In re Marriage of Petersen

ILLINOIS OFFICIAL REPORTS
Supreme Court
In re Marriage of Petersen, 2011 IL 110984
Caption in Supreme In re MARRIAGE OF JANET KELLOGG PETERSEN, Appellant, and
Court: KEVIN PETERSEN, Appellee.
Docket No. 110984
Filed September 22, 2011
Held An ex-wife’s petition for her children’s college expenses pursuant to the
(Note: This syllabus divorce decree’s reservation clause sought a modification which was
constitutes no part of subject to the statutory ban on retroactive support insofar as it requested
the opinion of the court prepetition expenses, but they could be looked to in determining whether
but has been prepared she had depleted her financial resources for purposes of recalculating
by the Reporter of what percentage share the ex-husband should pay and what his obligation
Decisions for the should be for postpetition educational expenses.
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. Mark J.
Lopez, Judge, presiding.
Judgment Appellate court judgment affirmed in part and reversed in part;
circuit court judgment reversed;
cause remanded with directions.
Counsel on Annette M. Fernholz, of Chicago, for appellant.
Appeal
Philip J. Nathanson, of Chicago, and Lawrence S. Starkopf, of Starkopf
& Silverman, of Highland Park, for appellee.
Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
Justice Theis took no part in the decision.
OPINION
¶1 Leave to appeal was granted in this case to determine the appropriate means by which to
apportion postdissolution decree college expenses where the judgment of dissolution
reserved the issue for future consideration.
¶2 Background
¶3 Janet and Kevin Petersen married on September 1, 1983. They had three sons, Gregory
(born August 12, 1984), Ian (born October 21, 1985), and Ellis (born April 19, 1989). In June
1996, Janet and Kevin separated. The circuit court of Cook County entered a judgment of
dissolution of marriage on August 27, 1999.
¶4 The judgment decree awarded Janet sole custody of the three children. Sections 3, 4, and
5 of the judgment addressed the issue of the children’s support. Section 3 ordered Kevin to
pay Janet monthly child support. Section 4 ordered Kevin to maintain the children on a major
medical health insurance plan, with the couple to contribute equally to any medical costs not
covered by insurance. Section 5 ordered Kevin to continue his life insurance coverage for as
long as he remained obligated to support Janet or the children. With respect to Kevin’s
obligation to the children, Kevin was to name the children the irrevocable beneficiaries of
the policy “until Kevin’s obligation to support them (including any obligations for colleges
expenses) is terminated.” Section 6 of the decree included the following language:
“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 Marriage Dissolution Act.”
The decree further noted that Janet and Kevin “agreed to and adopted” a “Custody and
Visitation Agreement” which was incorporated into the final decree. That agreement stated:
“Janet shall consult Kevin on all issues relating to the children’s education. Kevin
shall be granted at least 48 hours notice to consult with Janet prior to any decision
being made concerning any said educational issue. Janet shall have the final decision
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and authority to make all educational decisions.”
The decree further stated that the court expressly retained jurisdiction of the cause for the
purpose of enforcing all the terms of the judgment.
¶5 On May 17, 2007, Janet filed a petition to allocate the college expenses of the children.
In the petition, she asked for contributions from Kevin for the tuition and expenses incurred
by their son Gregory, who attended Cornell University beginning in 2002, and who had
graduated in 2006. She also asked for reimbursement of the tuition and expenses of their son
Ian, who had started his college studies at Wake Forest University in 2004. In 2005, Ian
transferred to the University of Texas, where he was pursuing an engineering degree at the
time of the petition’s filing. Janet also sought a ruling on the future college tuition and
expenses of their son Ellis, who was to graduate from high school in May 2007 and had been
admitted to California Polytechnic State University for the semester beginning in the fall of
2007.
¶6 After a hearing, the circuit court ordered Kevin to pay 75% of the total college expenses
for all three children. Ultimately, the court determined the amount Kevin owed was
$227,260.68 for past college expenses, and $46,290.91 for Ian’s and Ellis’s expenses for the
2008-09 school year. Kevin appealed.
¶7 The appellate court affirmed in part and reversed in part. 403 Ill. App. 3d 839. The
appellate court held that Janet’s 2007 petition constituted a modification to the parties’ 1999
divorce decree. Applying section 510 of the Illinois Marriage and Dissolution of Marriage
Act, the court held that the circuit court could not order Kevin to pay for those college
expenses that predated the filing of Janet’s petition. The appellate court further held that the
circuit court did not err when it determined that Kevin should pay 75% of his children’s
college expenses. This appeal followed upon our allowance of Janet’s petition for leave to
appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010).
