Petersen v. Petersen

FIFTH DIVISION
July 30, 2010
Nos. 1-08-2643 and 1-08-2644, Consolidated
KEVIN PETERSEN, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
v. )
)
JANET KELLOGG PETERSEN, ) Honorable
) Mark Lopez,
Respondent-Appellee. ) Judge Presiding.
JUSTICE HOWSE delivered the opinion of the court:
Respondent-appellee, Janet Petersen, filed a petition in the
circuit court of Cook County requesting an allocation of the
college expenses for the three children of the dissolved marriage
between Janet and her former husband, petitioner-appellant, Kevin
Petersen. Kevin appeals from an order requiring him to pay 75%
of all past, present and future college expenses of his three
children. Kevin contends the trial court erred when it ordered
him to pay 75% of his children’s college expenses and erred when
it ordered him to pay expenses that predate the filing of Janet’s
petition for allocation of expenses. For the reasons set forth
below, we affirm in part and reverse in part.
BACKGROUND
Kevin and Janet were married on September 1, 1983, in
Pacific Palisades, California. Three children were born of the
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marriage: Gregory, born August 12, 1984; Ian, born October 21,
1985; and Ellis, born April 19, 1989.
A judgment for dissolution of marriage was entered on August
27, 1999. At the time of the judgment both parties were 44 years
old. Janet, who has undergraduate degrees in psychology and
nursing, was employed part-time as a hospice nurse. Kevin, who
has a medical degree, was employed as a general surgeon.
The judgment for dissolution awarded Janet sole custody of
the children. Kevin was ordered to pay child support. With
respect to the college expenses of the children, the judgment
provided:
“The Court expressly reserves the issue
of each party’s obligation to contribute to
the college or other education expenses of
the parties’ children pursuant to Section 513
of the [Illinois Marriage and Dissolution of
Marriage Act].”
The children were not attending college at the time the
judgment of dissolution was entered. Shortly after the
dissolution, Kevin was adjudicated bankrupt.
On May 7, 2007, Janet filed a petition requesting an
allocation for college expenses for the children. The trial
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court conducted evidentiary hearings.
Janet testified that Gregory, the oldest child, started
college at Cornell University in 2002 and graduated in 2006. At
the time of the hearing, Ian was 21 years old and had attended
Wake Forest University for his first year of college in 2004-05
and then transferred to the University of Texas. The youngest
child, Ellis, was 18 years old and in his first year of college
at the California Polytechnic State University.
Janet testified that she had not spoken to Kevin since 2002.
Janet testified she sent a letter to Kevin in July 2002 listing
the expenses Gregory would incur by attending Cornell. She
testified that she never received a response from Kevin to her
letter.
Janet financed Gregory’s tuition and expenses with loans.
She paid off the loans for Gregory’s first year with money she
received under the judgment for dissolution. Janet also took out
loans for Ian’s and Ellis’s educations.
Kevin testified that he had not received notification from
Janet regarding the children’s college plans, including the 2002
letter.
Kevin testified that his income was $94,000 in 2002. The
parties stipulated that Kevin’s income reported on his IRS 1040
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form for 2003 was $180,687; in 2004 he earned $181,939; in 2005
he earned $220,314; and in 2006 he earned $294,563. Kevin owns
two companies – Summerlin Surgical Associates, which had average
monthly gross receipts of $63,600 from January 2007 through July
2007, and No Insurance Surgery MC, which had average monthly
gross receipts of $69,100 from February 2007 through July 2007.
Janet’s income for 2003 was $30,170; in 2004 she earned $34,955;
in 2005 she earned $35,106; and in 2006 she earned $40,268.
On April 4, 2008, the trial court ordered Kevin to pay 75%
of the total of all college expenses for the parties’ three
children, past, present and future. The trial court reserved the
amount due pending a review of Janet’s accounting. On June 17,
2008, the trial court issued an order determining the amount due
from Kevin was $227,260.68 for past college expenses. On July
15, 2008, Kevin appealed that order. On August 18, 2008, the
trial court entered an order requiring Kevin to pay his allocated
share of Ian’s and Ellis’s expenses for the 2008-09 school year
in the amount of $46,290.91. Kevin appealed that order on
September 15, 2008. Both of Kevin’s appeals were consolidated
into this joint appeal.
On appeal Kevin argues: (1) the trial court erred when it
ordered him to pay college expenses that accrued prior to the
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filing of Janet’s petition; (2) the trial court erred when it
ordered him to pay 75% of the college expenses; and (3) the trial
court lost jurisdiction to order payment of Gregory’s college
expenses since he had already received his baccalaureate degree
at the time Janet’s petition was filed.
