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September 06, 2001

No. 3-00-0904

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APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

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JUSTICE McDADE, delivered the Opinion of the court

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On March 15, 2000, Linda Street, n/k/a Linda Ross (Linda), filed a petition for collegeeducational expenses, asking the court to require Daniel Street (Daniel), her ex-husband, to pay75% of the cost of sending their son, Austin Street (Austin), to Bradley University. She alsoasked the court to order Daniel to pay $300.00 per month toward Austin's room, board, dues,transportation, books, fees, etc. while Austin resided with her and attended Bradley. At thehearing on June 14, 2000, the trial court refused to consider the income of Linda's currenthusband, Carl Ross. On July 7, 2000, the court entered an order requiring Daniel Street to pay75% of the remaining $12,100 toward Austin's college education, and $235 toward Austin'sadditional expenses. Daniel appeals from the trial court's refusal to consider Carl Ross' income,and from the order requiring him to pay $9,000 towards Austin's Bradley education. We affirmin part, reverse and vacate in part, and remand.

FACTS

Linda and Daniel were divorced on March 9, 1992. At that time, they had two minorchildren. The dissolution judgment incorporated a marital settlement agreement which gaveLinda custody of the minor children, subject to Daniel's visitation rights. In addition, the postmajority college expense was "specifically reserved." From the time of their divorce in March1992 until Thanksgiving 1996, Daniel regularly exercised his visitation rights, apparently withsome difficulty.

Around Thanksgiving 1996, Daniel's children refused to accompany him to aThanksgiving dinner at the time previously specified by the court. On December 1, 1996, Danielwrote his children a letter, explaining to them that he would no longer attempt to exercisespecific visitation. Rather, he asked them to contact him when visitation was convenient forthem. Between December 1, 1996, and June 2000 Daniel only heard from Austin twice. However, Daniel continued to send Austin cards on his birthday and Christmas, without anyresponse.

On March 15, 2000, Linda filed a petition for college educational expenses, stating thatAustin had been accepted to Bradley University (Bradley) for enrollment in the fall semester. The petition also set forth that Austin had an aptitude in math and science, and that he wasplanning to pursue a mechanical engineering degree at Bradley.

According to Linda's financial affidavit, she was employed as an office manager with anet monthly income of $1,746, she received $860.00 per month in child support, and she hadtotal living expenses of $4,876.66 per month. Her affidavit did not disclose any mortgage or rentobligation, ownership of an American Mutual fund, a New Economy fund, income from interestsin a farm trust and a family partnership, or any real estate tax obligations.

Daniel's financial affidavit reflected that he worked at Caterpillar as an electrician,earning a net monthly income of $2,164.63 (after paying $909.30 in child support). He had totalliving expenses of $2,840.28 per month, along with assets totaling $156,535.52 in value and debttotaling $34,911.35. His paycheck stub indicated that he earned $23.18 per hour, and averaged6.14 hours per week in overtime. However, according to Daniel's tax return and W-2, he earned$80,843.93 in 1999.

During the discovery process, Linda refused to produce anything regarding the income orassets of her current husband, Carl Ross. At the hearing on the petition on June 14, 2000,however, Linda did testify that she and Carl Ross had been married in November 1999, and theyhad been living together in a newly constructed, jointly-owned home for a little over a year at thetime of the hearing. Linda testified that the home was valued at approximately $420,000, andthey had a mortgage of approximately $370,000. Linda also testified that she had a checking andsavings account held in joint tenancy with Carl, as well as a mutual fund worth about $25,000.

At the hearing both Linda and Daniel testified in detail regarding their financial status. Linda was extensively cross-examined with regard to the items not disclosed on her financialaffidavit. In addition, the court did allow some cross-examination with regard to assets heldjointly by Linda and Carl. However, the court refused to allow any inquiry into assets or incomeheld solely by Carl.

During the hearing, Linda produced the projected annual expenses for Austin to attendBradley as a commuter student in 2000-2001. The estimated tuition was $14,600, which wouldbe reduced by a $2500 scholarship. An additional $2,000 would be needed for books andsupplies, clothing, laundry, recreation, transportation and other personal expenses. BecauseAustin planned to live at home, costs for room and board were not included in the projection. Linda submitted her own estimate for Austin's expenses, including his share of the familyutilities and meals totaling approximately $225 per month, and his activities totalingapproximately $250.00 per month.

