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In Re Marriage of Milburn

OPINION FILED MAY 28, 1986.

IN RE MARRIAGE OF MELANONY E. MILBURN, PLAINTIFF-APPELLEE, AND RICKY W. MILBURN, DEFENDANT-APPELLANT.


Appeal from the Circuit Court of Madison County; the Hon. George Filcoff, Judge, presiding.

PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Respondent, Ricky W. Milburn, has perfected this appeal from a judgment of the circuit court of Madison County which (1) denied his petition to modify child support and (2) granted petitioner's, Melanony Milburn's, petition to modify the dissolution decree as to the payment of all college expenses for the parties' two children. The facts are as follow.

On May 22, 1981, a judgment for dissolution of marriage was entered. This judgment provided in pertinent part that the respondent was to pay child support for the minor children of the parties in the sum of $1,000 each month, "said $1,000.00 support payments to continue until the younger of the two minor children reaches majority, or, if said younger child pursues a post high school course of study, until said younger child completes said course of study; and further, petitioner and respondent shall share equally all post high school tuition and book expenses of each of said children."

On March 19, 1984, respondent filed a petition to modify the judgment in which he requested that his child support obligation be reduced from $1,000 to $500 per month because (1) one of the children now resides with and is supported by the respondent, (2) the petitioner's earnings have increased, and (3) the respondent's earnings have decreased. On April 5, 1984, the petitioner filed a counterpetition which requested in pertinent part that respondent be required to pay for one-half of all college expenses incurred by the children of the parties.

On April 25, 1984, a hearing was held on the petition and counter-petition. At this hearing it was established that Richard, the parties' 18-year-old son, who previously had resided with petitioner, had taken up residence with respondent in February 1984. At the time of the hearing, respondent was paying most of Richard's living expenses, and the remainder of Richard's living expenses were paid by Richard from the income he earned from a part-time job. Although Richard was not attending college at the time of the hearing, it was alleged that he intended to do so in the fall of 1984 and that he anticipated residing with respondent while attending college. Twelve-year-old daughter Lisa remained in petitioner's custody; and petitioner testified that the cost of raising Lisa had increased due to inflation and the costs attendant to a child's growing older.

Petitioner further testified that during 1980, the year prior to the divorce, she earned $1,650 and in 1981 she earned $2,981.10. According to petitioner, she began doing bookkeeping on a contract basis for Industrial Management Company in 1982. This position provided petitioner with a salary and a 1982 Buick Riviera which petitioner used in performing her employment duties. In 1982, petitioner earned $10,291.71; and in 1983, she earned $19,791.75. Petitioner testified that her income for 1984 would be roughly equivalent to her income for 1983.

Respondent testified that in 1981 he earned $73,212. The respondent's employer was declared bankrupt in 1982, and he then took a similar position with Joliet Avionics in West Chicago. In 1982, respondent earned $44,077 and in 1983 he earned $57,850. During the first quarter of 1984, respondent earned $20,114.89. Respondent stated that although his first quarter earnings would exceed his 1983 earnings if duplicated in each of the three following quarters, he did not expect to match his first quarter earnings in the following quarters. Respondent believed that his 1984 earnings would be roughly equivalent to his 1983 earnings.

The petitioner testified that the parties' son, Richard, attended college during the fall of 1983 and spring of 1984. Petitioner stated that respondent refused to pay for Richard's room and board while Richard was attending college during the fall of 1983 on the grounds that he was not required to do so by the dissolution decree. Moreover, although respondent did pay for one-half of Richard's tuition and books for the fall of 1983, petitioner claimed that respondent paid nothing toward Richard's college attendance for the spring of 1984. Petitioner asserted that respondent's refusal to pay for one-half of Richard's room and board coupled with respondent's failure to pay for any of Richard's expenses during the spring of 1984 resulted in petitioner's spending $2,400 in excess of what respondent paid for Richard's college attendance.

On October 22, 1984, the circuit court entered an order which: (1) denied respondent's petition to modify child support, and (2) granted petitioner's petition to modify the dissolution decree so as to require respondent in the future to pay, in addition to one-half of the college tuition and books, one-half of all college expenses "of the minor child attending college," including books, tuition, room, board, transportation, and other expenses related to college. The respondent appeals both aspects of this judgment.

• 1 Section 510 of the Illinois Marriage and Dissolution of Marriage Act provides in pertinent part:

"Modification and Termination of Provisions for Maintenance, Support and Property Disposition. (a) Except as otherwise provided in paragraph (f) of Section 502, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances. * * *

(c) Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein, but not by the death of a parent obligated to support the child. * * *" (Ill. Rev. Stat. 1983, ch. 40, pars. 510(a), (c).)

Thus, section 510(a) expressly provides that the paramount consideration of the court in determining whether to modify a child support provision is whether a substantial change in circumstances has occurred since the original support allowance was made. Factors to be considered in determining whether there has been a substantial change in circumstances include: (1) the financial resources of the children, (2) the financial resources and needs of the custodial parent, (3) the standard of living the children would have enjoyed had the marriage not been dissolved, (4) the physical, emotional, and educational needs of the children, and (5) the financial resources and needs of the non-custodial parent or parents. (Ill. Rev. Stat. 1983, ch. 40, par. 505(a); In re Marriage of Daniels (1983), 115 Ill. App.3d 173, 176, 450 N.E.2d 361, 362-63.) Furthermore, the trial court's findings as to the modification of child support will not be disturbed absent a clear abuse of discretion. 115 Ill. App.3d 173, 176, 450 N.E.2d 361, 362-63.

• 2-4 Section 510(c) provides that the support of a child is terminated upon the emancipation of the child unless otherwise agreed in writing or specified in the judgment. Although Richard, who was living with respondent at the time of the hearing, was of legal age and was then emancipated under the law (see In re Marriage of Donahoe (1983), 114 Ill. App.3d 470, 474-75, 448 N.E.2d 1030, 1033), the original judgment indicates that both parties intended that Richard would receive support if he ...


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