ANALYSIS
I. Retroactive College Expenses
Kevin argues the trial court erred when it ordered him to
pay college expenses which were incurred prior to the filing of
Janet’s petition because the order is a modification of the child
support provisions of the 1999 dissolution judgment. Kevin
argues Janet’s petition should be treated as a modification of
the child support order because college education expenses are a
form of child support and Janet’s petition seeks to modify the
existing support order by requiring him to pay college expenses.
Kevin further argues that under the provisions of section 510 of
the Illinois Marriage and Dissolution of Marriage Act, any
modified payment can only be retroactive to the date on which the
notice of filing was issued on Janet’s petition to allocate
expenses. 750 ILCS 5/510, 513 (West 2008).
The trial court held that its April 4, 2008 order for
retroactive payments was not a modification of a prior child
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support order, holding:
“[T]here is no order currently in place
on college contributions which either party
seeks to modify, rather this petition is the
first opportunity the Court is presented to
address the parties’ [section] 513
contribution.”
The trial court ordered that Janet should receive credit for
section 513 expenses she had already made and be reimbursed by
Kevin.
The modification of provisions for maintenance, support,
educational expenses and property disposition are generally
governed by section 510 of the Act, which states in relevant
part:
“(a) *** [T]he provisions of any
judgment respecting maintenance or support
may be modified only as to installments
accruing subsequent to due notice by the
moving party of the filing of the motion for
modification.” 750 ILCS 5/510(a) (West
2008).
We review de novo the construction and application of the
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Illinois Marriage and Dissolution of Marriage Act (the Act) (750
ILCS 5/501 et seq. (West 2008)). Blum v. Koster, 235 Ill. 2d 21,
29, 919 N.E.2d 333 (2009). The primary rule of statutory
construction is to ascertain and give effect to the intent of the
legislature. In re Application of the County Treasurer & County
Collector, 389 Ill. App. 3d 398, 401, 905 N.E.2d 953 (2009). The
intent of the legislature is best evidenced by the language of
the statute. People v. Janas, 389 Ill. App. 3d 426, 428, 906
N.E.2d 686 (2009). When the statutory language is clear and
unambiguous, we must apply it as it is written, without resort to
extrinsic aids of statutory construction. Koster, 235 Ill. 2d at
29.
Petitions for educational expenses of nonminor children are
generally governed by section 513 which states in relevant part:
“(a) The court may award sums of money
out of the property and income of either or
both parties *** for the support of the child
or children of the parties who have attained
majority in the following instances:
(1) When the child is mentally or
physically disabled ***.
(2) The court may also make
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provision for the educational expenses
of the child or children of the parties,
whether of minor or majority age, and an
application for educational expenses may
be made before or after the child has
attained majority ***. *** The
educational expenses may include, but
shall not be limited to, room, board,
dues, tuition, transportation, books,
fees, registration and application
costs, medical expenses including
medical insurance, dental expenses, and
living expenses during the school year
and periods of recess, which sums may be
ordered payable to the child, to either
parent, or to the educational
institution, directly or through a
special account or trust created for
that purpose, as the court sees fit.
***
The authority under this Section to
make provision for educational expenses,
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except where the child is mentally or
physically disabled and not otherwise
emancipated, terminates when the child
receives a baccalaureate degree.” 750
ILCS 5/513 (West 2008).
The legislative intent of section 513 was to furnish a means
to provide for the education of nonminor children of divorced
parents. In re Marriage of Treacy, 204 Ill. App. 3d 282, 286,
562 N.E.2d 266 (1990). The imposition of a section 513 order for
educational expenses is within the sound discretion of the trial
court. Treacy, 204 Ill App. 3d at 286.
In general, courts have viewed section 513 educational
expenses as a type of child support:
" 'Support' is simply a general term that can
include 'educational expenses' for a child
who has turned 18 but is still in high
school. 'Educational expenses' may include
'room' and 'board,' just as the more generic
term, 'support,' may include shelter and
food. A court can award 'support' to
disabled unemancipated children, minor or
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nonminor (750 ILCS 5/513(a)(1) (West 2000)),
and a particular kind of support,
'educational expenses,' to 'nonminor
children' in school (750 ILCS 5/513(a)(2)
(West 2000)).' " In re Marriage of Waller,
339 Ill. App. 3d 743, 748, 791 N.E.2d 674(2003).
Section 513 itself states that payment of college expenses
is a form of child support for the nonminor children of a
marriage:
“(a) The court may award sums of money
out of the property and income of either or
both parties *** for the support of the child
or children of the parties who have attained
majority in the following instances:
(1) When the child is mentally or
physically disabled ***.
(2) The court may also make provision
for the educational expenses of the child or
children of the parties ***." (Emphasis
added) 750 ILCS 5/513(a) (West 2008).
