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In Re Marriage of Moriarty

OPINION FILED MAY 2, 1985.

IN RE MARRIAGE OF JULIE A. MORIARTY, PETITIONER-APPELLEE, AND ROBERT

v.

MORIARTY, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Monica Reynolds, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Respondent appeals from a judgment of the circuit court of Cook County ordering him to pay the parochial high school tuition for two of his children and to pay attorney fees. Respondent contends that the trial court erred in rendering its judgment because (1) petitioner did not consult with him on the choice of high schools, and (2) he cannot afford to pay either the tuition or the attorney fees.

We affirm, as modified by this opinion.

The circuit court granted petitioner, Julie Moriarty (Julie), a judgment of divorce from respondent, Robert V. Moriarty (Robert), on October 22, 1975. The court granted Julie custody of their three children, Bob, Bridget, and Sean; Julie voluntarily transferred custody of Bob, who possesses behavior and learning disorders requiring special treatment, to Robert on or about January 22, 1982. The court originally ordered Robert to pay Julie $200 per month per child as child support, but, in answer to a petition by Julie, increased that amount to $335 per month per child. Robert appealed the order that increased the child support, and we affirmed in an unpublished opinion filed pursuant to Illinois Supreme Court Rule 23 (87 Ill.2d R. 23).

In February 1982, Julie petitioned the circuit court to enforce certain provisions of the divorce judgment that covered the children's education. She sought a judgment ordering Robert to pay the tuition for a parochial high school that the children were going to attend. Bridget enrolled in the school in September 1982 and Sean enrolled in the same school in September 1983. The court held a hearing where Robert argued that he should not be ordered to pay the tuition because Julie did not consult with him in choosing a high school and because he could not afford to pay it. In December 1983, the court granted Julie's petition and ordered Robert to pay the tuition accrued since September 1983. At the conclusion of separate proceedings, the court also ordered Robert to pay Julie's attorney fees totaling $6,204.90. Robert appeals.

I. HIGH SCHOOL TUITION

A. CONSULTATION

• 1, 2 Robert contends that the trial court erred in ordering him to pay the tuition for Bridget and Sean because Julie did not consult with him in the selection of a high school.

The divorce judgment of Robert and Julie incorporated a settlement agreement that provided for, inter alia, the education of the children. The applicable provisions follow.

"ARTICLE IV

Education of the Children

3. ROBERT shall pay for the tuition and other expenses of the children if any of them desire to attend a parochial day school at any time during grades one through twelve, providing ROBERT has the reasonable financial ability to pay for said expenses.

4. The decisions affecting the education of the children, including the choice of parochial school, trade school, college and professional school shall be made jointly by the parties and shall consider the expressed preference of the child, provided, however, that neither party shall unreasonably withhold his or her consent to the expressed preference of the child.

5. In the event the parties cannot agree upon the school to be attended or in respect to any of the foregoing, a Court of competent jurisdiction shall make the determination upon ...


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