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09/19/89 James Peacock Gibb Iii, v. Betty Lou Triezenberg

September 19, 1989





544 N.E.2d 444, 188 Ill. App. 3d 695, 135 Ill. Dec. 948 1989.IL.1441

Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.


Plaintiff James Peacock Gibb III appeals from an order of the circuit court of Champaign County entered February 2, 1989, in which it ordered plaintiff to pay certain college expenses of his son Randy James Gibb. On appeal, plaintiff contends the court erred in failing to consider the following factors in determining his share of the contribution toward his son's educational expenses: (1) the relationship between him and his son; (2) his lack of consent to the college selected by his son; and (3) the availability of less expensive public schools. Plaintiff further claims the court's findings as to the latter two contentions and its judgment determining the amount of his obligations are against the manifest weight of the evidence. For the reasons stated in this opinion, we affirm the order of the trial court.

On January 25, 1988, defendant Betty Lou Triezenberg petitioned the court to fix the college expenses for the child of the parties and to modify the previously entered judgment of dissolution. The petition alleged Randy Gibb was then 18 years of age and wanted to attend Washington University in St. Louis, Missouri, in the fall of 1988. The petition further indicated that, subtracting the amount of the grant Randy was to receive, the additional costs of room, board, and tuition at that university would still be $10,328 per year. Further expenses for the son were estimated at $2,864 per year. The petition stated plaintiff had sufficient assets to pay the costs of the son's college education but had expressed an unwillingness to do so. Defendant requested the court to enter an order requiring plaintiff to pay $13,202 per year for Randy's college expenses.

We deem it appropriate to note at this point that, as will be more fully shown later, the petition was inaccurate in that Randy Gibb had started attending Washington University in the fall of 1987. Plaintiff raises no issue as to any variance between pleading and proof. The variance could have been corrected by amendment. Obviously, the experienced counsel involved did not consider the matter significant.

Plaintiff raised several "affirmative defenses" in response to defendant's petition. He claimed he and his son had no relationship, and he should have no obligation to pay for the college expenses of a son with whom he had had no contact. Second, he contended neither the son nor defendant consulted with him regarding the choice of college, and he was not given the opportunity to approve of his son's selection. Finally, he indicated Washington University, a school which plaintiff took no part in choosing, was an expensive private school, and his son could have easily been accepted to any public institution in Illinois. As a result, plaintiff claimed he should either have no obligation to pay for the schooling or, in the alternative, his obligation should be based upon the costs of attending a public institution. Defendant moved to strike those "affirmative defenses."

At the time set for hearing on defendant's petition but before hearing evidence, the court heard arguments and ruled on defendant's motion to strike plaintiff's affirmative defenses. The court indicated the lack of consent and the selection of a private school were both valid items for the court to consider. Thus, it denied defendant's motion as to those defenses. However, it granted the motion as it pertained to the lack of relationship between the plaintiff and his son. At a subsequent point in the proceedings, the court stated it did not think the status of the relationship was relevant to the issues before it. It denied any offers of proof made by plaintiff's attorney relating to that defense.

The evidence at the hearing on defendant's petition held December 22, 1988, revealed the parties divorced in 1977. At that time, plaintiff worked for the Illinois State Water Survey at a salary of $20,000; defendant was employed as a teacher and made $5,000. Plaintiff described their standard of living at that time as "comfortable" or "modest." Defendant said Randy was then seven years old and had a good relationship with his father. She stated plaintiff indicated in 1977 he would take care of his son's educational expenses.

Plaintiff testified that, in the summer of 1985, he and Randy discussed possible schools he might attend. Plaintiff admitted he told Randy to look at Washington University, among others, because of the financial aid available there. He also suggested the University of Michigan as well as the University of Illinois. Randy corroborated this testimony and further stated his father had strongly recommended he not attend the University of Illinois since it was so close to home.

Starting in October 1986, plaintiff wrote several letters to defendant concerning Randy's college selection process. Plaintiff suggested his son obtain counseling on the subject and apply to State schools in addition to the competitive, expensive schools to which he had applied. He informed defendant he "expect[ed] to be an integral part of Randy's future plans."

In November 1986, both Randy and his mother wrote plaintiff and told him they had previewed Washington University and that Randy was very much interested in attending school there. They also told him he had been accepted at both University of Michigan and University of Illinois. Plaintiff stated this was ...

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