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No. 3--03--0897

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Although Robyn has failed to file an appellee's brief, wereach the merits of the appeal pursuant to the guidelinesexpressed in First Capitol Mortgage Corp. v. TalandisConstruction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976). Weaffirm in part, reverse in part, and remand for furtherproceedings.

The parties were divorced on October 6, 1997. The judgmentorder incorporated a separation agreement containing two relevantrequirements. First, the parties were each required to "pay 10%of the college expenses incurred by their children, Elizabeth AnnGowdy and Dawn Renea Gowdy." Second, Douglas was required to"keep [Dawn] insured under a policy of medical andhospitalization insurance."

On May 13, 2003, Robyn filed a motion seeking bothenforcement of the above two provisions, as well as attorneyfees. Specifically, Robyn sought to have Douglas pay $4,966, or10% of the $49,660 in total costs for Dawn's previous two yearsat Augustana College. In response, Douglas contended that theplain language of the judgment of dissolution required him to payonly 10% of "college expenses incurred." Therefore, Douglasdeducted grants and scholarships Dawn received--but would nothave to repay--from the $49,660 total in determining hisobligation. Douglas calculated that his obligation was thereforeonly $2,300, or 10% of the $23,000 in college expenses notcovered by scholarships and grants.

Robyn also sought to have Douglas maintain insurance forDawn. Douglas testified at a hearing on the motion that he hadbeen maintaining Dawn as a named insured under a policy offeredby his new wife's employer, John Deere & Company. Douglasindicated that he terminated Dawn from that policy afterdiscussions with a company insurance representative led him tobelieve that she was ineligible.

The circuit court disposed of these issues in two separateorders. On July 16, 2003, the court ordered Douglas to pay thefull $4,966 toward Dawn's prior college expenses, with credit fora $2,300 payment he made to Augustana College sometime betweenMay 21, 2003, and July 16, 2003. That order also awarded Robyn$300 in attorney fees. On July 30, 2003, the court orderedDouglas to maintain Dawn as a named insured under the "John DeereHealth & Hospitalization Plan."

Douglas filed a timely posttrial motion challenging both ofthese orders. At the hearing on this motion, Douglas also askedthat the court take judicial notice of the fact that he hadrecently divorced his new wife. He therefore contended that itwas impossible for him to maintain Dawn as an insured under theJohn Deere insurance policy. The court denied the motion andaffirmed the obligations contained in its prior orders. Douglasappealed.

Douglas first challenges the circuit court's determinationthat the dissolution judgment required him to pay 10% of the fullcost of Dawn's college expenses. Douglas contends that under theplain language of the judgment, he is only obligated to pay 10%of the college expenses not covered by scholarships and grants. We agree.

Douglas's argument questions the circuit court'sinterpretation of the requirements of the separation agreementincorporated into the judgment of dissolution. Rules of contractconstruction apply to the interpretation of such provisions. Inre Marriage of Druss, 226 Ill. App. 3d 470, 589 N.E.2d 874(1992). The provisions are construed in order to give effect tothe intention of the parties, and where the terms areunambiguous, the parties' intent must be determined solely fromthe plain and obvious meaning of the language itself. In reMarriage of Holderrieth, 181 Ill. App. 3d 199, 536 N.E.2d 946(1989). Whether a dissolution judgment is ambiguous is aquestion of law to be determined by the court. Weber v. Weber,77 Ill. App. 3d 383, 396 N.E.2d 43 (1979).

The judgment order provided, in relevant part:

"The parties shall each pay 10% of the collegeexpenses incurred by their children, Elizabeth AnnGowdy and Dawn Renea Gowdy. Each of their children areobligated to pay 80% of their following collegeexpenses: tuition, room, board, books, fees, travel,food, clothing, lab fees, yearly living expenses,gasoline, and automobile expenses. The parties agreethat it is in the best interest of their children forthe children to secure financing of their educationthrough scholarships, grants, fellowships, work studyprograms and educational loans."