¶8 Analysis
¶9 Janet maintains that the appellate court erred in precluding her from obtaining
contributions from Kevin for expenses that predate the filing of her petition. She argues that
the appellate court improperly applied section 510 of the Illinois Marriage and Dissolution
of Marriage Act (the Act) to her. The issue presents a question of law concerning the
interpretation of a statute. Our review is therefore de novo. In re Andrew B., 237 Ill. 2d 340,
348 (2010).
¶ 10 The Act contains various provisions which govern the numerous issues that arise during
divorce proceedings, such as the distribution of marital property (750 ILCS 5/503 (West
2006)), spousal maintenance (750 ILCS 5/504 (West 2006)), and child custody (750 ILCS
5/601 (West 2006)) and support (750 ILCS 5/505, 513 (West 2006)). The Act envisions that
the parties may amicably agree on many of these issues and allows for agreements to be
incorporated into the judgment of dissolution entered by the court. 750 ILCS 5/502 (West
2006). The Act also recognizes that because circumstances do not always remain the same
as they were on the date a judgment of dissolution is entered, modifications may be
necessary. 750 ILCS 5/510 (West 2006). Section 510 provides the statutory framework for
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modifications, depending on the issue for which the modification is sought. 750 ILCS 5/510
(West 2006). Section 510 also states that modifications are not retroactive. Specifically, the
statute provides:
“Except as otherwise provided ***, the provisions of any judgment respecting
maintenance or support may be modified only as to installments accruing subsequent
to due notice by the moving party of the filing of the motion for modification ***.”
750 ILCS 5/510(a) (West 2006).
The appellate court relied on this language in determining that Kevin’s obligation for college
support could not begin prior to May 17, 2007, the date on which Janet filed her petition.
¶ 11 Janet asserts two different bases as to why section 510 of the Act is inapplicable. She first
contends that section 510 only pertains to child support payments authorized by section 505
of the Act and not to education payments, such as those at issue here, ordered pursuant to
section 513. We disagree.
¶ 12 At one point in Illinois law, divorced parents were obligated only for the “support” of
their minor children. “Support” in this statutory context included the duty to provide for the
reasonable and necessary physical, mental, and emotional needs of the child until the age of
majority. See 750 ILCS 5/505 (West 2006). However, a divorced parent’s obligation to his
or her children increased in 1982, when the General Assembly amended the Act so that the
circuit court, as equity may require, “may” order “either or both parties” to a divorce to
provide for the educational expenses of nonminor children. 750 ILCS 5/513(a) (West 2006);
Ill. Ann. Stat., ch. 40, ¶ 513, Supplement to Historical and Practice Notes, at 278 (Smith-
Hurd Supp. 1992). Indeed, section 513 itself speaks in terms of “support” for the parties’
children who “have attained majority.” 750 ILCS 5/513(a) (West 2006).
¶ 13 Given the statute’s express language and its history, it is not surprising that Illinois courts
have consistently held that section 513 expenses are a form of child support to be read in
conjunction with section 505. See In re Marriage of Sreenan, 81 Ill. App. 3d 1025 (1980);
In re Marriage of Coram, 86 Ill. App. 3d 845 (1980); In re Marriage of Waller, 339 Ill. App.
3d 743 (2003). See also In re Marriage of Truhlar, 404 Ill. App. 3d 176 (2010). “Support”
as that term is used in section 510(a) means amounts required to be paid under a judgment,
decree, or order issued by a court of competent jurisdiction, for the support and maintenance
of a child, including a child who as attained the age of majority under section 513. In fact,
section 510 specifically includes language which references both section 505 and section
513. We therefore find no merit in Janet’s argument that college expenses do not constitute
“child support” and that, as a consequence, section 510 is inapplicable.
¶ 14 The real dispute amongst the parties, however, is not whether section 513 expenses are
a form of child support, but rather whether the circuit court “modified” the dissolution decree
as that term is used in section 510, where the original decree reserved the issue of educational
expenses. Janet maintains that because the 1999 decree did not set out an actual monetary
award concerning educational expenses, her petition did not seek to “modify” the 1999
decree, as that term is used in section 510. Kevin contends that because the judgment did not
obligate him to provide educational expenses, Janet’s petition sought to “modify” the 1999
decree so as to come within the purview of section 510.
