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03/19/87 In Re Estate of Carl A. Champagne

March 19, 1987

IN RE ESTATE OF CARL A. CHAMPAGNE, DECEASED (MARY ANN


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

DeFrancesca, Claimant-Appellant v.

The Estate of Carl A. Champagne, Respondent-Appellee)

505 N.E.2d 1352, 153 Ill. App. 3d 560, 106 Ill. Dec. 561 1987.IL.342

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

Justice Reinhard delivered the opinion of the court. Dunn and Inglis, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Claimant, Mary Ann DeFrancesca, the former wife of decedent, Carl A. Champagne, brings this interlocutory appeal pursuant to Supreme Court Rule 304(b)(1) (103 Ill. 2d R. 304(b)(1)) from the trial court's order striking and dismissing her claim against the estate of Carl A. Champagne. The issue raised on appeal is whether claimant has a valid claim against the decedent's estate for college educational expenses of their son, Tony Champagne, a child over age 18.

Carl A. Champagne died October 16, 1985. His will provided that his entire estate was to be given to his present wife, Ellen L. Champagne, who was also named executrix. Claimant filed a claim against the estate on February 20, 1986, claiming $2, 000 for payments due under a stipulation and agreed order entered July 12, 1983, for the college expenses of their son Tony and for such additional amounts which may become payable under the order. Attached to the claim was a statement by the claimant that a judgment for divorce of the marriage of claimant and decedent was entered on July 1, 1966, which provided that decedent would pay for the college education of their son, that a July 12, 1983, stipulation and agreed order provided that decedent would pay $400 per month, commencing June 1983, for Tony's college education, that the monthly payments since October 1985 are due and owing as well as additional future payments which will become due, and that their son, Tony Champagne, continues to attend college on a full-time basis. The July 2, 1983, agreed order of the circuit court of Cook County was also attached to the claim, and stated that the parties had reached an agreement settling all matters in controversy contained in claimant's amended petition for college expense award filed March 15, 1983. It provided, in pertinent part, "That CARL A. CHAMPAGNE shall pay and MARY ANN DeFRANCESCA shall accept the sum of $400.00 per month commencing June, 1983 and payable each month thereafter until Tony Champagne completes his college education, provided he attends on a full-time basis."

The order also acknowledged that decedent had already contributed $7,100 toward Tony's educational expenses and ordered that he pay an additional $5,500 for a settlement and compromise on Tony's college education expenses incurred during the first four semesters of his college education.

The estate filed a motion to strike the claim, stating that the monthly payments were made until decedent's death on October 16, 1985, and that there is no provision under section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 513) which allows for higher education expenses to be charged against an estate. The trial court ordered that the claim be stricken and dismissed, finding that the order for educational expenses of the adult child did not obligate decedent's estate.

On appeal, claimant advances several contentions to reverse the trial court's decision. She argues that the obligation to pay claimant $400 a month for Tony's educational expenses is a contract obligation of decedent which is an allowable claim against his estate, that claimant's action is one that survives decedent's death under the Survival Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 27-6), and that the agreement for educational expenses survives the death of the payor spouse under section 513 of the Act. As the original agreed order for educational expenses was pursuant to section 513 of the Act, sections 510(c) and 513 of the Act (Ill. Rev. Stat. 1985, ch. 40, pars. 510(c), 513), when read together, are dispositive of this issue, and claimant's first two contentions need not be addressed.

Section 510(c) provides:

"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. When a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment, to the extent just and appropriate in the circumstances, and such determination may be ...


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