In re Marriage of Baumgartner

Docket No. 109047.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
________________
In re MARRIAGE OF SUSAN LYNN BAUMGARTNER, Appellee,
and CRAIG BAUMGARTNER, Appellant.
Opinion filed May 20, 2010.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
In their judgment for dissolution of marriage, Susan Lynn
Baumgartner (Susan) and Craig Baumgartner (Craig) agreed to
contribute to the postsecondary education expenses of their son,
Maxwell Baumgartner (Max). The circuit court of Cook County
terminated Craig’s obligation to contribute to Max’s postsecondary
education expenses. A divided panel of the appellate court reversed
the order of the circuit court. 393 Ill. App. 3d 297. This court allowed
Craig’s petition for leave to appeal. 210 Ill. 2d R. 315. We now affirm
the judgment of the appellate court, which reversed the order of the
circuit court, and we remand the cause to the circuit court for further
proceedings.
BACKGROUND
In April 1998, the circuit court dissolved the marriage of Susan
and Craig. They had one child, Max, who was 10 years old at the time
of the dissolution. A marital settlement agreement was incorporated
into the judgment for dissolution of marriage. Pursuant to the
agreement, Susan and Craig were awarded joint custody of Max, who
would reside with Craig and have liberal visitation with Susan. 1
The marital settlement agreement also addressed Max’s
postsecondary education expenses as follows:
“2.16 CRAIG and SUSAN shall be responsible for post
high school educational expenses for their child as provided by
the applicable section of the Illinois Marriage and Dissolution
of Marriage Act in force when Max is ready to incur these
expenses. CRAIG shall continue to maintain the Florida Pre-
Paid tuition and dorm college account with combined deposits
currently valued at $4000.00. The Parties’ obligation for
college educational expenses will be reduced by the value of
this account when Max begins his post high school education.
2.17 The Parties’ obligation in this regard shall only be
conditioned upon the ability to pay these expenses when
incurred, and the child’s desire and ability to further his
education.”
Also, section 2.18 provided: “Both parties shall maintain a life
insurance policy paying death benefits to the surviving parent, as
trustee for Max, of not less than $50,000.00, until such time as he has
finished college or graduate school. This obligation shall not continue
beyond Max’s twenty-fifth birthday.”
In January 2008, Craig filed a motion to amend the dissolution
judgment pertaining to Max’s postsecondary education expenses. In
1
In 2001, the circuit court entered an agreed order modifying the
dissolution judgment. Although the original dissolution judgment provided
that Max would reside with Craig, the court found that Max actually had
been residing primarily with Susan for approximately 2½ years. The court
also found that Craig had obtained new employment in California and had
moved there in 2001. Craig and Susan agreed that it would be in Max’s best
interests that he reside with Susan and have liberal visitation with Craig.
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April 2008, Susan filed an answer to Craig’s motion, in which she
admitted the following allegations by Craig. Max was born on July 23,
1987. He graduated from high school in June 2005. Thereafter, Max
attended one or two semesters at Oakton Community College. Max
was convicted of one count of criminal sexual abuse, a Class 4 felony
(720 ILCS 5/12–15(a)(2), (d) (West 2008)) and one count of indecent
solicitation of a child, also a Class 4 felony (720 ILCS 5/11–6(a–5)
(West 2008)). He was sentenced to three years’ imprisonment on each
count. Max had been incarcerated since October 2007, his projected
parole date was April 9, 2009, and his projected discharge from parole
was on April 9, 2010. Further, as a condition of Max’s sentence, he
will be required to register as a sex offender.
However, Susan denied Craig’s remaining allegations. Craig
alleged that Max graduated at the bottom of his high school class and
received failing or poor grades while enrolled in the community
college. Also, as a result of his conviction and sentence, Max will be
prohibited from being in the vicinity of any public park and any public
or private school. Craig alleged that Max’s incarceration was a change
of circumstances from the time of the entry of the original dissolution
judgment. According to Craig, given section 2.17 of the dissolution
judgment, in which the parties’ obligation for postsecondary education
expense is conditioned “on the child’s desire and ability to further his
education,” coupled with Max’s poor academic performance and his
three-year incarceration, it was unlikely that Max would pursue any
form of postsecondary education prior to age 23. Craig concluded that
it was “no longer in the best interest of this family to enforce
Section[s] 2.16 and 2.17.” Craig requested that “both parties be
relieved of any and all obligations under 2.16 and 2.17.”