Daniel introduced evidence with regard to the estimated cost to attend the University ofIllinois on a full-time resident basis for an engineering student, which totaled $12,180 per year. Daniel also introduced evidence that Austin could attend Illinois Central College forapproximately $1,600 per year plus room and board, or Eastern Illinois University (anothercollege to which Austin had been accepted) for between $7,000 and $8,000 per year for tuition,room, and board. Daniel testified that he believed a state school would meet his son'seducational needs, and that he would have encouraged Austin to attend a state school had theparties remained married.

Austin's certified high school transcript was also introduced into evidence. According tothe transcript, Austin graduated 131st out of 247 students and his grades in math and sciencewere a cumulative C+ average. He, however, had scored in the 81st percentile on the PSAT.

On July 7, 2000, the trial court entered an order requiring Daniel to pay $9,000 towardsthe 2000-2001 tuition for Austin to attend Bradley University. In addition, the court requiredDaniel to contribute $235.00 per month for Austin's living expenses while he resided with hismother. The court made these payments contingent upon Austin remaining a full time student ingood status and residing with Linda on a full time basis.

Daniel had filed a motion for rehearing on August 4, 2000, which was denied on October26, 2000. Daniel filed his timely notice of appeal on November 22, 2000.

ANALYSIS

Daniel raises two issues on appeal: (1) whether the trial court erred in refusing to permitdiscovery or inquiry into all financial resources available to Linda Ross, including the assets andincome of Carl Ross, and (2) whether the trial court erred in ordering Daniel to pay 75% of thecost of private school tuition.

A. Relevance of Carl Ross' Income and Assets

Daniel argues that the trial court erred by refusing to allow him to investigate or inquireinto the assets and income of Carl Ross. In support of this argument, Daniel cites the statutoryfactors to be considered by the court in deciding whether or not to grant post majority support.

The relevant statute is found in Section 513 of the Marriage & Dissolution of Marriage Act (Act),750 ILCS 5/513 (West 1993), which provides:

"(b) In making awards*** [for educational expenses] pursuant to apetition or motion to decrease, modify or terminate any suchaward, the court shall consider all relevant factors that appearreasonable and necessary, including:

(1) the financial resources of both parents,

(2) the standard of living the child would have enjoyed had the marriage not beendissolved,

(3) the financial resources of the child,

(4) the child's academic performance."

Based on these relevant factors, Daniel argues that the financial resources of both parentsinclude the financial resources of a parent's current spouse. In support of this argument, Danielcites In Re Marriage of Drysch, 314 Ill. App. 3d 640, 732 N.E.2d 125 (2000). In the Dryschcase, the court held that a trial court may equitably consider the income of a parent's currentspouse in determining an appropriate award of child support. The court based this decision onthe fact that both parties realistically pool their resources with those of their second spouses,resulting in their assets and liabilities being substantially intertwined. The court also noted thatby using the term "resources", rather than a more narrow term such as income or salary, thelegislature intended the trial court to consider all the money or property to which a parent hasaccess. Drysch, 314 Ill. App. 3d at 644-45, 732 N.E.2d at 129.

Linda argues that although the Drysch decision does provide some support for theargument that a trial court can consider the current spouse's income as part of the financialresources for purposes of determining the amount each party should pay toward a child'seducation, it does not create a mandate that the court do so. In addition, Linda points to the longline of cases which have traditionally held that the financial status of the custodial parent'scurrent spouse is not considered in a proceeding to modify support because the new spouse hasno legal obligation for the support of his or her step children. See, e.g., Robbin v. Robbin, 45 Ill. App. 3d 365, 371-72, 359 N.E.2d 809 (1977).

Whether or not the trial court erred in refusing to allow investigation into Carl Ross'income is an evidentiary issue which is governed by an abuse of discretion standard of review. In Re Marriage of McHenry, 92 Ill. App. 3d 634, 683 N.E.2d 670 (1997). A trial court isconsidered to have abused its discretion when it makes a decision based upon an incomplete orinadequate record. In Re Marriage of Weiss, 129 Ill. App. 3d 166, 472 N.E.2d 128 (1984).

In reviewing the case law on this issue, there are no Illinois cases other than Dryschwhich have dealt directly with the issue at hand. However, as previously indicated, thetraditional rule had been that the financial assets of the current spouse are not relevant in makinga support determination. Given the traditional rule and the lack of controlling case law to thecontrary, it is difficult to say that the trial court really abused its discretion in refusing to allowinquiry into Carl's assets in this case. However, there is clearly a current trend in the case lawmoving away from the traditional rule of law on this issue.

