Appeal from the Circuit Court of Cook County; the Hon. HERBERT
R. FRIEDLUND, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
In this action a petition was filed in a divorce proceeding seeking a post decretal order requiring defendant to pay expenses incident to a college education for a daughter who had reached her majority. The chancellor dismissed the petition on the sole basis that he had no jurisdiction to entertain the petition and this appeal followed.
The parties were married on June 11, 1937, and resided together until the 16th day of October, 1960. Three children were born of this marriage. On January 3, 1961, a decree for divorce was entered in which the mother (plaintiff) was awarded custody of the two minor children, subject to the right of reasonable visitation by the father. The decree further recited that the settlement agreement and the respective releases entered into by the parties "concerning the settlement and disposition of certain rights and obligations with respect to support, maintenance and proprietary interests" were found to be fair, just and equitable and provisions were made in the decree according to the terms of the settlement agreement. Thereafter, on October 2, 1962, an order was entered pursuant to the agreement of the parties giving custody of Lynn, the minor daughter who was then over seventeen, to the father.
Subsequently, on June 21, 1963, after Lynn had attained her majority, plaintiff petitioned the Circuit Court for an order requiring the defendant to pay and defray the expenses incident to a college education for the daughter. The petition recited that when custody of Lynn was given to the father, the defendant represented to the court that he would pay and defray all the costs and expenses incidental to a college education for the minor child, but notwithstanding such promise, he refused to do so after the child reached her 18th birthday; that Lynn had "reached such an educational level as to warrant the furthering of such education at the college or university level, that she has made application and been received at the University of Miami; that the Respondent is well able and capable of paying and defraying the costs of such expenses and that justice and equity demand that an Order of Court should be entered requiring the Defendant and Respondent to furnish and to pay and defray the costs and expenses by said child at the University of Miami."
The sole question presented by this appeal is whether the trial court improperly dismissed the petition on the grounds that it had no jurisdiction to act upon the question of support and education of the child on a petition filed after she reached her majority.
Divorce and custody of children and matters of their support are creatures of statute, and they exist only by reason of legislative action. Jurisdiction of the subject matter is the power of the court to hear and determine the issues involved in the case. The plaintiff contends that the Divorce Act gives authority to the court for the relief sought. We therefore turn to the pertinent portions of the Divorce Act which provides under Chapter 40 § 14 (1963) headed Custody of Children, as follows:
[t]he court may . . . make such order concerning the custody and care of the minor children of the parties during the pendency of the suit . . . and may award the custody of the minor child or children of the marriage . . . and may make such provision for the education and maintenance of the child or children out of the property of either or both of its parents. . . . (Emphasis ours.)
Under § 19 it provides that the court upon granting a divorce, . . . may make such order touching . . . the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. . . .
It is plaintiff's position that the question presented to us has previously been decided favorably to plaintiff and counsel cites Freestate v. Freestate, 244 Ill. App. 166; Strom v. Strom, 13 Ill. App.2d 354, 142 N.E.2d 172 and Maitzen v. Maitzen, 24 Ill. App.2d 32, 163 N.E.2d 840, which he says are controlling here.
In Freestate v. Freestate, 244 Ill. App. 166, the mother was given the care and custody of the minor invalid child, but no provision was made for the support and maintenance of the child. The Appellate Court held that the trial court had jurisdiction in the divorce action to enter an order against the father, ten years after the time the divorce was entered, for the support of his invalid daughter although she was 23 years of age. In Strom v. Strom, 13 Ill. App.2d 354, 142 N.E.2d 172 the trial court had denied the requested provision for the child's education beyond the period of her minority on the ground that it had no jurisdiction. The Appellate Court concluded that, "it is the obligation of a parent of ample means to support a child incapable of self support beyond the period of that child's minority and that this obligation includes the duty to provide not only care and bare necessities, but also a college education where that appears desirable in order to better equip the child for adult life." It is to be noted that the petition requesting an order for a college education was filed in the Strom case for a fifteen-year-old child who was stricken with poliomyelitis. In Maitzen v. Maitzen, 24 Ill. App.2d 32, 163 N.E.2d 840, the Appellate Court upheld an order requiring the father to pay $150 per month for a period of four years for the college education of his seventeen-year-old daughter.
As a general rule, liability of a spouse in a divorce action for support of a child continues during its minority and is terminated by the child's coming of age. ILP Divorce § 218; Rife v. Rife, 272 Ill. App. 404; 162 ALR 1085.
Besides illness or incapacity of a child there appear to be two other situations under which a court will retain jurisdiction to order a divorced father to pay for the support, including the college education of an adult child. The first of these is where the father entered into a written agreement to pay for the college education of his child which was then evidenced by an order of the court or by the divorce decree. The court will then order the divorced father to carry out the terms of his agreement even though the child has reached his or her majority. Robrock v. Robrock, 167 Ohio St. 479, 150 N.E.2d 421; Dunham v. Dunham, 189 Iowa 802, 178 N.W. 551. The theory which evidently underlies this power is that once the divorce court has succeeded in acquiring jurisdiction it can retain such jurisdiction to carry out an agreement between the parties even though the child has attained his or her majority.
The continuing jurisdiction of a court to carry out its own orders issued during the child's minority provides the second exception to the general rule. Thus in Esteb v. Esteb, 138 Wn. 174, 244 P. 264 the trial court was petitioned by the mother for an increase in support payments by the divorced father in order that the minor child could attend college. The court after discussing the benefits to be gained by a college education went on to order the father to pay "$60 per month until she (the minor daughter) became of age, 21 years." The court recognizing that under the great weight of authority it would lose its jurisdiction after the child came of age, thus ordered a fund to be built up during the child's minority. Some courts using this same principle have extended their jurisdiction even further. In Hart v. Hart (Iowa), 30 N.W.2d 748, the trial court was upheld in its modification of a support decree for the purpose of allowing the parties' minor sons to attend four years of college. In that case, as in Maitzen, the court acquired its jurisdictional basis at a time when the child or children were still minors.
In the case at bar, however, the petition in question was not filed in the divorce proceedings until after the girl attained her majority. Lynn Crane, the child involved in this case, is a healthy young lady, and in addition there is no allegation in the plaintiff's petition that the father had made any formal agreement of record to pay for his daughter's college education. In the absence of the factors of minority, accord or disability we are ...