The key language of this passage is "college expensesincurred." (Emphasis added.) Douglas argues that while thetotal college expenses may have been $49,660, neither he, Robyn,nor Dawn is obligated to repay any of the scholarships or grantscredited to Dawn's account by Augustana College. Therefore, theonly college expenses incurred were those over and above thosescholarships and grants, an amount Douglas calculated to be$23,000.

We find that the language of the dissolution judgment isclear and unambiguous. We therefore give the language its plainand obvious meaning. Holderrieth, 181 Ill. App. 3d 199, 536N.E.2d 946. In so doing, we note that we are unaware of anyIllinois cases interpreting language in a dissolution judgmentsimilar to the one at issue here. However, The Random HouseDictionary of the English Language indicates that one definitionof the word "incur" is: "to become liable or subject to throughone's own action; bring or take upon oneself." The Random HouseDictionary of the English Language 969 (2d ed. 1987). Likewise,Black's Law Dictionary defines "incur" as follows: "[t]o sufferor bring on oneself (a liability or expense)." Black's LawDictionary 771 (7th ed. 1999).

Further guidance is provided in two cases from otherjurisdictions. In Arnett v. Arnett, 812 So. 2d 1246 (Ala. Civ.App. 2001), the Court of Civil Appeals of Alabama interpreted asettlement agreement incorporated into a divorce judgement. Thatagreement required the father to pay "one-half of any collegeexpenses incurred by the parties' son." (Emphasis added.) Arnett, 812 So. 2d at 1251. In that case, the son was living athome with his mother and attending a local community college. Nevertheless, the trial court awarded the mother over $4,000 forcollege expenses based upon what would have been spent if the sonhad attended Auburn University and lived on campus. Arnett, 812So. 2d 1246.

On review, the appellate court indicated that it would givethe language in the divorce decree its ordinary meaning andquoted a definition of the word "incur" similar to those citedabove. The court found that under the terms of the decree, thefather was responsible only for actual expenses. The courttherefore remanded the case to the trial court for adetermination of the expenses the son actually incurred for roomand board. Arnett, 812 So. 2d 1246.

Similarly, in Norrell v. Norrell, 236 Ga. 797, 225 S.E.2d305 (1976), the Supreme Court of Georgia interpreted a divorcedecree requiring the father to "pay tuition for the children asthey reach college age or tuition in any other school which theymay enter." Norrell, 236 Ga. at 797, 225 S.E.2d at 306. Theevidence showed that the parties' son attended the JulliardSchool of Music, which had an annual tuition of $2,690. Thetrial court required the father to pay this entire amount,despite the fact that the son received an $800 scholarship thatwas applied to his tuition. The Supreme Court of Georgia heldthat the language of the divorce decree only obligated the fatherto pay the net tuition and remanded the case to the trial courtwith instructions to allow the father a credit for the $800scholarship. Norrell, 236 Ga. 797, 225 S.E.2d 305.

Guided by the reasoning in these two opinions and thedictionary definitions of the word "incur," we hold that Douglasis entitled to a credit for the scholarships and grants that Dawnhas received. The language of the dissolution judgment makes itclear that the parties anticipated that Dawn would be applyingfor grants and scholarships. By also indicating that the partieswould only be responsible for 10% of the "college expensesincurred," it is clear the parties intended that any scholarshipsor grants that Dawn actually received would reduce theirobligation accordingly.

To hold otherwise would yield an absurd result. Forexample, if Dawn had received scholarships and grants coveringthe entire $49,660 in tuition, room, board and other expenses,she would have personally incurred no expense for the first twoyears of her college education. Without a credit for thosescholarships and grants, however, the dissolution judgment wouldrequire both Douglas and Robyn to bestow upon Dawn a windfall ofnearly $5,000 each. We do not believe that this is what theparties intended.

