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September 11, 1997


Appeal from Circuit Court of Sangamon County. No. 86D289. Honorable Diane L. Brunton, Judge Presiding.

Released for Publication October 14, 1997.

Honorable James A. Knecht, J., Honorable Rita B. Garman, J. - Concur, Honorable Frederick S. Green, J. - Concur. Justice Knecht delivered the opinion of the court. Garman and Green, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Petitioner, Elizabeth Miller, filed a petition to enforce a provision of the settlement agreement incorporated into the judgment for dissolution between herself and respondent, Richard Schmidt, Jr., which required respondent to pay one-half of their daughter's educational expenses incurred for college. The trial court entered an award formuch less than one-half of the college expenses for the private school in Ohio chosen by the daughter. Petitioner appeals, contending the trial court did not enforce the judgment as entered but modified it to include a requirement the college costs be reasonable and, in so doing, improperly based its decision on factors under section 513(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/513(b) (West 1996)). We affirm.

A judgment of dissolution was entered between the parties on December 30, 1986. The judgment included the following provision regarding educational expenses for college:

"IT IS FURTHER ADJUDGED that in the event that the minor children of the parties shall evidence the aptitude and desire for a college education, Respondent shall contribute one-half of such educational expenses."

On March 15, 1996, Elizabeth filed a petition to establish educational expenses pursuant to settlement agreement. On June 5, 1996, Richard filed his answer to the petition and admitted the parties' daughter, Emily Ann Schmidt, had been accepted to the University of Dayton and she planned to attend that school beginning August 28, 1996.

At the hearing on the petition, held June 5, 1996, Elizabeth testified Emily had been accepted to the University of Dayton (University) and wanted to go to school there and presented as an exhibit the letter of acceptance. She testified to the costs for attending the University for one year, which were broken down into counseling fee, orientation fee, tuition, university residence fee and meal service, with the total coming to slightly less than $17,345. Elizabeth also presented an exhibit consisting of an itemization of the costs provided to her by the University. The costs would be defrayed by a $1,500 scholarship if Emily maintained a "B" average and became involved in school activities.

Elizabeth further testified to approximate costs for books and other school supplies of between $200 and $350 for books and $100 for other supplies. Additional expenses included a college application fee ($20), registration fee ($200), charges for the American College Test and the Scholastic Aptitude Test ($488), and automobile insurance costs of $905 per year.

Elizabeth stated Emily applied for financial aid through FASFA (not explained in the record) and her application was denied. Elizabeth admitted the University is a private school, she and respondent had never agreed about splitting tuition at a particular school and the dissolution judgment did not refer to a specific school.

Emily was also accepted at Northern Illinois University,Southern Illinois University at Edwardsville, and Southern Illinois University at Carbondale. Elizabeth did not know the exact costs at the state schools and did not know the difference in tuition between them and the University although she stated there was no significant difference between the tuition at the state schools and the University. Elizabeth did not inquire into the cost of any school until Emily had made her choice.

Emily testified she and her mother checked the costs of the state schools where she was accepted but she did not remember the costs any longer nor did she ever figure them out exactly. She did not apply for financial aid at the state schools because she did not decide to go to any of them. It was her choice to go to the University.

Emily chose the University because it is a small school with a good student-teacher ratio. She did not yet know what she would major in and would be a general arts major until the end of her sophomore year when she had to declare a major.

Richard testified he and Emily periodically discussed the fact she wanted to go to college but they did not discuss the name of a school. He never discussed with Elizabeth and Emily the costs of a private school as opposed to a state school. At one point, Emily did call him and tell him she needed $5,000 to attend the University. Elizabeth and Emily did not ask for his counsel, advice or input in deciding what college Emily would attend.

Richard testified, over objection, to his financial status. He testified his monthly expenses came close to exceeding his monthly income and he had no money saved. Richard stated he could not pay one-half of $17,000, the approximate cost of one year at the University. He had no objections to Emily attending one of the state schools to which she was accepted.

Richard testified he received information from his employer regarding all colleges in the state of Illinois and presented excerpts as an exhibit. From his exhibit he testified Southern Illinois University at Carbondale would cost $3,182 for tuition and fees and $3,256 for room and board for one year, while Northern Illinois University would cost $3,728 for tuition and fees and $3,300 for room and board, ...

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