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03/23/89 In Re Marriage of Sally A. Holderrieth

March 23, 1989

IN RE MARRIAGE OF SALLY A. HOLDERRIETH,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Petitioner-Appellee, and RICHARD C. HOLDERRIETH,

Respondent-Appellant

536 N.E.2d 946, 181 Ill. App. 3d 199, 129 Ill. Dec. 896 1989.IL.391

Appeal from the Circuit Court of Cook County; the Hon. Richard B. Berland, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

The circuit court of Cook County entered a judgment dissolving the marriage of petitioner, Sally Holderrieth, now known as Sally Nielsen, and respondent, Richard Holderrieth. Sally and Richard entered into a settlement agreement, which was incorporated into the judgment of dissolution. The agreement provided, inter alia, that Richard would pay the "college and professional education expenses of the children."

Subsequently, Sally and Richard's son, Brian, began attending the Denver Automotive and Diesel College, Inc. Richard refused to pay Brian's tuition and other expenses. Sally petitioned the trial court (1) to enforce the settlement agreement, and (2) to grant her the same post-judgment relief pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 513).

Following a bench trial, the trial court entered an order in favor of Sally, based solely on section 513 of the Marriage Act. Richard appeals, contending that the trial court erred because the school attended by Brian falls within neither the terms of the settlement agreement nor section 513 of the Marriage Act.

We reverse the order of the trial court.

Background

The trial court entered its judgment of dissolution on May 3, 1976. The judgment incorporated the settlement agreement of Sally and Richard. The pertinent provision from their agreement follows:

"L. That [Richard] shall pay for the college and professional education expenses of the children of the parties hereto, including, but not limited to, tuition, books, supplies, registration and other required fees, board, lodging assessments and charges, and round-trip transportation expenses between the college or professional school and the home of the children if they are in attendance at an out-of-town college or professional school; [Richard's] obligation to pay such expenses is based on whether or not the children of the parties have a desire and aptitude for such a college or professional education, and [Richard's] ability to pay such expenses."

On November 6, 1987, Sally filed a "Petition For Rule To Show Cause." She alleged that Brian was attending the Denver Automotive and Diesel College and that Richard refused to pay Brian's expenses. She sought enforcement of paragraph L of the settlement agreement.

In his answer to Sally's petition, Richard alleged that he knew nothing about Brian attending the school. Richard further alleged that, at the time of their dissolution, he and Sally did not intend for him to pay Brian's expenses in attending a school such as the Denver Automotive and Diesel College.

The trial court held a hearing on Sally's petition on March 11, 1988. The record shows that at the outset of the hearing, Sally sought and received leave to file, instanter : (1) an amended petition seeking enforcement of the settlement agreement, and (2) a petition seeking the same post-judgment relief under section 513 of the Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 513). Richard did not object to the amended petition to enforce and the section 513 petition. The trial court allowed Richard's answer to Sally's original petition to stand against her new petitions.

The record is contradictory at this point. As stated earlier, Sally filed a petition for post-judgment relief under section 513 of the Marriage Act. However, during closing argument, she based her claim exclusively on the settlement agreement. She plainly stated that section 513 does not apply to the instant case, because the settlement agreement provided for their children's educational expenses.

The contradictions continue. On March 31, 1988, the trial court entered an order in favor of Sally. Despite her concession on the applicability of section 513 of the Marriage Act, the trial court based its order solely on section 513 of the Marriage Act. The record shows that the trial court did not decide whether the Denver Automotive and Diesel College fell within the terms of ...


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