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No. 3-03-0518

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE McDADE delivered the opinion of the court:

BACKGROUND

The Cianchettis were divorced in 1988. At the time, Mario was awarded custody of the two daughters of the marriage, Echo and Felicia. The children lived with Mario until they wereseniors in high school, when they moved out of his home and moved in with their mother, DarleneMartin.

Although the children were educated in public school through their grade school years,when they were old enough, Mario enrolled them in Marian Catholic High School.

Mario's expenses/income affidavit reveals that he nets $4,123.09 per month, withexpenses of $4,248.53, leaving him with a deficit of $125.44. This calculation does not includethe $7,400 tax refund Mario received in 2002, which is equal to $616 a month in additionalincome for that year.

The Cianchetti daughters intend to attend Columbia College in Chicago. Echo has alreadybegun her schooling at Columbia, and studies theatre, while Felicia intends to study dance. Bothprograms offer internships and other opportunities for participation in the arts community ofChicago. Other schools in the area do not offer similar programs. Echo had already completedone year at Columbia prior to the ruling in this case, although it is unclear how she paid thetuition.

Annual tuition at Columbia is $13,914 for each of the girls. Books, supplies and feesbring the total cost for Columbia to approximately $15,000 per year. This amount does notinclude room and board. The sisters intend to live together in Chicago and will pay for housingand other living expenses through their own savings. In 2002, Echo earned approximately$14,373, and she has savings of around $2,200. Both girls have around $1,800 each in bonds.

Darlene Martin has an income of approximately $42,000 a year, most of which she uses topay for incidental expenses related to the girls, like shopping trips and vacations. In addition, hernew husband, Kevin Martin, nets roughly $140,000 per year.

Mario had attempted to call Daniel Kriedler as an expert witness at the hearing on thematter. Mr. Kriedler would have testified about other educational programs available to the girlsand would have discussed educational costs and alternative methods of funding the expenses. Thetrial court rejected the evidence, stating that it was not relevant, since Kriedler had not donecomparisons with other programs substantially similar to that offered at Columbia College.Following the hearing, the trial court found that Mario could afford to pay half of the combinedtuition of both girls to Columbia College and set the amount at $15,000 a year.

ANALYSIS

A trial court's decision to award educational expenses will be overturned only if it isagainst the manifest weight of the evidence. In re Marriage of Hillebrand, 258 Ill. App. 3d 835,840-41, 630 N.E.2d 518, 522 (1994). A decision is against the manifest weight of the evidencewhen the opposite conclusion is clearly evident or where it is unreasonable, arbitrary or not basedon the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512-13 (1992).

Section 513 of the Illinois Marriage and Dissolution of Marriage Act authorizes the trialcourt to order a parent to pay for the educational expenses of a child of majority age. 750 ILCS5/513(a) (West 2002). In making the decision whether to order the payment of educationalexpenses, the court should consider all "reasonable and necessary" factors, including: (1) thefinancial resources of both parents; (2) the standard of living the child would have enjoyed had themarriage not been dissolved; (3) the resources of the child; and (4) the child's academicperformance. 750 ILCS 5/513(b) (West 2002)).

The petitioner first alleges that he is not in a financial position to pay the tuition. A partyshould not be required to pay more for a child's college tuition than he can afford. In re Supportof Pearson, 111 Ill. 2d 545, 552, 490 N.E.2d 1274, 1277 (1986).

Mario's financial affidavit alleges that, at the rate at which he currently spends money, hefinds himself in deficit of approximately $120 at the end of each month. The affidavit does notfactor in Mario's 2002 tax refund of $7,400, which effectively increased Mario's monthly incomefor one year by around $616. In any event, Mario does not have much more than $500 ofdisposable income per month, or $6,000 per year. Darlene argues that since Mario could affordto send his daughters to private high school, he should be able to send them to a private college. Mario asserts that he mortgaged his house, following the failure of his business, to pay theapproximately $12,000 Marian Catholic tuition for the girls. That money would not be availablefor future tuition payments.

Darlene, on the other hand, makes $42,000 per year, most of which is disposable income. Her husband is a commercial pilot and makes around $140,000 per year. Although Darlene's new husband is not obligated to pay for her children's tuition, and his income shouldnot be used to determine her ability to pay tuition, it is properly used to examine the extent towhich her income can be freed through reliance on her husband for support. Street v. Street, 325Ill. App. 3d 108, 114 758 N.E.2d 887, 891-92 (2001). Darlene's husband, Kevin Martin, makes asubstantial amount of money as a pilot and is able to provide Darlene with significant support. Infact, Mario alleges that Kevin's support is so significant that it allows Darlene to spend most ofher income on shopping trips, cheerleading camps, cellular phone bills, and other discretionaryexpenses for the girls. Darlene's brief does not dispute the allegation. In all, it appears thatDarlene can afford to pay a significant portion of the tuition expenses of the children.

It is not clear whether the children would have enjoyed a standard of living sufficientlyaffluent to afford the tuition at Columbia College had their parents remained married. The mothernow makes about $42,000 per year, while the father makes around $75,000. Darlene's income isdeceptively low, however, since she can rely on her new husband's income for her support. It isprobably accurate to say that the children enjoy a higher standard of living now than they wouldhave if their parents had remained married, since they have the benefit of their father's income anda higher proportion of their mother's income than would otherwise be the case in the absence ofKevin Martin's income.