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¶ 15 The primary objective in construing a statute is to give effect to the legislature’s intent,
presuming the legislature did not intend to create absurd, inconvenient, or unjust results (In
re Madison H., 215 Ill. 2d 364, 372 (2005)). Accordingly, courts should consider the statute
in its entirety, keeping in mind the subject it addresses and the legislature’s apparent
objective in enacting it (People v. Davis, 199 Ill. 2d 130, 135 (2002)). The best indication
of legislative intent is the statutory language, given its plain and ordinary meaning (People
v. Jones, 223 Ill. 2d 569, 581 (2006)). When the statutory language is clear and unambiguous,
it must be given effect without resort to other tools of interpretation (Jones, 223 Ill. 2d at
581).
¶ 16 The plain and ordinary meaning of the verb “modify” is to “make a basic or important
change in : ALTER.” Webster’s Third New International Dictionary 1452 (1993). Black’s
Law Dictionary also states the word conveys the notion of “change” or “alteration” of a term.
Black’s Law Dictionary 1095 (9th ed. 2009). Given these commonly understood usages of
the word “modify,” we hold that the legislature intended the verb “modify” as it is used in
section 510 to connote any action taken to adjust, change or alter the obligations of one or
more of the parties subsequent to entry of the final divorce decree.
¶ 17 In our view, the parties’ original 1999 divorce decree did nothing more than maintain the
status quo between the parties with respect to the issue of college expenses by not making
an award at that time, even though the circuit court was authorized by statute to do so. This
is not unusual in divorce cases. Children are often too young, at the time of a divorce, to
properly anticipate whether college expenses will be needed. See In re Marriage of Albiani,
159 Ill. App. 3d 519 (1987) (acknowledging that college expenses may properly be reserved
in case of 14-year-old).
¶ 18 Prior to the filing of Janet’s petition, Kevin had no concrete obligation to provide for
educational expenses under the decree. Janet, however, in 2007 sought to change the status
quo between the parties and alter Kevin’s obligations under the decree. That action brought
her within the purview of section 510, which requires only a showing of a “substantial
change in circumstances.” 750 ILCS 5/510(a) (West 2006). The Act provides that provisions
of any judgment respecting maintenance or support may be modified “only as to installments
accruing subsequent to due notice” by the party seeking the change. Id. Under the plain
language of the statute, a retroactive modification is limited to only those installments that
date back to the filing date of the petition for modification. This insures that the respondent
is put on notice prior to any change being made with respect to the original child support and
expense obligations. In re Marriage of Henry, 156 Ill. 2d 541, 544 (1993). In light of the
statutory language, the appellate court therefore correctly held that support could not be
ordered for expenses which predated the filing of Janet’s petition.
¶ 19 In addition to the plain language of the statute, other reasons support today’s conclusion.
As noted earlier, the Act contemplates that the status quo will change from time to time after
a divorce decree has been finalized, especially where children are concerned. This court has
recognized that a court which has issued a final divorce decree retains jurisdiction of the
proceeding at all times to enforce, adjust, or modify the original decree in regard to the
custody and care of children, as the changing circumstances may warrant. Sommer v.
Borovic, 69 Ill. 2d 220 (1977) (and cases cited therein). Since section 510 codifies this long
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held notion and provides the statutory framework within which to do so, we believe it
appropriate to employ it in these circumstances.
¶ 20 Moreover, although this court has never addressed the “reservation as modification”
issue, our appellate court has, and it has consistently held such postdecree actions as
constituting modifications under section 510. See, e.g., In re Marriage of Kraft, 217 Ill. App.
3d 502 (1991). One of the first cases to address the issue, Nerini v. Nerini, 140 Ill. App. 3d
848 (1986), contains a thorough treatment of the issue, although the case concerned the
reservation of child support for minor children. The court first noted that section 505 (like
section 513) allows a court the discretion to enter a college support award against either or
both parties. However, by “reserving” the issue, the court was exercising its discretion to not
make an award at that time, even though the court had personal jurisdiction over both parents
and had the authority to make an award. Nerini, 140 Ill. App. 3d at 854. The court thus
distinguished between in rem and in personam divorce decrees. Under Illinois law, unless
and until there is valid in personam jurisdiction over the support obligor, no child support
order can be entered. See Gleiser v. Gleiser, 402 Ill. 343 (1949) (holding that a decree of
divorce requiring the payment of alimony and child support is a decree in personam, and
therefore the court did not have jurisdiction over the defendant to order him to pay support
and alimony when he was served with summons outside of Illinois). In Nerini, the court had
jurisdiction over the parents, but chose not to make an award that it was otherwise authorized
to make. Where personal jurisdiction is lacking, the reservation is necessary as a matter of
law. When personal jurisdiction over both parties exists, however, the reservation serves as
a discretionary decision to not make any award at that time. Id. For that reason, the procedure
contemplated in section 510, which prohibits retroactive support, had to be followed. Id.
