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03/17/95 MARRIAGE NANCY L. DIETER N/K/A NANCY L.

March 17, 1995

IN RE MARRIAGE OF NANCY L. DIETER, N/K/A NANCY L. WILLIAMS, PETITIONER-APPELLEE, AND ROLAND A. DIETER, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County. The Honorable Shelvin Hall, Judge Presiding.

Released for Publication April 13, 1995. As Corrected April 28, 1995.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Respondent, Roland A. Dieter, appeals from two orders of the trial court: (1) an order of December 10, 1991, which (a) entered a judgment in favor of petitioner, Nancy L. Williams, in the amount of $12,196.95 for past-due colleges expenses for the parties' child, David; and (b) required respondent to pay all of David's education costs, including fees for flight instruction associated with the attendance of David at the University of North Dakota; and (2) an order of October 2, 1992, which (a) required respondent to contribute $5,064.95 to petitioner's attorney fees; and (b) denied respondent's petition for attorney fees. Petitioner cross-appeals from the trial court's order of December 10, 1991. On appeal, respondent contends that the trial court erred in: (1) determining that flight costs are required fees for a "college education" as that term is contemplated by the parties in the marital settlement agreement; (2) declining to take into consideration the other resources of David in assessing respondent's obligation to pay for flight costs; (3) determining that respondent was required to pay up to $16,000 per year for future college education expenses; and (4) holding respondent in contempt and granting petitioner an award of attorney fees. Petitioner, in her cross-appeal, contends that the trial court, in determining the amount of respondent's obligation for the David's education expenses, erred in considering other resources of David and petitioner.

We affirm.

BACKGROUND

Petitioner and respondent were married on April 2, 1964, in Pittsburgh, Pennsylvania. On June 1, 1971, the parties' only child, their son David, was born to the parties. No other children were born to or adopted by the parties.

On January 7, 1975, petitioner filed a complaint for divorce, and, pursuant to the proceedings in the case, a judgment for divorce was entered on February 24, 1975. The judgment for divorce incorporated a marital settlement agreement between the parties which provides, in pertinent part, as follows:

"14. ROLAND shall pay for the college school education of DAVID. By 'college' school education of DAVID' [sic ] there is meant and included, but not by way of limitation, tuition, books, supplies, registration and other required fees, board, lodging, sorority or fraternity dues, assessments and charges, and round trip transportation expenses between the college and the home of the child (if the child is in attendance at an out-of-town college), those round trips not to exceed four in any calendar year.

Further ROLAND'S obligation is conditioned upon the following:

a. David has at that time the desire and aptitude for a college education.

b. The college education is limited to a [sic ] four consecutive years after graduation from high school, except the time shall be extended in the case of serious illness or military service.

c. ROLAND'S [sic ] has the financial ability to pay such college expenses.

The decision affecting the education of DAVID regarding college shall be made jointly by the parties and shall consider the expressed preference of the child, but neither party shall unreasonably withhold his or her consent to the expressed preference of the child."

On October 10, 1990, petitioner filed a petition requesting the trial court to enter an order requiring respondent to show cause, if any, as to why he should not be held in contempt of court. In the petition, petitioner asserted that: (1) pursuant to the marital settlement agreement, respondent was required to pay for the education expenses of David until David attained his majority or completed his college education, whichever was the last to occur; (2) David was then enrolled in college and for the fall semester of 1990, David incurred education expenses totalling $7,656.87; (3) respondent had reimbursed David and petitioner in the amount of $3,953 toward those expenses; (4) although often requested to pay for the rest of the education expenses, respondent both failed and refused to pay for such expenses; (5) respondent had failed to pay plaintiff for child support since June 1989; (6) there was $4,200 due to petitioner for child support through October 1990; and (7) petitioner is entitled to reasonable attorney fees and costs in connection incurred in pursuance of the petition.

On March 6, 1991, petitioner also filed a petition seeking a rule to show cause as to why respondent should not be held in contempt of court for failing and refusing to pay for the education expenses of David, who had been enrolled in the University of North Dakota since ...


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