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In Re Marriage of Gardner

OPINION FILED JUNE 20, 1980.

IN RE MARRIAGE OF PATRICIA A. GARDNER, PETITIONER-APPELLANT, AND JACK R. GARDNER, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. WILLARD J. LASSERS, Judge, presiding. MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Petitioner appeals the order of the trial court directing respondent to pay $1500 for the first-year college expenses of their 18-year-old son and denying maintenance and attorney's fees. She contends that the issuance of the order constituted an abuse of discretion. We affirm the court's order with respect to college expenses and maintenance but reverse and remand on the question of attorney's fees.

The parties were divorced in 1964, and the decree of divorce expressly reserved the question of child support. Between 1964 and 1973, respondent did not contact his son and did not pay any child support or contribute anything else for his support. Petitioner testified that although she made attempts to contact respondent during this period, she was unsuccessful and, as a result, could not reach any agreement on child support. In 1965, petitioner remarried and in 1968, respondent remarried.

In 1973, the parties met at a tollway restaurant in Warren, Ohio. Petitioner testified that the meeting was accidental, but respondent testified that the meeting was in response to telephone conversations which had been initiated by petitioner. The parties talked about their son at the meeting. Respondent testified that petitioner told him that their son did not know that he existed, their son thought that her second husband was his father, and she wanted her second husband to adopt the boy. Respondent said that petitioner asked him if he would consent to the adoption and that he replied that he would think about it. Petitioner denied that she had spoken to respondent about any of these matters. In either event, the parties remained in touch with each other after this meeting. In 1975, petitioner met respondent and his wife at O'Hare airport and there, according to respondent's testimony, once again discussed the adoption. The parties stipulated that if respondent's wife were called to testify, she would confirm that this discussion had occurred. Petitioner, however, denied any such discussion.

In 1976, petitioner located respondent's residence and thereafter filed a petition for child support. On May 28, 1977, the trial court entered an order awarding petitioner $9,500 for retroactive child support covering the period of the date of the judgment of divorce until May 27, 1977, $50 per week child support until the child was 18 years of age or otherwise emancipated, and $750 in attorney's fees.

On July 20, 1979, petitioner filed a petition seeking to compel respondent to pay for the education and maintenance of their child, who was then 18 years of age, and for attorney's fees. After a hearing, the trial court directed the respondent to pay $1500 towards the child's first-year educational expenses, denied the request for maintenance, and summarily denied the request for attorney's fees.

OPINION

Petitioner contends that the trial court abused its discretion in ordering respondent to pay only $1,500 towards their son's first-year college expenses and in denying maintenance. She claims that the abuse of discretion occurred when the court considered certain irrelevant matter, including the theory that petitioner's present husband had made a "de facto" adoption of the boy, before denying maintenance and ordering payment for educational expenses in an amount which was grossly disproportionate to both respondent's ability to pay and petitioner's inability to pay.

• 1 Section 513 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 513) provides, in pertinent part, that:

"The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:

(a) The financial resources of both parents.

(b) The standard of living the child would have enjoyed had the marriage not been dissolved.

(c) The financial resources of the child." (Emphasis added.)

This provision by its terms makes the award of money for the maintenance and/or education expenses of an 18-year-old child discretionary with the trial court. (See Singer v. Singer (1979), 70 Ill. App.3d 472, 388 N.E.2d 1051.) An abuse of discretion in not awarding money for maintenance and educational expenses will not be found unless the record demonstrates that "the financial resources of both parents, the standard of living during the marriage and the financial resources of the child were such as to require a party to provide for the education [and maintenance] of his nonminor children." Westerberg v. Stephens (1979), 76 Ill. App.3d 119, 123, 394 N.E.2d 875, 878. See also Singer v. Singer.

• 2 Our review of the hearing which was conducted on the petition and the court's comments regarding the evidence adduced at the hearing leads us to the conclusion that the court did not abuse its discretion in awarding only $1500 for first-year educational expenses and nothing for maintenance expenses. Evidence adduced at the hearing indicated that the one-year cost of college for the parties' son was anywhere from $3,200 to $3,900. Though the evidence indicated that respondent had made over $16,000 for the first half of 1979, it did not establish that he had any disposable income to contribute towards his son's education. In fact, respondent, who had one natural child and one adopted child with his second wife, testified that he had nothing left from his paycheck after supporting his second family. This testimony was not rebutted at the hearing. (See Singer v. Singer.) He further testified that he and his second wife, who was employed, owed $33,000 on a mortgage for their home and that he had no savings or checking accounts. The evidence indicated that in 1978 petitioner made approximately $6200 from a company which she owned. Petitioner, who had no children by her second husband, testified that she was unable to pay for any of her son's college expenses. She further stated that she and her second husband, who was also employed, owed $58,000 on a first mortgage and $10,000 on a second mortgage of their home. The parties' son, who graduated in the upper third of his high school class, testified that he could not file his college application until he obtained the tuition money. He stated that he had worked two or ...


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