial conditions of the parties at the time said expenses are incurred.”
(Emphasis added.) Section 513 states that one of the factors to consider is the “financial
resources of both parents.” (Emphasis added.) 750 ILCS 5/513(b)(1) (West 2012). In the
trial court, Jennifer questioned in her closing arguments whether section 513 applied to this case.
Nevertheless, on appeal, she does not challenge the applicability of section 513 and does not
attempt to distinguish between “financial conditions” and “financial resources.”
¶ 31 The parties disagree as to the proper standard of review. Cliff proposes that the
abuse-of-discretion standard is appropriate. Jennifer acknowledges that this court has reviewed
- 10 -
2015 IL App (2d) 140772orders pursuant to section 513 for abuse of discretion (see In re Marriage of Thomsen, 371 Ill.
App. 3d 236, 243 (2007)), but notes that the supreme court applied the
manifest-weight-of-the-evidence standard in In re Support of Pearson, 111 Ill. 2d 545, 552
(1986). See also In re Marriage of Cianchetti, 351 Ill. App. 3d 832, 834 (2004) (“A trial court’s
decision to award educational expenses will be overturned only if it is against the manifest weight
of the evidence.”). It is true that the court in Pearson held that the trial court’s judgment was
not against the manifest weight of the evidence. Pearson, 111 Ill. 2d at 552. However, the
court also said that section 513 “states that the court ‘may’ order a party to provide resources for a
child’s education [citation], and we think this language makes it plain that the legislature intended
that the matter be addressed to the trial court’s discretion.” Pearson, 111 Ill. 2d at 551. We need
not resolve this issue, because we would reverse under either standard of review.
¶ 32 Section 513 of the Dissolution Act allows a court, in certain circumstances, to “award
sums of money out of the property and income of either or both parties ***, as equity may require,
for the support of the child or children of the parties who have attained majority.” 750 ILCS
5/513(a) (West 2012). One such circumstance is to “make provision for the educational expenses
of the child or children of the parties.” 750 ILCS 5/513(a)(2) (West 2012). When awarding
educational expenses, relevant factors to consider include: (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; and (4) the child’s academic performance. 750
ILCS 5/513(b) (West 2012). Only the first factor is specifically at issue in this appeal.
¶ 33 The trial court imputed Tim’s income to Jennifer. The court’s comments suggest that it
deemed Tim’s income to be available to her for purposes of contributing to M.M.’s college
expenses. As explained below, the court was entitled to consider Tim’s income and assets to
- 11 -
2015 IL App (2d) 140772the extent that his assistance frees up Jennifer’s own income and assets for contribution.
However, Drysch and its progeny do not provide a mechanism for imputing a new spouse’s
income to the other spouse. Nor did the court make the necessary factual findings to impute
income to Jennifer based on voluntary unemployment, an attempt to evade a support obligation,
or an unreasonable failure to take advantage of an employment opportunity.
¶ 34 In Drysch, we held that a court may consider, as part of a parent’s “financial resources”
for purposes of section 513, “money or property that could be available to [the parent] through
her new spouse.” Drysch, 314 Ill. App. 3d at 645. Significantly, we did not explain exactly
how a court may consider a new spouse’s income. In that case, pursuant to a marital settlement
agreement, the judgment of dissolution included a provision for college expenses invoking the
considerations of section 513. Drysch, 314 Ill. App. 3d at 641-42. The mother, Vicky, filed a
petition seeking contribution for college expenses from the father, Mark. Drysch, 314 Ill. App.
3d at 642. The evidence showed that Vicky worked as a real-estate agent with her new
husband, Alex. Drysch, 314 Ill. App. 3d at 642. Alex paid Vicky $50,000 per year, and they
pooled their money to meet expenses. Drysch, 314 Ill. App. 3d at 642. Alex and Vicky
reported a gross income of $621,000 on their joint tax return for 1998. Drysch, 314 Ill. App. 3d
at 642-43. The trial court admitted the tax return into evidence over Vicky’s objection,
reasoning that it was relevant in light of evidence that Vicky and Alex comingled money and the
payment of expenses. Drysch, 314 Ill. App. 3d at 643. The court ordered Mark to pay 10% of
the child’s college expenses, and Vicky appealed, arguing, among other things, that the court
erred in considering Alex’s income in determining the amount that Mark should contribute.