Craig also alleged that “the life insurance provision in Section 2.18
was intended to provide for Maxwell’s college education if one or
both of his parents dies prior to graduation from college and were thus
incapable of fulfilling their obligations under Section 2.16 regarding
college education expenses.” Further, according to Craig, “although
[he] has faithfully maintained a life insurance policy in the amount of
$50,000.00 in compliance with Section 2.18, the continued payment
of the policy premium is onerous and no longer in the best interests of
the family in light of Maxwell’s lengthy incarceration.” Susan denied
these allegations. Craig requested an order that section 2.18 of the
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dissolution judgment be eliminated.
On April 25, 2008, the circuit court held a hearing on several post-
dissolution matters, including Craig’s motion to relieve the parties of
their obligation for Max’s postsecondary education expenses. The
parties argued whether Max’s incarceration constituted a sufficient
change of circumstances as to require amending the dissolution
judgment as Craig requested. The court did not hear any testimony or
receive any evidence on Craig’s motion. Rather, the circuit court sua
sponte ruled that “the child’s incarceration is a full emancipation of
that child; and therefore any future obligation on the part of Mr.
[Craig] Baumgartner to pay for college is abated as of this time.” The
circuit court denied Susan’s motion for reconsideration.
A divided panel of the appellate court reversed the order of the
circuit court. 393 Ill. App. 3d 297. The appellate court concluded:
“We find no authority to support the argument that Illinois would
recognize incarceration as a self-emancipating event ***. Therefore,
the trial court erred when it ordered the termination of Craig’s
obligation to contribute to Max’s education expenses solely on the
basis of Max’s incarceration.” 393 Ill. App. 3d at 301. The dissenting
justice concluded that Max’s felony convictions constituted his
abandonment of “any pursuit of a higher education.” 393 Ill. App. 3d
at 301 (Wolfson, J., dissenting).
Craig appeals to this court. Additional pertinent facts will be
discussed in the context of our analysis of the issues.
ANALYSIS
The “Argument” section of Craig’s petition for leave to appeal
consists of one double-spaced, 10-line paragraph. We take this
opportunity to remind appellants who allow their petitions for leave
to appeal to stand as their appellants’ briefs that “[a] reviewing court
is entitled to have the issues clearly defined with pertinent authority
cited and is not simply a depository in which the appealing party may
dump the burden of argument and research.” Pecora v. Szabo, 109 Ill.
App. 3d 824, 825-26 (1982). However, despite the paucity of Craig’s
submission, we can discern the question sought to be resolved.
Moreover, Susan has not objected to Craig’s petition for leave to
appeal. Accordingly, we will exercise our discretion in this matter and
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address this issue on the merits. See, e.g., People ex rel. Carter v.
Touchette, 5 Ill. 2d 303, 305 (1955); People v. Jung, 192 Ill. 2d 1, 12-
13 (2000) (Freeman, J., specially concurring, joined by Miller and
McMorrow, JJ.); Niewold v. Fry, 306 Ill. App. 3d 735, 736-37
(1999).
Craig contends that the circuit court correctly ruled that
incarceration, as a matter of law, emancipated Max, thereby
terminating Craig’s postsecondary education expense obligation.
Craig posits that additional evidence is not needed. In response, Susan
contends that incarceration is not an emancipating event that would
terminate a parent’s child support obligation.
In the present case, the circuit court ruled that Max’s
incarceration, by itself, constituted a “full emancipation,” which
relieved Craig of his obligation to contribute to Max’s postsecondary
education expenses. The appellate court reversed, finding “no
authority to support the argument that Illinois would recognize
incarceration as a self-emancipating event such as marriage or military
service.” 393 Ill. App. 3d at 301. The appellate court correctly
recognized that this is a matter of first impression in Illinois.2 We
acknowledge that: “Increasingly, courts are hearing cases concerning
the issue of ‘emancipation’ in the parent-child relationship.” Note,
Don’t Come Cryin’ to Daddy! Emancipation of Minors: When is a
Parent ‘Free at Last’ from the Obligation of Child Support?, 33 U.