The current trend began with In re Support of Whitney, 90 Ill. App. 3d 734, 413 N.E.2d872 (1980), followed by Greiman v. Friedman, 90 Ill. App. 3d 941, 414 N.E.2d 77 (1980),which found that the trial court abused its discretion in not allowing testimony about the father'sfinancial obligations to his second family. These cases have been followed by several otherswhich have authorized a review of the noncustodial parent's current spouse's income. See e.g., Inre Marriage of Garelick, 168 Ill. App. 3d 321, 522 N.E.2d 738 (1988), In re Marriage of Keown,225 Ill. App. 3d 808, 587 N.E.2d 644 (1992), and In re Marriage of Riegel, 242 Ill. App. 3d 496,611 N.E.2d 21 (1993). In fact, this court found that the payor's monthly expenses are to beshared to the extent that the new spouse contributed to their living expenses in Thurston v.Thurston, 260 Ill. App. 3d 731, 633 N.E.2d 118 (1994).

Although each of these cases dealt with the current spouse of the payor, the sameunderlying principle should apply to the current spouse of the payee. To the extent that thecurrent spouse of the payee has income or assets which are or can be used to contribute to theliving expenses of the payee, his or her income and assets should be considered by the court inmaking its determination regarding the amount the payee is able to contribute to the child'seducation. Certainly, we are not saying that the new spouse of a parent is obligated to pay for thechild's education, but only that to the extent the new spouse contributes to the expenses whichwould otherwise be paid by the parent, the new spouse's income and assets are relevant.

Given this analysis and the current trend of the law on this issue, we believe that thebetter rule of law is to follow the Drysch decision. Therefore, we find in the present case thatfailing to consider Carl's income and assets to the extent they are or can be used to contribute toLinda's expenses constitutes an abuse of discretion. We reverse the trial court's ruling on thisissue and remand this case for further discovery regarding Carl's income and assets, and forfurther hearings regarding Linda's ability to contribute to Austin's college expenses.

• Appropriateness of Court Order for Private School Tuition

Daniel argues that the trial court committed error by ordering him to pay 75% of the costof tuition at Bradley, after reducing the tuition cost by the $2,500 scholarship Austin hadreceived. Bradley is a private university. Daniel bases his argument on five factors: (1) theasserted preference for public schools in Illinois, (2) the financial resources of both parties, (3)the standard of living Austin would have had if the parties had remained married, (4) Austin'sacademic performance, and (5) the fact that he and Austin have had an estranged relationshipsince Thanksgiving, 1996.

Whether the trial court erred in requiring Daniel to pay 75% of the remaining cost forAustin to attend Bradley relates to an award of educational expenses in a dissolution proceeding. This question is governed by an abuse of discretion standard of review. In Re Marriage ofThurmond, 306 Ill. App. 3d 828, 715 N.E.2d 814 (l999).

First, Daniel argues that there is a preference for public schools in Illinois. In support ofthis position, he cites Plaster v. Plaster, 47 Ill. 290 (1868), in which the Illinois Supreme Courtfound that no allowance should be made for the expense of tuition if a free school is reasonablyavailable. Over the years, the Illinois Supreme Court has reiterated its preference for tying aparent's obligation for post majority education to the cost of public school tuition. In Re Supportof Pearson, 111 Ill. 2d 545, 490 N.E.2d 1274 (1986).

However, the Illinois courts are generally less concerned with the type of school than withthe overall cost of attendance. In making the determination with regard to whether or not the costof school tuition is reasonable, the court will consider the parents' ability to pay for their child'scollege expenses. Gibb v. Triezenberg, 188 Ill. App. 3d 695, 544 N.E.2d 444 (1989).

In this case, the trial judge specifically found that the commuter cost for Bradley wasreasonable. Based on the information presented at the trial, and the fact that no evidence wasproduced which indicated that the cost was unreasonable or out of line for similar colleges, itdoes not appear as though that finding was an abuse of discretion by the trial court.

Second, Daniel argued that the court erred in its analysis of the parties' disparate incomes. In analyzing the income between Daniel and Linda, it is clear that Daniel earns a greater salarythan Linda at his job. In addition, based on Daniel's financial affidavit, it is apparent that he doeshave the ability to assist in Austin's education. Although Daniel does not make three times whatLinda makes, the trial court could consider both the income and the property of Daniel indetermining whether he was financially able to contribute $9,000 towards Austin's education. Larson v. Larson, 126 Ill. App. 3d 1072, 468 N.E.2d 165 (1984). In comparing the assets ownedby Daniel to those solely owned by Linda, it is clear that Daniel's are greater. Although the trialcourt should consider the income and assets of Carl Ross, they can only be considered to theextent that they assist Linda in paying her monthly expenses and free up some of her income forassisting Austin. They should not be considered in making the determination regarding Daniel'sability to assist Austin in paying for his education based on Daniel's income and assets. Therefore, we cannot say that the court's determination was an abuse of discretion.