Drysch, 314 Ill. App. 3d at 643.
- 12 -
2015 IL App (2d) 140772¶ 35 On appeal, we examined whether Alex’s income constituted part of Vicky’s “financial
resources” to be considered under section 513. We observed that “[t]he term ‘resources’ has
been defined as ‘[m]oney or any property that can be converted to meet needs’ as well as the
‘available means or capability of any kind.’ ” Drysch, 314 Ill. App. 3d at 644 (quoting Black’s
Law Dictionary 1178 (5th ed. 1979)). We reasoned that “[b]ased on the use of the word
‘resources,’ rather than a more narrow term, such as ‘income’ or ‘salary,’ we believe that the
legislature intended that the trial court consider all the money or property to which a parent has
access.” Drysch, 314 Ill. App. 3d at 644-45. We said that “[t]his may include that parent’s
income, her property and investment holdings, as well as money or property that could be
available to her through her new spouse.” Drysch, 314 Ill. App. 3d at 645.
¶ 36 We found it significant that Vicky and Alex “pooled their income and money to pay their
family expenses,” because this made it “necessary for the trial court to consider her current
husband’s income in order to attain a complete grasp of her financial resources.” Drysch, 314
Ill. App. 3d at 645. A contrary ruling “would defeat the plain language of section 513 by
permitting Vicky to shield some of her financial resources from the trial court’s consideration.”
Drysch, 314 Ill. App. 3d at 645. We acknowledged the traditional rule that “the financial status
of the custodial parent’s current spouse is not considered in proceedings to modify child
support,” noting that the rule “developed because the new spouse has no legal obligation for the
support of his stepchildren.” Drysch, 314 Ill. App. 3d at 645. Nevertheless, we perceived that
“the law on this subject is evolving.” Drysch, 314 Ill. App. 3d at 646. Accordingly, we held
that “a trial court may equitably consider the income of a parent’s current spouse in determining
an appropriate award of child support.” Drysch, 314 Ill. App. 3d at 646.
- 13 -
2015 IL App (2d) 140772¶ 37 Unlike the court in Drysch, the court in Street v. Street, 325 Ill. App. 3d 108 (2001),
specifically addressed the issue of how a trial court may consider a new spouse’s income. In
that case, the dissolution judgment reserved the issue of college expenses, and the mother, Linda,
filed a petition seeking contribution from the father, Daniel. Street, 325 Ill. App. 3d at 110-11.
The evidence showed that Linda had a net monthly income of $1,746 and received $860 per
month in child support. Street, 325 Ill. App. 3d at 111. Linda and her current husband, Carl,
jointly owned a home with $50,000 equity. Street, 325 Ill. App. 3d at 111. They also had a
joint bank account and a mutual fund worth $25,000. Street, 325 Ill. App. 3d at 111. Linda
refused to produce any documents pertaining to Carl’s income and assets. Street, 325 Ill. App.
3d at 111. The trial court allowed some questioning as to Linda’s and Carl’s joint assets, but
did not permit inquiry as to Carl’s assets or income. Street, 325 Ill. App. 3d at 111-12. The
court ordered Daniel to pay $9,000 toward the child’s 2001-02 tuition at Bradley University in
addition to $235 per month for living expenses while the child lived with Linda. Street, 325 Ill.
App. 3d at 112. Daniel appealed, arguing that the court erred in denying discovery or inquiry
into Carl’s income and assets. He also contended that the court erred in ordering him to
contribute to the cost of private schooling.
¶ 38 The appellate court recognized the current trend of departing from the traditional rule that
“the financial assets of the current spouse are not relevant in making a support determination.”
