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Greiman v. Friedman

OPINION FILED NOVEMBER 21, 1980.

CARYN GREIMAN, A/K/A CARYN FRIEDMAN, PETITIONER-APPELLEE,

v.

EDWARD FRIEDMAN, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN DONALD O'SHEA, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Defendant, Edward Friedman, appeals from the trial court's order granting his former wife's post-decree motion to require his continued payment of college expenses for their three adult daughters. He had voluntarily paid these expenses in full until the spring 1979 school term, at which time he ceased payments and this action was initiated. On appeal, defendant contends that, under the provisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1979, ch. 40): (1) he has no duty to provide a college education for his two adult daughters who have poor academic records; (2) he has no duty to pay the private college expenses for the third daughter whose application was accepted at the State's university; (3) the trial court abused its discretion by failing to consider the financial obligations of his second family; and (4) the trial court abused its discretion by ordering him to pay a substantial portion of petitioner's attorney's fees. For the reasons discussed below, we reverse the judgment and remand the cause for a new hearing on the issue of the parties' financial resources. The pertinent facts follow.

Plaintiff, Caryn Greiman, and defendant were divorced over a decade ago. They have three daughters by that marriage; Lori, Jodi, and Tami, who remained in their mother's custody after the divorce. Both parents remarried. The children from a former marriage of plaintiff's husband live with them. Defendant and his second wife have two young children.

At the time plaintiff initiated the post-decree action all three daughters were attending college. Both parents testified as to their income and assets, and all three daughters also testified. At the hearing, the following evidence was adduced.

Lori, the oldest, was 21 years old at the time of the 1979 proceedings. During the preceding four years she had attended Northern Illinois University. Her father had paid her college tuition and expenses, an estimated $3,500 per year. During those four years she failed one course, withdrew from another, and took fewer credit hours than is generally necessary to complete schooling in four years. Lori testified that she had a "B" average but that she had not received her degree after eight semesters. She also stated that she had a savings account and earnings from a summer job but did not contribute to her college expenses, as her father had not asked her to do so.

Jodi, age 20 at the time of the hearing, had attended Northern Illinois University for two years. She was a semester behind, having taken 11-12 credit hours per semester rather than the average 15-16 hours. At the end of two years she had failed art and math courses, accumulated 15 hours of "D" grades, and had withdrawn from a course. At the time of the hearing she had applied to transfer to Southern Illinois University because she "was bored" and "didn't like Northern [because] it was too cold." Like Lori, Jodi had saved some money but did not contribute to her college expenses, nor was she asked to do so.

Tami, age 18 at the time of the hearing, had attended Washington University in St. Louis, a private school, for one year. She has a congenital physical condition that severely affects her vision and her ability to walk long distances. Her father voluntarily paid for her first year and tendered $2400 for her fall 1979 semester. Total expenses per semester were estimated at $4188. By maintaining high grades, Tami had received a scholarship during her freshman year, which reduced tuition cost from $2400 to $1700. However, she did not reapply for the scholarship the following year. Tami testified that she had savings and checking accounts, and planned to work during school. Tami also testified that she had applied to the University of Illinois in addition to Washington University; that her father had indicated to her that she was a sensitive person who merited "special" college education and that he was willing to pay for it; and that going to Washington University was "the best thing [she had] ever done in [her] life."

The trial court also received testimony and documents relevant to the parties' income and assets. The court's findings, based on the parties' 1978 Federal income tax returns, show defendant's total income to be $52,046 and his adjusted gross to be $47,106. Plaintiff, a school teacher, had 1978 income of $17,203.55. The trial court further took note of defendant's other assets and listed them as: (1) $50,000 home equity (new wife contributing $30,000); (2) $20,000 in savings account; (3) $5,000 in an individual retirement account; and (4) one-third interest in the business that pays his salary. Plaintiff's individual assets include part interest in her home, a $1,000 certificate of deposit, and $2,000 in a joint checking account with her new husband.

After hearing the evidence, the trial court ordered respondent to pay certain amounts of money for the three girls' remaining college expenses. The court calculated that defendant's income was 75% of the total of his and plaintiff's combined income. With this in mind, the court considered each daughter's needs and rights separately. For Lori's ninth semester of college, she needed $1750. Because of her failure to graduate in the usual eight semesters, the court ordered Lori to pay one-half the total costs for the extra semester. The balance was to be paid by Lori's parents under the 75/25% ratio. Thus, defendant was held liable for 75% of one-half of the total ($657), and plaintiff was to pay 25% of one-half the total ($218). In addition, defendant was ordered to pay his former wife $180 as partial reimbursement for money she had advanced for Lori's previous semester. These payments were deemed full satisfaction of any further liability toward Lori's education.

For Jodi, the daughter with the poorest academic record, defendant was ordered to pay 75% of her total estimated expenses of $1900 per semester, up to eight semesters. The trial court conditioned defendant's payments upon the requirement that Jodi maintain at least a "C" average. If her grades dropped below this level, defendant's liability for Jodi's college expenses would abate according to a certain ratio.

In considering Tami's needs, the trial court stated that defendant must pay her full tuition and board of $3500 per semester for her remaining 6 semesters. In reaching this decision the court looked beyond defendant's income to his business assets, stating that the evidence indicated that defendant had originally contemplated paying for Tami's tuition and board. *fn1

OPINION

Defendant's major argument is that he should not be required to continue financing the college education of his daughters. The ultimate, factual determination of this matter rests with the trial court, upon consideration of all relevant circumstances under section 513 of IMDMA, which provides, in pertinent part:

"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 ...


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