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07/18/89 In Re Marriage of Judith L. Potts

July 18, 1989

IN RE MARRIAGE OF JUDITH L. POTTS, F/K/A JUDITH L. LOHMAN,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Petitioner-Appellee, and NORRIS P. LOHMAN,

Respondent-Appellant

542 N.E.2d 179, 186 Ill. App. 3d 273, 134 Ill. Dec. 179 1989.IL.1112

Appeal from the Circuit Court of Will County; the Hon. John F. Cirricione, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. BARRY and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

The respondent father, Norris P. Lohman, filed a petition for a rule to show cause, alleging that the petitioner mother, Judith L. Potts, had failed to pay one-half of their children's educational expenses as provided by a September 16, 1983, court order. After a hearing on the merits, the trial court denied Norris' petition, holding that his claim was barred by principles of res judicata and estoppel. He appeals.

The record reveals that the parties' marriage was dissolved on July 8, 1976. Custody of the couple's three minor children, Rick, Steve, and Chris, was awarded to Judith. Pursuant to a property settlement agreement made part of the judgment for dissolution, Norris was ordered to pay $400 a month in child support. On September 16, 1983, pursuant to Judith's petition to modify the dissolution decree, an agreed order was entered by the court. The portion of the order relevant to this appeal provided that the parties would share equally in the college expenses of their children.

The record shows that around the time of the September 16, 1983, order, Rick began his college education. He eventually spent two years at Joliet Junior College and two years at Illinois State University, where he completed his senior year in May of 1987. During those four years, Rick spent $5,724.76 on tuition, fees, and books. Norris gave Rick checks amounting to $6,556.59 for those expenses. Judith's contribution to Rick's educational expenses consisted of paying $70 he owed for a parking ticket, and following graduation, giving him $2,500.

In September of 1985, Steve, the parties' second child, began attending the University of Illinois. For the 1985-1986 school year, he received grants and scholarships which covered his educational expenses. However, for the 1986-1987 school year he received no scholarship money and as a result incurred educational expenses of $2,128.40. Norris gave him a check for $2,650 to cover those expenses. During the summer of 1986, Steve attended Joliet Junior College and Judith gave him $105 to cover that tuition.

In November of 1986, Norris wrote Judith a letter reminding her of the 1983 agreement and her duty to pay half of the children's educational expenses. On November 19, 1986, Judith filed a petition to modify the judgment of dissolution by increasing the amount of Norris' monthly child support obligation to 20% of his net income. On July 29, 1987, an agreed order was entered whereby Norris agreed to pay a greater amount of monthly child support for Chris, the only child still living with Judith. The order further provided that Judith would pay one-third of Steve's and Chris' educational expenses, while Norris would pay the balance. The order did not mention college expenses for Rick, who had graduated about two months earlier.

In November of 1987, Norris wrote a letter to Judith informing her that she still owed one-half of Rick's and Steve's educational expenses for the period from the 1983 order until the 1987 order. After waiting a few months, Norris filed a petition for the issuance of a rule to show cause why Judith should not be held in contempt of court for failing to comply with the court's September 16, 1983, order. Judith filed a response to the petition, alleging that the matter of unpaid educational expenses had been resolved by the 1987 order and that Norris' petition should be dismissed since the 1987 order made no mention of her arrearage in educational expenses. Following a hearing on the matter, the trial court dismissed Norris' petition, finding that the doctrines of res judicata and estoppel barred his claim. Norris then filed a motion to reconsider. After hearing arguments on the motion, the trial court denied it.

Initially, we note that Judith has not filed an appellee's brief. This will not preclude our consideration of the merits of this case, since the record is complete and the issues are straightforward. First Capitol Mortgage Corp. v. ...


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