Street, 325 Ill. App. 3d at 114. The court believed that, although each of the cases that it
surveyed had involved the current spouse of the payor, “the same underlying principle should
apply to the current spouse of the payee.” Street, 325 Ill. App. 3d at 114. The court
explained:
- 14 -
2015 IL App (2d) 140772“To the extent that the current spouse of the payee has income or assets which are or can
be used to contribute to the living expenses of the payee, his or her income and assets
should be considered by the court in making its determination regarding the amount the
payee is able to contribute to the child’s education. Certainly, we are not saying that the
new spouse of a parent is obligated to pay for the child’s education, but only that to the
extent the new spouse contributes to the expenses which would otherwise be paid by the
parent, the new spouse’s income and assets are relevant.” Street, 325 Ill. App. 3d at
114.
Accordingly, the court followed Drysch and held that “failing to consider Carl’s income and
assets to the extent they are or can be used to contribute to Linda’s expenses constitutes an abuse
of discretion.” Street, 325 Ill. App. 3d at 114-15. The court remanded the matter for
additional discovery regarding Carl’s income and assets and ordered further hearings as to
Linda’s ability to contribute to college expenses. Street, 325 Ill. App. 3d at 115.
¶ 39 In rejecting Daniel’s second argument—that the trial court erred in ordering him to
contribute to the cost of private schooling—the court in Street noted that Daniel’s assets were
greater than the assets owned solely by Linda. Street, 325 Ill. App. 3d at 116. According to
the court, while the trial court was to consider Carl’s income and assets, it could do so only “to
the extent that they assist Linda in paying her monthly expenses and free up some of her income
for assisting [the child].” Street, 325 Ill. App. 3d at 116. The court rejected the notion that
Carl’s income and assets should be considered in determining Daniel’s ability to contribute
toward college expenses. Street, 325 Ill. App. 3d at 116.
¶ 40 Several cases have subsequently reinforced Street’s approach to considering a new
spouse’s income for purposes of section 513. In Cianchetti, the father argued that the trial court
- 15 -
2015 IL App (2d) 140772erred in ordering him to pay 50% of his two daughters’ college expenses. Cianchetti, 351 Ill.
App. 3d at 833. In its analysis, the court noted that the trial court could properly consider the
“significant support” that the mother’s new husband offered, which made much of the mother’s
own $42,000 annual income “disposable.” Cianchetti, 351 Ill. App. 3d at 835. Citing Street,
the court declared that “[a]lthough [the mother’s] new husband is not obligated to pay for her
children’s tuition, and his income should not be used to determine her ability to pay tuition, it is
properly used to examine the extent to which her income can be freed through reliance on her
husband for support.” Cianchetti, 351 Ill. App. 3d at 835 (citing Street, 325 Ill. App. 3d at
114). Similarly, in In re Marriage of Deike, 381 Ill. App. 3d 620 (2008), which involved a
judgment of dissolution providing that each parent was responsible for 50% of the children’s
college expenses, the court stated: “As with any other form of child support, a trial court can
consider the parties’ assets and other elements of financial resources, even the financial status of
a current spouse, to determine whether payment of support would endanger the ability of the
support-paying party and that party’s current spouse to meet their needs.” Deike, 381 Ill. App.
3d at 627 (citing In re Marriage of Keown, 225 Ill. App. 3d 808, 813 (1992)).
¶ 41 The present matter is distinguishable from the above cases, because Jennifer is a
stay-at-home mother who relies on her new husband for just about all of her financial support.
Furthermore, unlike the mothers in Drysch and Street, Jennifer testified that she did not have
access to Tim’s accounts and that she and Tim did not have any joint accounts.
¶ 42 Nevertheless, we find the above cases to be instructive. One of the reasons for our
decision in Drysch was the need to consider the new husband’s income to get a complete picture
of the mother’s financial resources. Another reason articulated was not to allow the mother to
shield some of her financial resources from the court’s consideration. Drysch, 314 Ill. App. 3d
- 16 -
2015 IL App (2d) 140772at 645. These same concerns are present in this case. Section 513 allows the trial court to
“award sums of money out of the property and income of either or both parties.” 750 ILCS
5/513(a) (West 2012). While Jennifer earns no income, she does have certain property, however
minimal, including a home, which she owns jointly with her husband; a life insurance policy with
a surrender value of $4,272.61; IRAs and a retirement annuity worth $38,072.58; and bank
accounts worth $2,400 at the time of the hearing. It was therefore necessary and appropriate for
the trial court to consider Tim’s income in order to get a complete picture of Jennifer’s resources.