We therefore reverse the circuit court's decision as to thecollege expenses. However, we are unable to determine from therecord what Douglas's current financial obligation is. Wetherefore remand this cause to the circuit court withinstructions to credit Douglas for the scholarships and grantsDawn received. The circuit court should also credit Douglas forthe $2,300 he has already paid to Augustana College and determinewhat, if any, additional payment must be made to satisfy hisobligation under the dissolution judgment.

B. Insurance

Douglas also contends that the circuit court erred inordering him to maintain Dawn as a named insured under the JohnDeere Health & Hospitalization Plan. Douglas's argument raises aquestion as to whether the circuit court improperly modified theprevious support order. We find that it did.

We note that all court orders respecting the support ofchildren are modifiable at any time, even if a dissolutionjudgment states otherwise. 750 ILCS 5/502(f), 510(a) (West2002); In re Marriage of Loffredi, 232 Ill. App. 3d 709, 597N.E.2d 907 (1992). However, the circuit court has no authorityto modify child support obligations until a petition for suchmodification is filed (In re Marriage of Sawyer, 264 Ill. App. 3d839, 637 N.E.2d 559 (1994)), and a petition to enforce adissolution of marriage judgment is distinct from a petition tomodify a dissolution of marriage judgment (Loffredi, 232 Ill.App. 3d 709, 597 N.E.2d 907). Finally, a circuit court'sauthority is limited to the relief sought in the pleadings. Inre Marriage of Zukausky, 244 Ill. App. 3d 614, 618, 613 N.E.2d394, 398 (1993), citing Stark v. Stark, 131 Ill. App. 2d 995, 269N.E.2d 107 (1971).

In this case, Robyn only brought a motion to enforce theterms of the dissolution judgment. That dissolution judgmentincluded only a generalized requirement that Douglas keep Dawnunder a "policy of medical and hospitalization insurance." Therewas no requirement that Douglas maintain any specific insurancepolicy. Moreover, the motion to enforce only requested an ordergenerally requiring Douglas to "put and keep Dawn under a policyof medical and hospitalization insurance." Nevertheless, thecircuit court specifically ordered Douglas to insure Dawn underthe John Deere Health & Hospitalization Plan provided by his newwife's employer.

We find that in making this decision, the circuit courtimproperly modified the judgment of dissolution by adding newrequirements to the order in the absence of a motion to modify. Sawyer, 264 Ill. App. 3d 839, 637 N.E.2d 559. The order alsoimproperly granted relief in excess of, and more specific than,that requested in the motion to enforce. Zukausky, 244 Ill. App.3d 614, 613 N.E.2d 394. For these reasons, the circuit court'sdecision must be reversed.

Moreover, even if the court did have the power to modify thedissolution judgment, the court erred in denying Douglas's motionto reconsider.

The decision to grant or deny a motion for reconsiderationis within the discretion of the circuit court and will not bereversed absent an abuse of that discretion. Chelkova v.Southland Corp., 331 Ill. App. 3d 716, 771 N.E.2d 1100 (2002). In determining whether the trial court abused its discretion,"the question is not whether the reviewing court agrees with thetrial court, but whether the trial court acted arbitrarilywithout the employment of conscientious judgment or, in view ofall the circumstances, exceeded the bounds of reason and ignoredrecognized principles of law so that substantial prejudiceresulted." In re Marriage of Aud, 142 Ill. App. 3d 320, 326, 491N.E.2d 894, 898 (1986).

At the hearing on the motion to reconsider, Douglas informedthe circuit court that he had recently divorced his new wife,Sherry. Since it was Sherry who was employed by John Deere &Company, Douglas contended that it was now impossible for him tomaintain Dawn as a named insured under the John Deere Health &Hospitalization Plan. Nevertheless, the circuit court denied themotion to reconsider and affirmed Douglas's obligation to keepDawn on the John Deere plan. In light of Douglas's divorce, thisdecision was an abuse of discretion warranting reversal.

