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In re Marriage of Edgar F. Bennett

July 16, 1999

IN RE MARRIAGE OF EDGAR F. BENNETT, PETITIONER-APPELLEE, AND BEATRICE M. BENNETT, RESPONDENT-APPELLANT.


The opinion of the court was delivered by: Justice McLAREN

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of Du Page County. No. 97--D--0589

Honorable Thomas J. Riggs, Judge, Presiding.

Respondent, Beatrice Bennett, appeals from the trial court's judgment dissolving her marriage to petitioner, Edgar Bennett. We affirm.

We must first address Beatrice's motion to strike portions of Edgar's statement of facts because it is argumentative in violation of Supreme Court Rule 341(b) (177 Ill. 2d R.341(b)). However, after reading Edgar's brief, we conclude that the statement of facts is not violative of the rule, and we deny the motion to strike.

Beatrice first contends that the court abused its discretion when it ordered her to reimburse Edgar for a portion of college expenses that Edgar had paid on behalf of their daughter Karen.

Karen attended Berklee College in Boston, Massachusetts. At the time of trial, Karen was beginning the fourth year of a four-year program. Beatrice was trustee on four accounts containing approximately $40,000 owned by Karen. Beatrice had refused to release any of the funds to Karen for use towards tuition or room and board and also declined Edgar's request for a contribution towards Karen's educational expenses. Edgar testified that he had spent $75,000 of his non-marital assets to pay for the first three years of Karen's education. Edgar sought reimbursement for half of these expenses from Beatrice. The trial court ordered Beatrice to reimburse Edgar $37,500, with $15,000 to come from Karen's trust accounts and $22,500 from Beatrice's funds.

We conclude that the court did not err in ordering Beatrice to reimburse Edgar for a portion of Karen's previous educational expenses. The awarding of educational expenses is within the sound discretion of the trial court. In re Marriage of Stockton, 169 Ill. App. 3d 318, 328 (1988). Beatrice argues that the court has no authority to order her to reimburse Edgar for the payment of expenses that predate the filing of the petition for dissolution. Comparing an award of educational support to an award of child support (see In re Marriage of Dieter, 271 Ill. App. 3d 181, 190 (1995)), Beatrice argues that, since a trial court has no authority to retroactively modify a child support order (see In re Marriage of Henry, 156 Ill. 2d 541, 544 (1993)), there is no authority for a court to impose a support reimbursement order retroactively for funds expended before the case was filed. However, she cites no case law or statute prohibiting the court from ordering reimbursement for the educational expenses paid prior to the filing of a petition for dissolution. The appellate court has considered reimbursement for the educational costs expended after an order of dissolution, and the concept was not rejected. See Singer v. Singer, 70 Ill. App. 3d 472 (1979) (court declined to grant a request for reimbursement only because the petitioner did not demand a specific amount or present evidence as to actual payments made or her financial position). Furthermore, a child's educational expenses are chargeable to both parents under section 15(a)(1) of the Rights of Married Persons Act (the Expense Statute). See 750 ILCS 65/15(a)(1) (West 1996). Under the Expense Statute, creditors may sue parents jointly or separately for family and education expenses. 750 ILCS 65/15(a)(1) (West 1996). Thus, Beatrice could have been held liable for all or any portion of Karen's expenses before or after the petition for dissolution was filed. See Proctor Hospital v. Taylor, 279 Ill. App. 3d 624, 626-27 (1996). We decline to hold that a trial court abuses its discretion in granting reimbursement for the educational expenses paid before the filing of a petition for dissolution and find no error here.

Beatrice next contends that the $75,000 expended by Edgar for Karen's education was a dissipation of marital assets. Dissipation occurs when a spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage and which occurs at a time when the marriage is in serious jeopardy or undergoing an irreconcilable breakdown. In re Marriage of Hahin, 266 Ill. App. 3d 168, 171 (1994). Whether certain conduct constitutes dissipation is a factual issue, and a trial court's finding as to dissipation will not be reversed on appeal absent an abuse of discretion. Hahin, 266 Ill. App. 3d at 171.

We conclude that the trial court did not abuse its discretion in finding that the $75,000 spent on Karen's education was not a dissipation of assets. First, the record is unclear as to whether the funds were marital assets. Beatrice testified that the account from which Edgar paid the funds was established with Edgar's premarital assets, although dividends from the fund had been included on the family tax returns. Edgar also testified that the account from which the funds were paid was non-marital. The court found the account to be Edgar's non-marital property, and this finding is not against the manifest weight of the evidence. As the funds were non-marital, it was not an abuse of discretion for the trial court to find no dissipation of marital assets.

Beatrice next contends that the court erred in limiting her inquiry into Karen's tax returns. Beatrice requested that the court order Karen to sign an Internal Revenue Service form to allow the IRS to release copies of Karen's tax returns to Beatrice. The court denied the request, stating that, since Karen was not a party to the litigation, Beatrice should speak to Karen outside of court to obtain that information.

Beatrice argues that the court refused her access to the return. However, the record reflects that Beatrice obtained a copy of Karen's 1997 tax return, which Beatrice labeled as exhibit R-7. The record does not reflect how or from where Beatrice received the document; however, since she obtained the document, Beatrice suffered no injury, and the court did not commit prejudicial error by denying the request to order Karen to release the document.

Beatrice also argues that the court refused to allow her to question Edgar regarding Karen's tax return. The court overruled Edgar's objection to the relevancy of the return but then sustained a relevancy objection to a question regarding Edgar's claim of Karen as an exemption on his own tax return. The court then adjourned for lunch. When the trial resumed later that afternoon, Beatrice asked no questions about Karen's tax return. The court did not prevent Beatrice from inquiring about the return; Beatrice simply abandoned the line of questioning. No error occurred.

We also find meritless Beatrice's argument that the court improperly stopped her from inquiring into the possible dissipation of marital funds via bank accounts held by Edgar's parents. Beatrice requested the court to order Edgar to sign a form authorizing the IRS to release to Beatrice the 1993 through 1997 tax returns of Erwin and Simone Bennett, Edgar's parents, over whose bank accounts Edgar exercised a power of attorney. Beatrice contended that marital assets may have been placed by Edgar into some of those accounts in banks located in New Hampshire. The court denied the request, finding that Erwin and Simone "are not parties to this litigation. There's been no showing that there is some sort of conspiracy to secrete funds ***." The court later sustained several objections during Beatrice's line of questioning regarding those accounts and explained to Beatrice what ...


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