Louisville J. Fam. L. 927 (1995). The analyses of the lower courts,
and the arguments of counsel before this court, require a thorough
discussion of the pertinent Illinois statute and case law from Illinois
and foreign jurisdictions.
Statutory Provisions Governing Child Support
The provisions of the Illinois Marriage and Dissolution of
Marriage Act (Act) “do not extend the parental obligation for support
beyond minority except in limited statutory situations *** [or] unless
otherwise agreed in writing or by court order.” Finley v. Finley, 81 Ill.
2
Indeed, this court has not addressed the issue of self-emancipation
generally since the 1920s. See, e.g., Peters v. Industrial Comm’n, 314 Ill.
560 (1924).
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2d 317, 326 (1980). In the present case, the dissolution judgment
provided that Susan and Craig would be responsible for Max’s
postsecondary education expenses “as provided by the applicable
section of the [Act] in force when Max is ready to incur these
expenses.” Section 513(a) of the Act currently provides in pertinent
part:
“The court may award sums of money out of the property
and income of either or both parties or the estate of a
deceased parent, as equity may require, for the support of the
child or children of the parties who have attained majority in
the following instances:
***
(2) The court may also make 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, or the death of either parent.
The authority under this Section to make provision for
educational expenses extends not only to periods of
college education or professional or other training after
graduation from high school, but also to any period during
which the child of the parties is still attending high school,
even though he or she attained the age of 19. The
educational expenses *** 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.” 750 ILCS 5/513(a)(2)
(West 2008).
When making awards pursuant to section 513(a)(2), or when
modifying or terminating the award, “the court shall consider all
relevant factors that appear reasonable and necessary.” 750 ILCS
5/513(b) (West 2008). Among other factors to consider is whether the
nonminor child actually will incur education expenses. “If the child has
no need or a lesser need for educational expenses when the child
decides to go to college, a modification of the court’s payment order
can be sought by either parent.” In re Marriage of Alltop, 203 Ill.
App. 3d 606, 617 (1990). In the present case, Craig alleged that Max
probably would not pursue any form of postsecondary education in
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the near future, based on Max’s alleged poor academic record in high
school and three-year incarceration. For that reason, Craig sought
termination of his and Susan’s education expense obligation.
However, the circuit court terminated Craig’s obligation to
contribute to Max’s postsecondary education expenses based not on
Craig’s allegations of changed circumstances, but rather on the court’s
sua sponte conclusion that Max’s incarceration constituted his
emancipation. Section 510(d) of the Act provides in pertinent part:
“Unless otherwise provided in this Act, or as agreed in writing or
expressly provided in the judgment, provisions for the support of a
child are terminated by emancipation of the child ***.” 750 ILCS
5/510(d) (West 2008). Since section 513(a)(2) specifically provides
for awards for education expenses even if the child reaches majority,
but does not specifically allow awards in other emancipating
circumstances, then a circuit court may award education expenses for
a child who is emancipated by reaching majority age, but not by other
means. See In re Marriage of Walters, 238 Ill. App. 3d 1086, 1092
(1992). Thus, while recognizing that Max was 20 years old at the time
of the circuit court’s order, we must consider whether Max was
emancipated by any means other than reaching majority age.
Emancipation of Minors
“The relationship of parent and child gives rise to certain parental
rights and duties and also to rights and duties of the child. The partial
or total destruction of these rights is often referred to in the law as
emancipation ***.” Niesen v. Niesen, 38 Wis. 2d 599, 602, 157
N.W.2d 660, 662 (1968). In other words, emancipation, “ ‘as the term
is used in the law of parent and child, means the freeing of the child
for the period of its minority from the care, custody, control, and
service of its parents.’ ” Wulff v. Wulff, 243 Neb. 616, 620, 500
N.W.2d 845, 850 (1993), quoting Wadoz v. United National
Indemnity Co., 274 Wis. 383, 388, 80 N.W.2d 262, 265 (1957);
accord Green v. Green, 447 N.E.2d 605, 609 (Ind. App. 1983)
(“Emancipation frees a child from the care, custody and control of its
parent for the remainder of the child’s minority”). Indeed, to the
extent that it is found: “Emancipation works a severance of the filial
relation as completely as if the child were of age.” Iroquois Iron Co.
v. Industrial Comm’n, 294 Ill. 106, 109 (1920).