As in Drysch, to hold otherwise would allow Jennifer to shield resources from the court’s
consideration.
¶ 43 However, the court should not have used Tim’s income as the baseline for determining
Jennifer’s contribution toward M.M.’s college expenses. In other words, we find no basis in
Drysch and its progeny for the court to impute Tim’s income to Jennifer. By doing so, the court
effectively shifted the burden to Tim to pay for M.M.’s college expenses, something that he has
no legal obligation to do. See Drysch, 314 Ill. App. 3d at 645 (noting that the traditional
rule—that the financial status of a current spouse should not be considered—“developed because
the new spouse has no legal obligation for the support of his stepchildren”). Consequently, the
court’s allocation of responsibility for college expenses, which was premised on imputing Tim’s
income to Jennifer, was erroneous.
¶ 44 To the extent that the trial court’s order could be construed as imputing income to
Jennifer on some other basis, this was also improper, absent the necessary factual findings.
“The imputation of income arose in response to noncustodial parents who experienced a reduction
in income and sought a corresponding decrease in child support. When the custodial parent
questioned the motives of the payor, courts answered by imputing income when appropriate.” In
- 17 -
2015 IL App (2d) 140772re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (2009). In order to impute income to a
party, the court must find that the party is voluntarily unemployed, is attempting to evade a
support obligation, or has unreasonably failed to take advantage of an employment opportunity.
Gosney, 394 Ill. App. 3d at 1077. “[I]f a court finds that a party is not making a good-faith effort
to earn sufficient income, the court may set or continue that party’s support obligation at a higher
level appropriate to the party’s skills and experience.” In re Marriage of Sweet, 316 Ill. App. 3d
101, 107 (2000); see also In re Marriage of Pratt, 2014 IL App (1st) 130465, ¶ 26 (“[I]n
determining income for child support purposes, the trial court has the authority to compel a party
to pay at a level commensurate with his earning potential. [Citation.] If present income is
uncertain, the trial court may impute income to the payor.”). In the present case, the trial court did
not impute income to Jennifer in an amount commensurate with her own skills and experience.
Instead, it imputed Tim’s income to her. There was no evidence to support a conclusion that
Jennifer could earn approximately $130,000 per year, as Tim does, if she reentered the workforce.
Therefore, to the extent that the court imputed income based on Jennifer’s voluntary
unemployment, it erred in not determining an amount commensurate with her skills and
experience. Nor did the court find that Jennifer was attempting to avoid a support obligation or
that she had forgone an employment opportunity.
¶ 45 We recognize that we review the trial court’s judgment, not its reasoning, and that we
may affirm on any basis in the record. See In re Marriage of Petrik, 2012 IL App (2d) 110495,
¶ 33 (“ ‘[T]his court is not bound by the trial court’s reasoning and may affirm on any basis
supported by the record, regardless of whether the trial court based its decision on the proper
grounds.’ ” (quoting Mutual Management Services, Inc. v. Swalve, 2011 IL App (2d) 100778,
¶ 11)). However, we cannot ascertain from the record whether the trial court would have
- 18 -
2015 IL App (2d) 140772ordered Jennifer to contribute the same amount toward college expenses had it not imputed
Tim’s income to her. Accordingly, we reverse the July 17, 2014, order and remand for further
proceedings consistent with this opinion. In its discretion, the trial court may, but need not,
hear additional evidence or argument, or both.
¶ 46 III. CONCLUSION
¶ 47 The judgment of the circuit court of Du Page County is reversed, and the cause is remanded
with directions.
¶ 48 Reversed and remanded with directions.
- 19 -