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In Re Marriage of Sreenan

OPINION FILED MARCH 14, 1980.

IN RE MARRIAGE OF PATRICK H. SREENAN, PETITIONER AND COUNTERRESPONDENT-APPELLANT, AND BARBARA M. SREENAN, RESPONDENT AND COUNTERPETITIONER-APPELLEE.


APPEAL from the Circuit Court of Ogle County; the Hon. F. LAWRENCE LENZ, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Appellant, Patrick H. Sreenan (husband), appeals from a post-divorce decree entered by the Circuit Court of Ogle County ordering him to pay a portion of the college education expenses of two of his children.

Patrick and Barbara Sreenan (wife) were married on June 20, 1953. There were nine children born during the marriage. On April 1, 1970, the parties were divorced. A property settlement agreement, incorporated into the divorce decree, provided that the husband, to the extent he was financially able, would contribute to the post-high school educations of all of his children and "have a voice in the selection of the schools and curriculum for such children."

On May 23, 1977, the wife petitioned for payment of the forthcoming educational expenses for two of the children, Melaney and Charene. The husband filed a motion to dismiss on the ground that the wife's pleadings were unverified. In addition, the husband answered and counterclaimed for a reduction of support and alimony and sought a contempt order against the wife for the failure to return certain items of personal property.

The pleadings and interrogatories disclose the following facts. The husband is an attorney earning approximately $80,000 per year. His assets total approximately $64,000. The wife earns $13,000 per year as a teacher at Florida Southern College. In addition she earns $400 per month in director's fees and $400 per month from a private practice. Her assets equal approximately $46,000. Pursuant to the divorce decree the wife was given custody of the nine children. In 1972, with the court's permission, the wife and children moved to Florida. The husband paid the educational expenses for Charene and Melaney while they pursued schooling in modeling and prelaw. In September 1976 the husband remarried, and communications between him and his wife and children apparently deteriorated. At about the same time, the parties engaged in a custody dispute. That same year, the two daughters changed their major field to sociology, which was opposed by the husband because it was his former wife's college major. Since this time, the husband has refused to pay the college expenses for these two daughters.

On December 14, 1977, a hearing was held at which oral arguments were heard on the petition for educational expenses. No sworn testimony was taken and no formal evidence was given at that hearing. However, it was disclosed that the wife's parents had set up a $40,000 educational trust fund for their 13 grandchildren. At the close of the hearing, the trial court ordered each side to submit financial statements, their own personal W-2 forms, their income tax returns and the W-2 forms for the trust fund. The court stated that it would review the pleadings and the submitted information and would then make a decision on the petition.

On February 24, 1978, the trial court entered an order which held that the reasonable educational expenses for Charene were $3,600.56 and for Melaney were $3,500.31. The court ordered the husband to pay 65 percent of these costs, the wife to pay 23 percent, and each daughter to pay 12 percent. The husband filed a post-trial motion seeking a new trial or vacation or modification of the court's order. The trial court denied this motion and this appeal followed.

Husband raises four contentions on appeal: (1) that the trial court erred in failing to dismiss wife's petition on the basis that the petition was not verified, (2) that the trial court erred in failing to require wife to answer the husband's affirmative defense and counterpetitions, (3) that the trial court erred by failing to hold an evidentiary hearing, and (4) that the trial court erred in requiring husband to contribute to the educational expenses of his children.

Section 35 of the Civil Practice Act provides:

"Any pleading, although not required to be sworn to, may be verified by the oath of the party filing it or of any other person or persons having knowledge of the facts pleaded. * * * If any pleading is so verified, every subsequent pleading must also be verified, unless verification is excused by the court. * * *" (Ill. Rev. Stat. 1977, ch. 110, par. 35(1).)

Under the new Marriage and Dissolution of Marriage Act, petitions for dissolution of marriage are required to be verified. (Ill. Rev. Stat. 1977, ch. 40, par. 403.) However, there is no corresponding requirement that post-decree petitions be verified. Ill. Rev. Stat. 1977, ch. 40, par. 511.

• 1 Wife's post-decree petition for educational expenses was not verified. If this petition is considered the first pleading in a new proceeding then there would be no verification requirement. Apparently husband is arguing that the educational expense petition was a pleading subsequent to the earlier pleadings which resulted in the divorce decree. Even if we were to accept this argument, husband has failed to provide any record of earlier verified pleadings. Under the prior divorce act, there was no requirement that the initial pleading be verified. (Ill. Rev. Stat. 1975, ch. 40, par. 7a.) Thus, without the inclusion of prior pleadings in the record, we are unable to determine if any earlier pleading required the wife's petition to be verified. Since the appellant has the burden of presenting the record on appeal to support his theory of the case (Investors Shelter Corp. v. Chernick (1978), 58 Ill. App.3d 446, 374 N.E.2d 786), his failure to include any prior verified pleadings requires us to reject his contention that the wife's petition should have been verified.

• 2-5 Husband's next contention is that the trial court should have required the wife to answer his affirmative defense and counterpetitions. Related to this contention, husband also argues that the court erred in failing to rule on his counterpetitions. With respect to husband's affirmative defense, the general rule is that where a plaintiff fails to reply to new matter contained in a defendant's affirmative defense, the truth of the new matter is deemed to have been admitted. However, such a failure to reply merely amounts to an admission of truth of new factual matter and does not amount to an admission that such new matter constitutes a valid legal defense. (First Federal Savings & Loan Association v. American National Bank & Trust Co. (1968), 100 Ill. App.2d 460, 241 N.E.2d 615.) Also matters which are argumentative do not require a reply. (Korleski v. Needham (1966), 77 Ill. App.2d 328, 222 N.E.2d 334.) Moreover, if a defendant introduces evidence to support his affirmative defense, he is deemed to have waived a reply. (Pree v. Hymbaugh (1959), 23 Ill. App.2d 211, 162 N.E.2d 297.) In the instant case, husband's affirmative defense alleged numerous matters including an inability to pay, a failure to be consulted as to choice of schools and course of study, and the existence of a trust to pay the children's college expenses. We find that in each case defendant's allegations either did not require a reply or a reply was waived when evidence of income was submitted on December 14.

• 6 Husband also filed counterpetitions which attempted to modify the decree with respect to maintenance and to enforce an order for the return of the personal property of Kevin Sreenan. Wife did not answer the allegations in these counterpetitions, but instead first moved to strike certain paragraphs and then moved to dismiss. The trial court never ruled on the husband's counterpetitions or on the wife's motions addressed to them. Instead the court below chose to proceed first with the issue of educational expenses. Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)) provides for the appeal of the final judgment as to less than all claims involved in an action provided that the trial court makes an express written finding that there is no just reason for ...


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