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“While it is often said emancipation cannot be accomplished by an
act of the child alone, this is not always true.” Niesen, 38 Wis. 2d at
602, 157 N.W.2d at 662. The elements of emancipation may vary with
the context of the particular case. In cases addressing the right of the
parent to the child’s income, courts generally hold that power to
emancipate lies with the custodial parent. See In re Marriage of
Robinson, 629 P.2d 1069, 1072 (Colo. 1981). However, in the
context of child support, it is generally recognized that a parent may
not end his or her support obligation by unilaterally and arbitrarily
emancipating a minor unable to support himself or herself. See, e.g.,
In re Marriage of Donahoe, 114 Ill. App. 3d 470, 476 (1983)
(holding that unilateral emancipation by parent “has no application to
a parent’s obligation to support a minor child” pursuant to the Act,
including section 510(d) provision for termination of child support
obligation by emancipation); 1 D. Kramer, Legal Rights of Children
§15:3, at 1084 (rev. 2d ed. 2005).
Self-Emancipation Under the Common Law
In the context of child support, it is widely recognized that minors
can emancipate themselves, i.e., place themselves beyond the care,
custody, and control of their parents. See Marriage of Robinson, 629
P.2d at 1072; 1 D. Kramer, Legal Rights of Children §15:1 et seq. (2d
rev. ed. 2005); A. Wright, Annotation, What Voluntary Acts of Child,
Other Than Marriage or Entry Into Military Service, Terminate
Parent’s Obligation to Support, 55 A.L.R. 5th 557, 574 (1998). In
Illinois, a minor may become emancipated based on statute3 or
common law. As one scholar explained:
“Common law emancipation generally happens through
acts of the parties without any contemporaneous judicial
declarations. However, it may later be recognized by the
courts when the outcome of a particular legal issue, such as
the obligation of the parent to pay for the youth’s medical care
3
The Emancipation of Minors Act provides a statutory emancipation
procedure (750 ILCS 30/1 et seq. (West 2008)) that “does not limit or
exclude any other means either in statute or case law by which a minor may
become emancipated.” 750 ILCS 30/2 (West 2008).
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or education, depends on whether or not the young person is
emancipated.” 1 D. Kramer, Legal Rights of Children §15:1,
at 1081-82 (rev. 2d ed. 2005).
In other words: “Emancipation as a legal term is useful, but only as a
means of describing a result already reached, not as an analytical
tool.” 1 H. Clark, Domestic Relations §9.3, at 550 (2d ed. 1987).
The standard treatise on family law posits: “A particular disability
[of minority] should no longer exist whenever the child’s
circumstances have so changed that the reason for creating the
disability no longer exists. This requires separate treatment for each
sort of disability.” 1 H. Clark, Domestic Relations §9.3, at 550 (2d ed.
1987). In the context of child support, Professor Clark explains that
the law confers upon children the right to be supported by their
parents because children are unable to support themselves, and
because human progress requires that there be a relatively long period
of education and training for the young. If a child’s situation is such
that the child no longer needs to be supported, then the child’s right
to that support should no longer exist. Generally, courts find that this
right ends at majority, but it could end earlier. 1 H. Clark, Domestic
Relations §9.3, at 552-53 (2d ed. 1987).
General Principles
At common law, there are several situations in which a minor may
be found to be self-emancipated. “Under those circumstances, the
parent or parents are relieved of their duty to support their child
because the child has entered into a new relationship, status, or
position, which is inconsistent with control and support of the child by
the parent.” French v. French, 599 S.W.2d 40, 41 (Mo. App. 1980);
accord Green, 447 N.E.2d at 609 (same).
