In re Marriage of Graham

2021 IL App (3d) 200476Opinion filed December 10, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
In re MARRIAGE OF JANET C. ) Appeal from the Circuit Court
GRAHAM, n/k/a Janet C. Michalek, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Petitioner-Appellant, )
) Appeal No. 3-20-0476
and ) Circuit No. 08-D-1794
)
JAMES J. GRAHAM, ) Honorable
) David Garcia,
Respondent-Appellee. ) Judge, Presiding.
___________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Presiding Justice McDade and Justice Daugherity concurred in the judgment and
opinion.
____________________________________________________________________________
OPINION
¶1 Janet C. Graham, n/k/a Janet C. Michalek, the petitioner, filed a petition for contribution
and reimbursement against James J. Graham, the respondent, for college expenses she paid on
behalf of the parties’ youngest daughter, which she argued was James’s responsibility to pay.
James filed a motion to dismiss the petition, which the circuit court granted. Janet appeals.
¶2 I. BACKGROUND
¶3 The parties were married for nearly 24 years and had three children. In October 2008, Janet
filed a petition for dissolution of marriage. The children were 23, 20, and 18 years old. In July
2010, the court entered an agreed dissolution judgment. The parties obligated themselves to pay
for their children’s college expenses if a child showed a propensity for educability and higher
learning. If so, the parties were to each pay one-third of the child’s college expenses and the other
one-third would be contributed by the child. College expenses included tuition, books, room and
board, health insurance, car insurance, medical expenses, and prior student loans. The payment of
college expenses was limited to not more than a consecutive four year course of study in college
or a training, vocational, or technical school immediately following graduation from high school.
At the time the dissolution judgment was entered, the parties’ youngest daughter, Olivia Graham,
was 20 years old (born July 1990) and attending college.
¶4 In November 2012, after a series of filings by the parties, the court modified the dissolution
judgment and stated that James “agrees to be responsible for all the college debt for all three of the
parties’ children, present and past and future expenses.” The order was signed by both parties next
to the word “agreed.” The order provided no further changes to the dissolution judgment as it
related to college expenses but addressed other issues relating to maintenance.
¶5 In June 2020, Janet filed a petition for contribution and reimbursement of college expenses
and debts against James. She alleged that she incurred $1693 in debt for Olivia’s college expenses,
who was still working toward her four-year degree, and requested reimbursement. It was Janet’s
position that the 2012 modification made James liable for all college expenses (past, future, and
present) without limitation, such as the length of time allowed to pursue a four-year degree.
¶6 James filed a motion to dismiss Janet’s petition pursuant to section 2-619 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619 (West 2020)). First, he argued that the petition was not
commenced within the time limited by law. Specifically, the 2016 amendment to section 513(a) of
the Illinois Marriage and Dissolution of Marriage Act (Act) allowed parties to extend the time for
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a petition to be brought for post high school expenses past a child’s 23rd birthday. 750 ILCS
5/513(a) (West 2016); see Pub. Act 99-90 (eff. Jan. 1, 2016). However, that section also required
that the expenses be incurred no later than the child’s 23rd birthday, except for good cause shown,
but in no event later than the child’s 25th birthday. James stated that the petition for reimbursement
was filed shortly before Olivia’s 30th birthday for expenses that occurred after her 23rd birthday
and that no good cause was alleged to extend the expenses beyond her 23rd birthday.
¶7 Second, James argued that the payment of college expenses was limited to not more than
four years of study immediately following graduation of high school and that the expenses for
which reimbursement was sought were incurred long after the expiration of the four consecutive
years following Olivia’s high school graduation.
¶8 Third, James contended that Olivia did not demonstrate a propensity for educability and
higher learning. He noted that she attended college part-time on an off-and-on basis at four
colleges. James stated that Olivia now wished to transfer to another college but it would take at
least two more years for her to obtain a bachelor’s degree if she attended full-time and achieved
passing grades. He noted that she did not have a cumulative “C” average, failed numerous classes,
and was not admitted into a teaching program due to having a less than 2.0 GPA. Further, many
of her course credits would not transfer to subsequent schools due to her low grades.