Echo and Felicia have significant economic resources themselves. Both have jobs andsave money. In fact, Darlene proposes that the children will pay for their own room and board inChicago while attending Columbia. The question remains why the children cannot use part of thatmoney to pay tuition and live at home. In that circumstance, the housing is free, but there wouldbe daily transportation expenses. Darlene's brief does not answer this question, except to statethat the children would prefer to live in Chicago.

With respect to the final factor, the girls' academic performance, we are not presentedwith any evidence of their grades in either high school or college. We are told, however, thatwhile Echo was not a good student in high school, she has performed well in her first semester atColumbia College. In addition, Darlene argues that Columbia College is well suited to herdaughters' studies, since it has well-regarded programs in theatre and dance that feature internshipopportunities in the Chicago arts community.

Mario argues that, in addition to the factors stated in section 513(b), the court shouldadhere to an alleged preference in the cases for public schools over private. In support, he citesPlaster v. Plaster, 47 Ill. 290 (1968); In re Marriage of Brust, 145 Ill. App. 3d 257, 261-62, 495N.E.2d 133, 136 (1986) and In re Support of Pearson, 111 Ill. 2d 545, 551-52, 490 N.E.2d 1274,1277 (1986).

In Pearson, the supreme court ordered that the original trial court order requiring therespondent to pay $100 per month for his son's post-high-school tuition be reinstated, andreversed an order of the appellate court requiring the respondent to pay $5,150 a year for twoyears. The court found that private school tuition, upon which the appellate decision was based,was an inappropriate benchmark for determining the tuition award, especially when there wereless expensive state institutions and where there was no showing that the private institution wassuperior to the state institution. Pearson, 111 Ill. 2d at 551-52, 490 N.E.2d at 1277. Nevertheless, there were other considerations in that case that weighed on the court's decision,such as the low income of the respondent and the fact that the respondent's other childrenreceived less for their tuition. Pearson, 111 Ill. 2d at 552, 490 N.E.2d at 1277-78.

In the instant case, the factors could be seen as supporting Mario's case. The girls havesubstantial savings of their own and can afford to pay some of their own tuition. Nevertheless,they would rather use the savings to live in Chicago. As Mario points out, an apartment inChicago is not necessary to the girls' education. In addition, Darlene's financial position is farbetter than her $42,000 salary would indicate. She may rely on her new husband's income for herexpenses and presently uses her income for shopping trips and vacations for herself and the girls.Finally, while the programs in dance and theatre at Columbia College offer a number of uniqueopportunities, there is no evidence to show that there are no similar state programs. Also, theinternships that the girls wish to take advantage of do not begin until junior year, and as Mariopoints out, the girls could attend a cheaper state program until then.

However, this court must defer to the discretion of the trial court in this matter.Hillebrand, 258 Ill. App. 3d at 840-41, 630 N.E.2d at 521. While it would be difficult for Marioto pay for his children's education at Columbia College, it does seem that he can afford it,especially since he was able to pay for the girls' tuition to private high school, at $12,000, andmake child support payments, at $15,000. Mario argues that he was forced to mortgage hishouse to pay his child support obligations. This does not explain how Mario was able to pay thetuition to Marian High, however. That tuition is not substantially less than the amount he is beingasked to pay here. He is, of course, no longer obligated for those payments. Examined for anabuse of discretion, the trial court's decision was not clearly unreasonable under thecircumstances.

Mario also argues that it was error for the trial court to refuse to hear the expert testimonyof Daniel Kriedler, who was offered to testify about the cost of higher education, funding collegeeducation and resources available to college students. The trial court barred the testimonybecause Kriedler had not done a comparison between the programs offered at Columbia andsimilar programs offered at other institutions. Specifically, the court noted that Kriedler had notidentified any programs with similar internship opportunities. The court felt that Kriedler'stestimony would not be relevant, since a comparison between schools could not be made.

The trial court is granted broad discretion in determining whether to admit experttestimony, and may do so when the testimony will aid the trier of fact on a topic beyond the kenof the average person. Swanigan v. Smith, 294 Ill. App. 3d 263, 273-74, 689 N.E.2d 637, 644(1998). Mario argues that the court abused its discretion by refusing to allow the evidencebecause it was not necessary for Kriedler to draw comparisons between similar programs.

Mario has not demonstrated an abuse of discretion. While the court could have admittedthe evidence, it was not required to do so. Kriedler could not draw comparisons betweenColumbia College and other programs offering similar programs in theatre and dance. Thecourt's decision that the evidence would not aid the trier of fact was not an abuse of discretion.

CONCLUSION

The evidence, to some degree, supports Mario's argument that he is being required to paytoo much for his daughters' tuition to Columbia College. It indicates that he will have to workhard to fit a $15,000 expense into his budget. Nevertheless, he was able to make similarpayments for high school expenses and child support. Despite some evidence to support Mario'sposition, we cannot find that the trial court abused its discretion in ordering the tuition payments.

In addition, the court did not err in refusing the expert testimony of Daniel Kriedler. Thecomparisons Kriedler attempted to draw were with programs that were not similar to the programoffered at Columbia and were of limited probative value. The order of the circuit court of WillCounty ordering educational expenses is affirmed.

Affirmed.

SLATER and BARRY, JJ., concur.