It is widely recognized that the emancipation of a minor cannot be
presumed. Brokaw v. Brokaw, 398 N.E.2d 1385, 1388 (Ind. App.
1980); French, 599 S.W.2d at 41; Vaupel v. Bellach, 261 Iowa 376,
380, 154 N.W.2d 149, 151 (1967). Whether a minor is emancipated,
i.e., has moved beyond the care, custody, and control of a parent,
depends upon the relevant facts and circumstances of each particular
case. See Marriage of Robinson, 629 P.2d at 1072-73; Vaupel, 261
Iowa at 380, 154 N.W.2d at 151. We emphasize that “the rules of law
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governing emancipation do not point to specific facts or a bright-line
standard. Rather, the unique facts and circumstances of each case
must be evaluated.” Powell v. Powell, 111 Ohio App. 3d 418, 425,
676 N.E.2d 556, 560 (1996); see, e.g., Wulff, 243 Neb. at 622-23,
500 N.W.2d at 850-51 (giving birth by itself not dispositive of
emancipation); Marriage of Donahoe, 114 Ill. App. 3d at 476
(dropping out of high school against parent’s wishes not dispositive).
Such evidence may be circumstantial. Palagi v. Palagi, 10 Neb. Ct. App.
231, 240, 627 N.W.2d 765, 772-73 (2001); Brokaw, 398 N.E.2d at
1388.
Further, emancipation is not necessarily a continuing status. A
minor may become unemancipated if there has been a sufficient
change in circumstances. See Wulff, 243 Neb. at 621, 500 N.W.2d at
850; Vaupel, 261 Iowa at 380, 154 N.W.2d at 151. The burden of
proving emancipation is on the party asserting it. See Marriage of
Robinson, 629 P.2d at 1072; accord Powell, 111 Ohio App. 3d at
425, 676 N.E.2d at 560 (“The party seeking relief from a support
order bears the burden of proving that the child is emancipated”);
French, 599 S.W.2d at 41 (same).
Specific Examples
Case law demonstrates that specific events, such as marriage,
entering the military, or leaving the parental home, do not constitute
bright-line standards in determining self-emancipation. For example,
the general rule is that emancipation may result from the marriage of
a minor because marriage creates a relationship inconsistent with the
minor’s subjection to the control and care of the parent (1 D. Kramer,
Legal Rights of Children §15:4, at 1085-86 (rev. 2d ed. 2005); 67A
C.J.S. Parent & Child §26 (2002)), thereby terminating the parents’
support obligation. 59 Am. Jur. 2d Parent & Child §82 (2002). The
reason is that the minor no longer needs parental support, having a
right to support from the minor’s spouse. 1 H. Clark, Domestic
Relations §9.3, at 553. However, “the child, if still under the age of
majority, may once again, if the marriage ends in divorce or
separation, become dependent on his or her parents and may thus
become ‘unemancipated’ again.” 1 D. Kramer, Legal Rights of
Children §15:1, at 1080 (rev. 2d ed. 2005). Further, the unique facts
in some particular cases established that those minors were not
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emancipated despite their status or position of being married. See,
e.g., Marriage of Walters, 238 Ill. App. 3d at 1093; Berks County
Children & Youth Services v. Rowan, 428 Pa. Super. 448, 456-58,
631 A.2d 615, 619-20 (1993).
We observe that in In re Marriage of Daniels, 296 Ill. App. 3d
446 (1998), a panel of our appellate court erroneously relied on
Walters in concluding that marriage, by itself, emancipated a nonminor
child. Marriage of Daniels, 296 Ill. App. 3d at 449-50. Further, the
circuit court in the present case relied on Daniels in finding that Max
was emancipated solely by virtue of his incarceration. However, the
court in Walters actually and correctly explained that the father’s
obligation “to pay for college expenses of his daughters terminated if
they became emancipated through marriage.” (Emphasis added.)