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Furthermore, in In re Estate of Champagne, 153 Ill. App. 3d
560, 505 N.E.2d 1352 (1987), the court noted the interplay
between sections 513 and 510 when it held that section 513
educational expenses are intended to be included within section
510(c) the same as a support order and are not terminated by the
death of a parent obligated to pay for these expenses.
Champagne, 153 Ill. App. 3d at 563-64.
The issue in In re Marriage of Loffredi, 232 Ill. App. 3d
709, 597 N.E.2d 907 (1992), is whether a dissolution judgment
which provides for payment of children’s college expenses is
modifiable. Loffredi, 232 Ill. App. 3d at 711. The court looked
to section 502(f), which deals with modification of settlement
agreements, and found a provision for college expenses in a
settlement agreement is in the nature of child support pursuant
to section 502(f) and may be modified. Loffredi, 232 Ill. App.
3d at 711.
We also find instructive the holding in Conner v. Watkins,
158 Ill. App. 3d 759, 511 N.E.2d 200 (1987). In Conner, the
trial court stated at a hearing on October 30, 1972, prior to
issuing the divorce judgment, that it reserved the issue of child
support. Conner, 158 Ill. App. 3d at 759-60. The divorce
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judgment did not mention child support. Conner, 158 Ill. App. 3d
at 762. The court found that no award of support was made in the
original judgment and thus concluded:
“[A]ny subsequent award of support would
constitute a modification of the previous
judgment, thereby bringing the case within
the purview of section 510(a) of the Act
(Ill. Rev. Stat. 1985, ch. 40, par. 510(a)),
which prohibits the award of retroactive
support.” Conner, 158 Ill. App. 3d at 762.
The case at bar is similar to Conner in that the trial court
did not make an award of child support in the form of educational
expenses. Thus, Janet’s petition for educational expenses is a
modification of the support provisions of the judgment and
section 510 requires Kevin’s contribution to his children’s
educational expenses to begin on the notice date of Janet’s
petition.
Janet claims In re Marriage of Bennett, 306 Ill. App. 3d
246, 713 N.E.2d 1278 (1999), is illustrative of a situation where
the appellate court affirmed a trial court decision allowing
retroactive educational expense payments.
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In Bennett, the mother made the same argument as Kevin, in
the case at bar, that educational expenses are a section 510
modification and can only accrue from the date of the petition
for educational expenses. Bennett, 306 Ill. App. 3d at 247-48.
However, Bennett is distinguishable from the case at bar in that
the educational expenses there occurred while the parties were
still married. Bennett, 306 Ill. App. 3d at 248. The court
stated that under section 15 of the Rights of Married Persons Act
(750 ILCS 65/15(a)(1) (West 1996)), creditors could have pursued
the mother for all or any portion of the daughter’s educational
expenses before or after the petition for dissolution was filed
because the expenses occurred while the parties were still
married. Bennett, 306 Ill. App. 3d at 248. As a result, the
appellate court in Bennett found that the trial court did not err
in ordering the mother to reimburse the father for a portion of
past educational expenses. Bennett, 306 Ill. App. 3d at 247-48.
In this case, unlike Bennett, creditors could not have sued
Kevin for those expenses under the Rights of Married Persons Act.
Therefore, ordering Kevin to make payments that predate the
petition was improper.
In this case, we note, the judgement of dissolution of
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marriage did not determine whether the parents were required to
pay the college expenses of the children (a form of child
support), but reserved the issue to be decided in the future.
Janet’s petition for allocation of college expenses is in the
nature of a modification of child support under section 510.
Therefore, the trial court erred when it ordered payment of
college expenses that predate the notice of filing as provided in
section 510(a). 750 ILCS 5/510(a) (West 2008).
II. Allocation of Educational Expenses
The amount and percentage of allocation of educational
expenses will not be overturned absent a finding that the trial
court abused its discretion. Street v. Street, 325 Ill. App. 3d
108, 115, 756 N.E.2d 887 (2001). A clear abuse of discretion
occurs when the trial court’s ruling is arbitrary, fanciful,
unreasonable, or where no reasonable person would take the view
adopted by the trial court. Koster, 235 Ill. 2d at 36.
Section 513(b) instructs:
“(b) In making awards under paragraph
(1) or (2) of subsection (a), or pursuant to
a petition or motion to decrease, modify, or
terminate any such award, the court shall
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consider all relevant factors that appear
reasonable and necessary, including:
(1) The financial resources of both
parents.
(2) The standard of living the
child would have enjoyed had the
marriage not been dissolved.
(3) The financial resources of the
child.
(4) The child’s academic
performance.” 750 ILCS 5/13(b) (West
2008).
