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In re Marriage of Drysch

June 23, 2000


Appeal from the Circuit Court of Kane County. No. 88--D--0031 Honorable Thomas E. Mueller, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

The petitioner, Vicky Drysch, appeals from the May 25, 1999, order of the circuit court of Kane County requiring the respondent, Mark Drysch, to pay 10% of the educational expenses of the parties' son, Adam. On appeal, Vicky argues that, in determining this amount, the trial court improperly considered (1) the income of Vicky's current husband, Alex Rullo, and (2) the relationship between Mark and Adam. We reverse and remand for further proceedings.

The parties' marriage was dissolved on September 2, 1988. Pursuant to a marital settlement agreement entered into between the parties, the judgment of dissolution included a provision for the payment of future educational expenses for the parties' two children. This provision stated:

"12. Future Education Expenses: That the parties shall contribute to the future education expenses of the minor children based upon their respective financial abilities, considering the statutory standards when the children show the aptitude and desire to continue their education. If the parties cannot agree in this regards, [a] court of competent jurisdiction shall do so upon proper notice and petition, taking into consideration Section 513 of Chapter 40 of the Illinois Revised Statutes [(Ill. Rev. Stat. 1987, ch. 40 par. 513 (now 750 ILCS 5/513 (West 1998)))]."

On July 22, 1998, Vicky filed a petition for modification of judgment. Vicky's petition requested, among other relief, that Mark be required to contribute to Adam's college expenses. The petition alleged that Adam had graduated from Marmion Academy in Aurora with a 3.75 grade point average and would be enrolling at Purdue University in the fall of 1998. The cost of attending Purdue University was approximately $20,000 per year, and Adam would not be receiving any scholarships in connection with his enrollment. The petition further alleged that, as Mark was earning in excess of $80,000 per year at his work, he was able to contribute to Adam's educational expenses.

On May 5, 1999, the trial court conducted a hearing on Vicky's petition. Both Mark and Vicky testified. Mark testified that he worked as a customer engineer for Hewlett Packard and earned a gross salary of $70,000. Mark testified that he also earned interest from various savings accounts, owned 1,500 shares of Hewlett Packard stock, and had $120,000 invested in his company's 401(k) plan. Mark testified that he filed a joint tax return with his current wife for 1998 with a reported gross income of $85,269.49. Mark testified that part of this gross income was attributable to his current wife.

Vicky testified that she was a realtor and worked for the "Rullo Team" in Geneva. The Rullo Team consisted of Vicky, her new husband Alex, and three other real estate professionals. Vicky testified that Alex paid her $50,000 a year as a salary for working on the Rullo Team. Vicky further testified that she and Alex would pool their money for meeting expenses.

Vicky additionally testified that the parties' son Adam had begun attending Purdue University the previous fall. Tuition and fees at Purdue were $8,431 per semester, with room and board costing an additional $2,191. Vicky testified that although Adam had applied for scholarships, he had not received any.

Vicky further testified that Adam and Mark had not seen each other in three to five years. Vicky testified that several years earlier there had been an altercation between Mark and Adam that resulted in an order of protection being filed against Mark. Vicky testified, however, that she had encouraged Adam to keep in contact with his father. Moreover, approximately one or two years earlier, Adam had changed his last name to that of her current husband.

At the close of the testimony, Mark sought to admit into evidence the joint income tax returns of Vicky and her husband Alex. This return indicated that Alex and Vicky reported a gross income of $621,000 in 1998. Over Vicky's objection as to relevance, the trial court admitted this joint return into evidence. The trial court found that the return was relevant in light of Vicky's testimony regarding "the commingling of monies and the payment of expenses" with her husband Alex.

On May 25, 1999, the trial court entered an order requiring Mark to be responsible for 10% of Adam's college expenses. In entering its order, the trial court noted that the relevant factors to be considered pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (750 ILCS 5/513 (West 1998)) were (1) the financial resources of both parents; (2) the standard of living the child enjoyed during the marriage; and (3) the financial resources of the child. The trial court then specifically found that (1) Mark earned approximately $70,000 in 1998; (2) Mark and his new wife had a joint income of $92,000 in 1998; (3) Mark's standard of living had remained stable since the divorce in 1988; (4) Vicky earned an annual salary of $50,000 per year from her new husband, Alex; (5) Alex had a reported gross income in 1998 that exceeded $621,000; (6) Vicky enjoyed a higher standard of living now than when she was married to Mark; (7) Adam enjoyed a more affluent lifestyle now than when his parents were married; and (8) Vicky had more extensive financial resources than Mark. The trial court further found that, pursuant to Gibb v. Triezenberg, 188 Ill. App. 3d 695, 701 (1989), it was appropriate to consider the relationship between Mark and Adam. The trial court noted that Mark had not seen Adam in over five years. The trial court also noted that Adam changed his last name to that of Vicky's current husband. Following the denial of her motion to reconsider, Vicky filed this timely notice of appeal.

Prior to considering the merits of this appeal, we note that Vicky has filed a motion requesting that we strike portions of Mark's brief. Vicky contends that Mark's statement of facts contains statements and argument not supported by the record in violation of Supreme Court Rule 341 (177 Ill. 2d Rs. 341(e)(6), (f)). We have reviewed Mark's brief and agree that it does not comply with Supreme Court Rule 341. We therefore grant Vicky's motion and strike those parts of Mark's statement of facts in his brief that contain argument and facts not supported by the record. See Certified Mechanical Contractors, Inc. v. Wight & Co., 162 Ill. App. 3d 391, 396 (1987).

Vicky's first argument on appeal is that the trial court erred in considering her new husband's income in determining the amount Mark should pay towards Adam's college expenses. Vicky argues that the trial court impermissibly placed the burden of educating Adam on her new husband rather than Mark.

Our resolution of this issue is governed by section 513 of the Dissolution Act, which sets forth those factors that a trial court must consider when making an award for the educational expenses of a child. See 750 ILCS 5/513 (West 1998); In re Marriage of Dieter, 271 ...

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