Marriage of Walters, 238 Ill. App. 3d at 1092. Regarding the father’s
education expense obligation for one of his daughters, the Walters
court did not simply ask whether the minor was married, but rather
asked whether the marriage had in fact emancipated her. The Walters
court actually evaluated the relevant evidence, which established that
during the minor’s marriage, she never lived with her husband, but
continued to reside with and receive support from the custodial
parent. The circuit court in Walters declared the marriage invalid. The
appellate court found that the minor’s marriage was not an
emancipating event that terminated the father’s obligation to provide
for her education and maintenance. Marriage of Walters, 238 Ill. App.
3d at 1093. Daniels misapprehended and misapplied the holding in
Marriage of Walters. Accordingly, In re Marriage of Daniels, 296 Ill.
App. 3d 446 (1998), is hereby overruled.
Likewise, entering the armed forces, by itself, is not necessarily a
categorical emancipating event. Generally, enlistment in the military
is a contract between the soldier and the government that effects a
change in the minor’s status, which the minor cannot throw off at will.
Enlistment is deemed an emancipating event because when the minor
enlists, the minor is removed from under the parental roof and placed
under the control of the government. Consequently, the minor is
emancipated “so long as this service continues.” Iroquois Iron, 294 Ill.
at 109; accord Corbridge v. Corbridge, 230 Ind. 201, 208-09, 102
N.E.2d 764, 767-68 (1952). Accordingly, if the young person is
discharged without having attained majority and returns to the
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parental home, he or she may revert to being “unemancipated.”
Peters, 314 Ill. at 563. “Nevertheless, the question of when a child is
emancipated by military service so as to relieve the parent from
obligations of support depends upon the facts of each case.”
Omohundro v. Omohundro, 8 Ohio App. 3d 318, 320, 457 N.E.2d
324, 326 (1982). For example, a minor’s enlistment in the Army
Reserve was found not to be an emancipating event where, after a
period of living on base, the minor continuously resided with the
custodial parent and depended on her for shelter, food, clothing, and
transportation to Army Reserve meetings. Omohundro, 8 Ohio App.
3d at 320-21, 457 N.E.2d at 326-27. Similarly, a minor’s enlistment
in the National Guard was found not to be an emancipating event
because, with the exception of his summer training and monthly
weekend drills, the minor’s custodial parent was still responsible for
the minor’s support and education. Lawson v. Lawson, 695 N.E.2d
154, 156 (Ind. App. 1998).
Regarding leaving the parental home, this court has held that
where a minor supports herself, controls her own income, and is
without the control of her parents, she is emancipated and the parental
obligation to support her ceases. Panther Creek Mines v. Industrial
Comm’n, 296 Ill. 565, 567 (1921). Courts have found emancipation
where the evidence established that minors, who are physically and
mentally able to take care of themselves, voluntarily leave their
parental homes and assume responsibility for their own care. See, e.g.,
Meyer v. Meyer, 222 Ill. App. 3d 357, 360-61 (1991); In re Parisi,
140 A.D.2d 443, 528 N.Y.S.2d 145 (1988). However, courts have
found that minors who moved out of their parental homes were not
emancipated where, despite their desire to be independent, they
continued to receive significant support from their parents. See, e.g.,
In re Cellamare, 36 A.D.3d 906, 829 N.Y.S.2d 588 (2007); Phifer v.
Phifer, 845 P.2d 384, 386 (Wyo. 1993); Marriage of Robinson, 629
P.2d at 1073.
Even the minor’s commission of a crime, by itself, is not
dispositive of emancipation:
“Commission of a felony, although arguably a lifestyle choice,
is not one the state wishes to encourage. If a custodial parent
is willing to help a child with behavioral problems, chemical
dependency problems, and criminal convictions, the courts
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should not hinder the providing of such help by eliminating
financial assistance by the non-custodial parent.” Sutton v.
Schwartz, 860 S.W.2d 833, 835 (Mo. App. 1993).
Accord Trosky v. Mann, 398 Pa. Super. 369, 581 A.2d 177 (1990)
(finding minor not to be emancipated despite pattern of destructive
and criminal behavior including substance abuse).