¶ 21 Conner v. Watkins, 158 Ill. App. 3d 759 (1987), is also instructive. There, the circuit
court entered a divorce decree in 1972. The decree reserved the issues of child custody and
support until the final disposition of a pending juvenile court action concerning the children.
That proceeding ended in December 1973, with the juvenile court granting the children’s
guardian the authority to place them with their mother. In April 1986, the mother petitioned
the circuit court for an award of child support. She sought reimbursement from the father for
child support expenses dating back to December 1973. The trial court refused to order
support for any period predating the filing of the petition based upon section 510, which
prohibits retroactive support. The appellate court upheld the order, noting that the petition
served to modify the original decree because no award of support was made in the original
judgment. Conner, 158 Ill. App. 3d at 762.
¶ 22 These cases establish that Illinois decisional law has since 1986 consistently regarded the
actions taken pursuant to reservations clauses to be modifications under section 510 subject
to the prohibition of retroactive support. It is difficult for this court to gauge how many
couples might have constructed their dissolution decrees in reliance of this law, which to date
has not been changed by the legislature in any way.1 Given the construction of section 510
1
The only change the legislature has made to the Act is to amend section 505 in order to
address the in rem decrees noted in the discussion above.
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by our appellate court, it is reasonable to believe that parties to divorce actions presume that
issues that are reserved in the original dissolution decree will be adjudicated in the manner
set forth in section 510. Although Janet contends that other courts in other states do not
consider the resolution of reserved issues as a modification of the original decree, we do not
believe those cases are helpful in that they address different statutory provisions from those
contained in our Act. Principles of settled expectations weigh against overruling the appellate
court cases in the manner Janet suggests.
¶ 23 Finally, our legislature has stated that the Act is to be liberally construed so as to promote
its underlying purposes. One such purpose is to “mitigate the potential harm to the spouses
and their children caused by the process of legal dissolution of marriage.” 750 ILCS 5/102(4)
(West 2006). A second is to “secure the maximum involvement and cooperation of both
parents regarding the physical, mental, moral, and emotional well-being of the children
during and after the litigation. “ 750 ILCS 5/102(7) (West 2006). We believe the purposes
of these provisions are met where there is a prompt resolution of reserved issues of support
pursuant to section 510. To hold as Janet suggests would allow one spouse to wait
indefinitely until seeking to act pursuant to the reservation clause. We fail to see how
creating such an open-ended obligation on a spouse comports with the purposes of the Act.
Rather, we are of the view that the framework envisioned by section 510 provides the best
way to conduct postdecree proceedings which deal with issues reserved at the time the final
decree is entered.
¶ 24 Conclusion
¶ 25 When the circuit court ordered Kevin to pay 75% of all college education expenses, it did
so under the mistaken belief that its order would apply to such expenses that predated the
filing of Janet’s petition. We therefore believe it best to reverse both the circuit court’s
orders, that which referenced expenses that predated the date Janet filed her petition, and that
which referenced expenses incurred subsequent to the filing date. The reversal of these
circuit court orders in turn requires reversal of that portion of the appellate court judgment
finding that the circuit court did not abuse its discretion in setting Kevin’s share at 75%. As
noted throughout this opinion, a circuit court may order either or both parties to pay
educational expenses “as equity may require.” 750 ILCS 5/513(a) (West 2006). The factors
to be considered include, amongst other things, the financial resources of both parents. 750
ILCS 5/513(b)(1) (West 2006). We therefore remand this matter to the circuit court with
instructions to recalculate Kevin’s obligation for educational expenses, taking into account
“all relevant factors that appear reasonable and necessary” (750 ILCS 5/513(b) (West 2006))
including the fact that Janet’s financial resources may have been depleted by the cost of
Gregory’s four years of college expenses and Ian’s expenses from 2004 through May 2007.
¶ 26 Appellate court judgment affirmed in part and reversed in part;
¶ 27 circuit court judgment reversed;
¶ 28 cause remanded with directions.
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