In its analysis of the financial resources of the parents,
the trial court weighed several years of Janet’s income listed on
her W2 form, including $40,000 for 2006. The trial court
considered Kevin’s IRS 1040 tax return form for several years
including 2006, which listed his total income at $294,563.
The trial court also noted that Kevin owned two companies,
one, Summerlin Surgical Associates, had an average monthly gross
receipts of $63,600 from January 2007 through July 2007, while
the other, No Insurance Surgery MC, averaged monthly gross
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receipts of $69,100 from February 2007 through July 2007. Kevin
is the sole shareholder of those corporations.
Kevin claims the trial court failed to consider his
inability to pay the educational expenses as portrayed on his
income disclosure statement. Kevin claims his monthly living
expenses of $35,354 are far greater than his monthly income of
$16,000, creating a deficit of $19,359.
However, the trial court noted that Kevin is remarried and
pays $16,000 a year in private school tuition for his nine-year-
old stepson and approximately $12,000 a year in private school
tuition for his four-year-old son, and his two-year-old son
attends private school as well.
Thus, based on the total financial evidence presented, and
the income disparity between Janet and Kevin, we cannot say that
the trial court was being arbitrary, fanciful, or unreasonable
when it determined that Kevin should pay 75% of the college
expenses.
The trial court found that Kevin is in a far better
financial position than Janet to contribute to their children’s
educational expenses.
The trial court found that Kevin failed to fulfill court
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ordered obligations to pay child support, medical insurance
premiums and reimbursement of medical expenses while paying over
$16,000 a year for the private school of a stepson whom he has no
legal obligation to support, along with $12,000 for his four-
year-old’s private schooling.
The trial court considered the record in its entirety when
it found Kevin should pay 75% of all section 513 expenses while
Janet is responsible for the remaining 25%. Though, as
previously discussed, the trial court erred in finding that Kevin
should pay section 513 expenses that accrued prior to the filing
of Janet’s petition.
Next Kevin argues that the trial court ruling in the case at
bar is unjust because he did not receive notice that his children
were entering college and the costs involved.
While we note that the record shows that there was very
little contact between Janet, the three boys and Kevin since the
divorce, as the trial court noted, Janet testified that Kevin
will not communicate with her. Janet testified that she has sent
letters to Kevin regarding child support, medical expenses,
medical insurance payments and that he usually does not respond.
In addition, Kevin testified that he was aware that his children
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were attending college because he was informed by his mother.
Thus, we cannot say that the trial court’s ruling is unjust,
as Kevin claims, because the divorce judgment alerted him to his
potential future responsibility for educational expenses, the
record shows he knew his children were enrolled in college and he
made no effort to discuss the matter with the children or Janet.
Kevin claims the trial court failed to consider the standard
of living the children would have enjoyed had the marriage not
been dissolved. The record shows that prior to the divorce Kevin
worked as a surgeon and the family lived in an expensive home in
Winnetka, Illinois. The record also shows that at the time of
the hearing Kevin operated two medical businesses and lived in a
$1.6 million home in Nevada. As a result, we cannot say that
Kevin would have not been able to afford the college expenses of
his three boys had the marriage not been dissolved.
Kevin did not offer an analysis of the financial resources
of the children or the children’s academic performance. Janet
testified that all three boys work in the summers and use their
earnings for spending money. The record shows that they live
with their mother in Texas in the summers when not attending
school. Based on the record before us, we cannot reasonably
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assume the boys possess the funds to finance their college
education on their own. In regard to academic performance, we
have very little information in the record. Janet claims the
children have performed very well academically. Ian was not
accepted to the University of Texas as a freshman but was able to
transfer there after a year at Wake Forest University. Ellis
attends the California Polytechnic State University.
Based on the evidence in the record, we cannot say the trial
court’s ruling is arbitrary, fanciful, or unreasonable, or that
no reasonable person would take the view adopted by the trial
court. Koster, 235 Ill. 2d at 36. Therefore, we cannot say the
trial court abused its discretion when it required Kevin to pay
75% of his children’s college expenses.
Kevin also claimed the trial court lacked jurisdiction to
require him to pay for any educational expenses for Gregory, who
had already obtained a baccalaureate degree when Janet filed her
petition. We need not consider this issue because Gregory’s
college expenses accrued before the filing of Janet’s petition
and we have determined that under section 510 the court may not
order Kevin to pay for educational expenses that predate the
petition.
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CONCLUSION
For the foregoing reasons, we reverse in part and affirm in
part the June 17, 2008, order of the trial court and remand this
cause for further proceedings to determine the amount due from
Kevin for college expenses, consistent with this order. We
affirm the August 18, 2008, trial court order.
Affirmed in part and reversed in part; cause remanded.
TOOMIN, P.J., and FITZGERALD SMITH, J., concur.
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