¶9 James provided that he paid all college expenses incurred within four consecutive years of
her high school graduation date and his obligation to pay college expenses terminated. Although
he was not legally required to do so, he continued to pay Olivia’s college expenses until she
obtained her associate’s degree, long after her 23rd birthday. James also stated that Olivia attended
Rockford University part-time in the spring of 2020 and owed a balance of $1693. However, she
received a reimbursement from Rockford University in the amount of $2290 due to Covid-19 and
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used the refund for a down payment on a home. James attached his affidavit to his motion in
support of these facts. Janet responded to James’s motion and attached Olivia’s affidavit providing
that Olivia attended college after the 2012 modification and incurred $25,823 in loans to pay for
her college expenses.
¶ 10 In October 2020, the matter proceeded to hearing. The court clarified Janet’s position: “So
if I take your position, [Olivia] could be 100 and [James] could be 120 and *** he’d still have to
pay.” To which Janet’s counsel responded, “the man agreed to pay for the parties’ college debt,
past, present, and future expenses. And there’s *** no limit on that.” The court disagreed and
dismissed Janet’s petition with prejudice. The court found that the 2012 modification only changed
who paid for the college expenses. Janet appeals.
¶ 11 II. ANALYSIS
¶ 12 Janet argues that the court erred as a matter of law when it granted James’s motion to
dismiss because the 2012 modification required that James pay all college expenses for their
children without restriction. Specifically, she claims that the 2012 modification providing that
James be solely responsible for the children’s college expenses superseded all conditions in the
2010 dissolution judgment. James argues that the expenses for which Janet seeks reimbursement
were not incurred within the applicable time frame, he paid all expenses for which he was liable,
and the reimbursement sought failed to meet the condition precedent that the child demonstrate a
propensity for educability and higher learning that was set forth in the 2010 dissolution judgment.
¶ 13 We review a circuit court’s determination of a section 2-619 motion to dismiss de novo.
Leroy K.D. v. Nicole B., 2021 IL App (3d) 200010, ¶ 35. When de novo review applies, we perform
the same analysis that the circuit court would perform. Id. Likewise, whether the dissolution
judgment reflected the actual intent of the parties is a question of contract and also reviewed
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de novo. In re Marriage of Allen, 343 Ill. App. 3d 410, 413 (2003). “When the terms of the
agreement are unambiguous, the parties’ intent is determined solely from the plain and ordinary
meaning of those terms.” In re Marriage of Figliulo, 2015 IL App (1st) 140290, ¶ 13. If the
language is deemed ambiguous, the court may consider extrinsic evidence to determine the parties’
intent. Id.¶ 14 Parties to a contract may, by mutual assent, modify a contract, provided that such
modification does not violate law or public policy. Schwinder v. Austin Bank of Chicago, 348 Ill.
App. 3d 461, 468 (2004). “A modified contract containing a term inconsistent with a term of an
earlier contract between the same parties is interpreted as including an agreement to rescind the
inconsistent term in the earlier contract.” Id. at 469. Therefore, the modified contract is regarded
as creating a new single contract that consists of the terms of the prior contract that the parties have
not agreed to change and the new term(s) on which they have agreed to change. Id.
¶ 15 Here, the 2012 modification made James solely responsible for the children’s college
expenses and rescinded the prior inconsistent term that the college expenses were to be divided
into thirds. The order provided that the modification was retroactive and applied to all college
expenses that were incurred prior to the modification (where his original responsibility was only a
one-third share) and after (as Olivia was 22 years old and pursuing a four-year degree). The
language of the 2010 dissolution judgment and the 2012 modification order are clear and
unambiguous, and there is no evidence that the parties intended the modification to rescind terms
unrelated to who was paying for the college expenses. Therefore, we agree with James that the
college expenses at issue were not incurred within the applicable time frame.