Third, Daniel argued that had he and Linda remained married, he would have encouragedAustin to attend public school. However, there was some evidence produced at trial that Danielhad expressed the hope that one or both of his children would attend a private fundamentalistschool. In addition, according to the record, the court made the determination that the partiescould afford to assist Austin in attending Bradley, and that its cost was reasonable. As previouslyindicated, based on a review of the record, this court cannot say those findings amounted to anabuse of discretion.

Fourth, Daniel argued, based on Austin's past educational performance, that he would bebetter off in a smaller institution for the first two years, with the possibility to transfer to theUniversity of Illinois. Clearly, the court did consider Austin's academic transcripts and the factthat he had been accepted to Bradley on scholarship. In addition, although the record is silent asto the SAT or ACT, Austin scored well on his PSAT. Based on those facts, we cannot say thatthe trial court abused its discretion in approving tuition for Bradley.

Finally, Daniel argued that his responsibility should be reduced given his estrangedrelationship with his son. However, the estrangement is due to Daniel's own actions, specificallyhis December 1996 letter. Courts do not look favorably on this type of argument, especially whenthe estrangement is due to some action of the parent. See In re Marriage of Sreenan, 81 Ill. App.3d 1025, 402 N.E.2d 348 (1980), (finding that the obligation of a parent to contribute toeducational expenses is not conditioned upon a continued good relationship between the parentand child). We cannot find that the court's refusal to reduce Daniel's contribution to Austin'seducation was an abuse of discretion based on this argument.

Based on the foregoing, it does appear that the trial court's decision ordering Daniel toassist with Austin's education at a private university was reasonable and was not an abuse ofdiscretion. This is particularly true considering the fact that the trial judge made the continuationof this support contingent upon Austin remaining a student in good standing and continuing tolive at home.

C. Appropriateness of Additional Support for Austin

The trial court ordered Daniel to pay $235 per month in child support for Austin,allegedly to help offset his monthly expenses for living at home. Although neither partyofficially raised this as a separate issue, both parties briefed the arguments regarding theappropriateness of that portion of the order, and we find it necessary to address.

Section 513 of the Act authorizes the trial court to make provisions for maintenance aswell as the educational needs of a child. In addition, "educational expenses entitle a mother toreceive reasonable living expenses in addition to the cost of tuition and books when the childrenare residing at home while attending college." Marriage of Falat, 201 Ill. App. 3d 320, 327, 559N.E.2d 33, 37-38 (1990).

In this case, the trial court ordered Daniel to pay $235 per month toward Austin's"reasonable living expenses." This was approximately 50% of Austin's estimated monthlyexpenses, as calculated and testified to by Linda. The estimate was reached, according to therecord, by dividing the family's monthly expenses (including food and utilities, but not themortgage) by five, because there were five persons living in the house. To that figure, Lindaadded approximately $225 per month for Austin's special events (including band, Boy Scouts andCYO), reaching a total of $478.73.

Although some order for reasonable living expenses is certainly authorized by the act andthe case law, the expenses must be based on the child's financial resources, the financialresources of both parents, and the standard of living the child would have enjoyed but for thedissolution of marriage. Falat, 201 Ill. App. at 326, 559 N.E.2d at 37. Based on the evidencepresented in this case, Austin's standard of living has increased since the dissolution since Linda'smarriage to Carl. The house he currently resides in is newer and larger, so logic would dictatethat it may be more expensive to maintain. By basing Austin's reasonable expenses on one-fifthof the family expenses, Daniel is being forced to pay for Austin's increased standard of living. Inaddition, no evidence was presented to show that Austin would be able to continue to play in theband at Bradley, or that he would have any costs associated with a continued relationship withBoy Scouts and CYO.

In the absence of additional information, we believe that the trial court did abuse itsdiscretion in ordering Daniel to pay $235 toward Austin's living expenses. Thus, we remand thiscase to the trial court for further proceedings on that issue.

CONCLUSION

Based on the foregoing, the trial court's refusal to consider Carl Ross' income and assets,and its order requiring Daniel to pay $9000 toward Austin's education is affirmed as to thepropriety of Bradley as the source of his education but reversed as to the amount, and the issue isremanded to the trial court for further handling in accordance with this opinion. The orderrequiring Daniel to pay $235.00 for Austin's room and board, contingent upon Austin remaininga student in good standing and living at home is vacated, and the case remanded to the trial courtfor further proceedings on that issue.

Affirmed in part, reversed and vacated in part, and remanded.

LYTTON and HOLDRIDGE, J.J., concur.