Several sister jurisdictions have mentioned incarceration as a
possible emancipating circumstance along with marriage or entering
military service. “Because emancipation is the relinquishment of
parental control a life style change must be viewed from the
standpoint of whether it has effectively, by its very nature, terminated
parental control. Lengthy incarceration could meet that test.”
(Emphasis added.) Sutton, 860 S.W.2d at 835; accord Garver v.
Garver, 981 P.2d 471, 474 (Wyo. 1999) (observing that “lengthy
incarceration may create an emancipation”); see In re Marriage of
Gimlett, 95 Wash. 2d 699, 702, 629 P.2d 450, 452 (1981) (dicta;
including incarceration in list of emancipating circumstances). We
agree, and hold that lengthy incarceration is simply one of many
situations in which a minor may be found to be emancipated.
However, not one of those jurisdictions found that the minor was
actually emancipated solely by virtue of the incarceration itself.
Rather, after considering the particular circumstances in each case,
those courts concluded that the particular minors were not
emancipated. See, e.g., Edmonds v. Edmonds, 935 So. 2d 980, 982-
86 (Miss. 2006); Garver, 981 P.2d at 474; Sutton, 860 S.W.2d at 835.
Further, while incarceration, by itself, may not abrogate the parental
duty of child support, incarceration certainly is such a change of
circumstance that warrants modification of the amount of child
support. See Garver, 981 P.2d at 472; In re Marriage of Van Winkle,
107 Ill. App. 3d 73, 75-76 (1982) (superceded on other grounds by
statute, as stated in In re Marriage of Hawking, 240 Ill. App. 3d 419,
425 (1992)) (concluding that minor was not emancipated by virtue of
incarceration alone, but holding that trial court erred in failing to
consider parent’s support modification request based on minor’s
incarceration); Edmonds, 935 So. 2d at 986-98 (same).
This survey indicates that, in the context of child support, self-
emancipation does not ultimately depend on the status of the minor,
e.g., whether the minor is married, a member of the armed forces, or
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even whether the minor is a felon or incarcerated. Rather, in
determining whether a minor is self-emancipated, a court must
determine whether the minor has actually moved beyond the care,
custody, and control of a parent such that the minor no longer needs
to be supported. The answer to this question depends on the relevant
facts and circumstances of each particular case. Thus, courts should
consider factors including, but not limited to, whether the minor has
voluntarily left the protection and influence of the parental home, or
whether the minor has otherwise moved beyond the care and control
of the custodial parent; whether the minor has assumed responsibility
for his or her own care, or whether the minor continues to need
support; whether the minor, if self-emancipated, has become
dependent on his or her parents again, thereby reverting to being
unemancipated. The inquiry is whether the minor has become self-
emancipated by any means other than reaching majority age. “This
analysis has the advantage of focusing the courts’ attention on
relevant circumstances and of avoiding broad generalizations which
later have either to be ignored or distinguished away by disingenuous
reasoning.” 1 H. Clark, Domestic Relations §9.3, at 550 (2d ed.
1987).
It is traditionally stated that what constitutes an emancipation is a
question of law, but whether an emancipation has occurred is an issue
of fact. Iroquois Iron, 294 Ill. at 109; see Stitle v. Stitle, 245 Ind. 168,
182, 197 N.E.2d 174, 182 (1964); 1 D. Kramer, Legal Rights of
Children §15:1, at 1075-76 (rev. 2d ed. 2005). We do not read this
principle as prescribing two distinct standards of review. Rather, in
reviewing a circuit court’s ruling on a minor’s self-emancipation, we
discern that mixed questions of law and fact are presented. Findings
of historical fact made by the circuit court will be upheld on review
unless such findings are against the manifest weight of the evidence.
This deferential standard of review is grounded in the reality that the
circuit court is in a superior position to observe the demeanor of the
witnesses, determine and weigh their credibility, and resolve conflicts
in their testimony. However, a reviewing court remains free to
undertake its own assessment of the facts in relation to the issues
presented and may draw its own conclusions when deciding what
relief should be granted. Accordingly, we review de novo the ultimate
question of whether Max is self-emancipated.