¶ 16 Nonetheless, Janet argues that James’s conduct after the entry of the 2012 modification
implied that he intended to pay for college expenses for the children after the age of 25 (referring
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to the 2016 amendment to section 513(a) of the Act). Supra ¶ 6. She references James’s affidavit
where he admitted that he paid for Olivia’s college expenses long after she turned 23 years old.
Janet poses the question, “If James really believes his own argument, that he was not legally
obligated to pay college expenses for his children over the age of twenty-five, then why did he pay
these expenses for her when she was over twenty-five?” We decline to engage in such speculation.
Further, we note that Janet has failed to cite any authority suggesting that a parent’s voluntary
payment of a child’s college expenses imposes an indefinite obligation to continue. “Where an
appellant has failed to support his or her arguments with citations to authority, this court will not
research the issues on the appellant’s behalf.” Gakuba v. Kurtz, 2015 IL App (2d) 140252, ¶ 19.
Failure to cite relevant authority does not comply with Illinois Supreme Court Rule 341(h)(7) (eff.
Oct. 1, 2020) and results in forfeiture. Gakuba, 2015 IL App (2d) 140252, ¶ 19. Thus, Janet
forfeited this argument.
¶ 17 Moreover, even if the 2012 modification somehow rescinded the term related to the length
of time allowed to pursue a four-year degree, the evidence demonstrated that Olivia failed to show
a propensity for educability and higher learning. This condition precedent was set forth in the 2010
dissolution judgment, which was clearly not rescinded by the 2012 modification as already
explained. Regardless, Janet argues that “no evidentiary hearing was ever had to determine
Olivia’s educability or to determine whether any of the facts or allegations contained in James’s
affidavit were accurate or considered by the parties when they entered into their agreement on
November 26, 2012.”
¶ 18 It is important to understand the procedure at this stage. James moved for involuntary
dismissal pursuant to section 2-619 of the Code of Civil Procedure for, among other things, an
“affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)
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(West 2020). If the “affirmative matter” asserted is not apparent on the face of the complaint, the
motion must be supported by an affidavit. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156
Ill. 2d 112, 116 (1993). By presenting an adequate affidavit supporting the asserted defense, the
defendant satisfies his initial burden of going forward on the motion to dismiss, and the burden
shifts to the plaintiff who must establish that the defense is unfounded or requires the resolution
of a material fact before it is proven. Id. A counteraffidavit is necessary to refute evidentiary facts
properly asserted by affidavit supporting the motion; otherwise, the facts are deemed admitted. Id.¶ 19 Here, James asserted that the “affirmative matter” avoiding the legal effect or defeating the
claim was Olivia’s failure to meet the condition precedent for payment of her college expenses: a
propensity for educability and higher learning per the 2010 dissolution judgment. His affidavit
stated that Olivia attended college part-time on an off-and-on basis, it would take at least two more
years for her to obtain a bachelor’s degree if she attended full-time and achieved passing grades,
she did not maintain a cumulative “C” average, she was unable to progress into her desired
program due to her low grades, and she failed numerous classes. Though Olivia provided an
affidavit, it only included information regarding debt for her college expenses. She did not refute
the evidentiary facts asserted in James’s affidavit, which are deemed admitted. See id. As such, an
evidentiary hearing to determine the accuracy of the facts in James’s affidavit was unnecessary.
¶ 20 Accordingly, the court did not err as a matter of law when it granted James’s motion to
dismiss and dismissed Janet’s petition for contribution and reimbursement with prejudice.
¶ 21 III. CONCLUSION
¶ 22 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.
¶ 23 Affirmed.
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No. 3-20-0476
Cite as: In re Marriage of Graham, 2021 IL App (3d) 200476Decision Under Review: Appeal from the Circuit Court of Will County, No. 08-D-1794;
the Hon. David Garcia, Judge, presiding.
Attorneys Genevieve M. Binnie, of Anderson & Boback, LLC, of Chicago,
for for appellant.
Appellant:
Attorneys Lynn M. Hickey, of Hutchinson, Anders & Hickey, of Tinley
for Park, for appellee.
Appellee:
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