We note that the issue before this court is not whether thecircuit court erred in ordering Douglas to maintain some form ofhealth and hospitalization insurance for Dawn. The judgment ofdissolution clearly requires this much. We reverse only thecircuit court's decision specifically obligating Douglas to keepDawn on the John Deere plan.

C. Attorney Fees

Finally, Douglas challenges the award of $300 in attorneyfees. We affirm that award.

Attorney fee awards will not be overturned unless they arean abuse of discretion. In re Marriage of Walters, 238 Ill. App.3d 1086, 604 N.E.2d 432 (1992). In this case, it is true thatDouglas's appeal has been well taken and the circuit court wasincorrect in its rulings on the educational expense and insuranceissues. However, it is also true that Douglas unilaterallyterminated Dawn's insurance coverage and did not pay anythingtoward her college expenses until after Robyn filed her motion toenforce the dissolution judgment. It was on this basis that thecircuit court found Douglas's actions to be without compellingjustification and made a partial award of $300 toward Robyn'sattorney fees. We cannot say that this decision was an abuse ofdiscretion and, accordingly, we affirm the award.

III. CONCLUSION

For the foregoing reasons, the award of attorney fees isaffirmed. In all other respects, the judgment of the circuitcourt of Mercer County is reversed. This cause is remanded tothe circuit court for further proceedings consistent with thisopinion.

Affirmed in part and reversed in part; cause remanded withdirections.

SLATER, J., concurs.

McDADE, J., concurs in part and dissents in part.

As recounted by the majority, the requirement of theparties' separation agreement was that each parent, Robyn andDouglas, was obligated to "pay 10% of the college expensesincurred by their children, Elizabeth Ann Gowdy and Dawn ReneaGowdy." The responsibility for the remaining 80% of their"tuition, room, board, books, fees, travel, food, clothing, labfees, yearly living expenses, gasoline, and automobile expenses"fell on the daughters. With regard to this balance, the judgmentorder stated: "The parties agree that it is in the best interestof their children for the children to secure financing of theireducation through scholarships, grants, fellowships, work studyprograms and educational loans." The undisputed facts indicatethat Dawn, in fact, secured scholarships and grants to help herdefray her 80% of the total costs incurred for her education.

The majority relies on the Alabama case of Arnett v. Arnett,812 So. 2d 1246 (2001), and the Georgia case of Norrell v.Norrell, 236 Ga. 797, 225 S.E.2d 305 (1976), to support theconclusion that Dawn's full annual college costs in the amount of$49,660 had never been incurred. I believe the facts of thiscase, as set out by the majority and summarized above, are so substantively and qualitatively different from those in Arnettand Norrell that they render those cases totally inapposite.

In Arnett, the court quite reasonably found that costs forroom and board at Auburn University had not been "incurred" by astudent who lived at home rather than on campus. In Norrell, thefather, who was required by court order to pay the entire cost ofhis son's tuition at the Juilliard School of Music, was quiteproperly allowed to offset the student's $800 scholarship becauseall that was actually owed by the father was $1,890.

In significant contrast to the circumstances of those twocases, the order in the instant case directed Dawn to securescholarships and grants to help satisfy her 80% of the collegecosts. The expenses for tuition, room, board, books, fees,travel, food, clothing, lab fees, yearly living expenses,gasoline, and automobile expenses totaled $49,660. That entireamount had been or was being incurred and had to be paid. Tohelp defray her lion's share of the costs, Dawn had lined up afinancial assistance package which included the subjectscholarships and grants. To conclude that because she hassecured those to satisfy her portion of the expenses the costshad not been incurred or did not exist defies logic. Moreover,to use part of Dawn's 80% to relieve her father of his obligationto pay his 10% reduces the assets available to her for the other,more personalized costs for which she is responsible. Inaddition, such a reduction constitutes an unjustifiable windfallfor Douglas.

In my opinion, the trial court was absolutely right inrequiring Douglas to pay the entire $4,966 and I would affirm thedecision on that issue.