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Application to Facts
The circuit court’s April 25, 2008, hearing clearly did not conform
to these requirements. It must be remembered that Craig sought to
relieve his and Susan’s postsecondary education expense obligation
based on Max’s changed circumstances. Instead, the circuit court sua
sponte declared that Craig’s support obligation was terminated
because Max was self-emancipated by virtue of his incarceration.
In her motion for reconsideration, Susan directed the court to the
correct inquiry. She noted that the circuit court did not receive any
evidence on Craig’s motion, and did not even determine whether
Craig’s allegations constituted a change of circumstances. Susan
argued that the circuit court should have determined “whether Max’s
incarceration showed his intent to abandon his mother’s home and
earn his own support.” Susan alleged: “Max is not supporting himself,
he is an inmate at a state correctional facility. The conduct he pled
guilty to could not have led to him becoming financially independent,
nor will his incarceration.” Craig filed a response, to which he
attached portions of Max’s criminal record, documenting his arrests,
convictions, and sentence. Craig argued that Max’s criminal activity
demonstrated “a voluntary abandonment of the ‘parental roof’ and all
of its protection.” Further, Craig alleged that Max was “no longer
supported by either parent” and was employed as a butcher in prison.
At the close of a hearing, which was not transcribed, the circuit court
denied Susan’s motion for reconsideration.
Although Susan’s motion for reconsideration directed the circuit
court to the correct inquiry, Craig failed to meet his burden of proof.
Max’s emancipation cannot be presumed. Although Craig’s
attachment documented Max’s arrests, convictions, and sentence,
Max’s criminal activity, by itself, is not dispositive as to whether Max
is emancipated. Craig alleged that neither he nor Susan was
supporting Max. However, the current record contains no evidence
pertaining to Susan’s and Craig’s care, custody, control, and support
of Max, and whether Max voluntarily abandoned that support. Of
course, the relevant facts and circumstances include the effect of
Max’s incarceration on the above-stated factors. We reverse the order
of the circuit court.
We observe that Craig, in his motion to amend the dissolution
judgment, actually asked the circuit court to relieve “both parties” of
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their education expense obligation because Max’s incarceration
constituted a change of circumstances. However, finding Max to be
emancipated by virtue of his incarceration, the circuit court declared
that only Craig’s education expense obligation was abated. On
remand, the court should consider the extent to which Max’s
incarceration constitutes changed circumstances, warranting a
modification of the dissolution judgment for both parties.
We earlier recognized that lengthy incarceration is one of many
situations in which a minor may be found to be emancipated, based on
the circumstances of the particular case. Further, the appellate court
correctly recognized that the circuit court failed to complete the
required analysis: “In this case, the trial court terminated Craig’s
obligation to contribute to Max’s educational expenses solely on the
fact of Max’s incarceration without considering whether Max’s
incarceration had the effect of emancipating him.” 393 Ill. App. 3d at
299. Likewise, the appellate court dissent concluded that “Max
abandoned any pursuit of a higher education” based solely on his
felony convictions, although the circuit court did not receive any
evidence concerning Max’s “desire and ability to further his
education.” 393 Ill. App. 3d at 301 (Wolfson, J., dissenting).4
However, these are the exact questions for the circuit court as the
finder of fact. Accordingly, we affirm the judgment of the appellate
court, which reversed the order of the circuit court, and we remand
the cause to the circuit court for proceedings consistent with this
opinion.
4
The dissent posited: “An adult’s abandonment of education can be an
emancipating event. See In re Marriage of Alltop, 203 Ill. App. 3d 606, 618
(1990).” 393 Ill. App. 3d at 301 (Wolfson, J., dissenting). However, in
Alltop, the father argued modification of his education expense obligation
based on changed circumstances–he did not argue that his support obligation
terminated based on his son’s emancipation. Unlike the present case, the
circuit court in Alltop correctly heard evidence and denied modification
based on changed circumstances–not emancipation. Alltop, 203 Ill. App. 3d
at 617-18. Further, Max’s emancipation cannot be presumed.
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CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
affirmed and the cause is remanded to the circuit court.
Appellate court judgment affirmed;
cause remanded.
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