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Street v. Street

September 06, 2001

LINDA A. STREET PETITIONER-APPELLEE
v.
DANIEL L. STREET RESPONDENT-APPELLANT



Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois No. 91 D 456 Honorable Rebecca Steenrod Judge, Presiding

The opinion of the court was delivered by: Justice McDADE

Released for publication October 30, 2001.

LINDA A. STREET PETITIONER-APPELLEE
v.
DANIEL L. STREET RESPONDENT-APPELLANT

Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois No. 91 D 456 Honorable Rebecca Steenrod Judge, Presiding

The opinion of the court was delivered by: Justice McDADE

PUBLISHED

 On March 15, 2000, Linda Street, n/k/a Linda Ross (Linda), filed a petition for college educational expenses, asking the court to require Daniel Street (Daniel), her ex-husband, to pay 75% of the cost of sending their son, Austin Street (Austin), to Bradley University. She also asked the court to order Daniel to pay $300.00 per month toward Austin's room, board, dues, transportation, books, fees, etc. while Austin resided with her and attended Bradley. At the hearing on June 14, 2000, the trial court refused to consider the income of Linda's current husband, Carl Ross. On July 7, 2000, the court entered an order requiring Daniel Street to pay 75% of the remaining $12,100 toward Austin's college education, and $235 toward Austin's additional expenses. Daniel appeals from the trial court's refusal to consider Carl Ross' income, and from the order requiring him to pay $9,000 towards Austin's Bradley education. We affirm in part, reverse and vacate in part, and remand.

FACTS

Linda and Daniel were divorced on March 9, 1992. At that time, they had two minor children. The dissolution judgment incorporated a marital settlement agreement which gave Linda custody of the minor children, subject to Daniel's visitation rights. In addition, the post majority college expense was "specifically reserved." From the time of their divorce in March 1992 until Thanksgiving 1996, Daniel regularly exercised his visitation rights, apparently with some difficulty.

Around Thanksgiving 1996, Daniel's children refused to accompany him to a Thanksgiving dinner at the time previously specified by the court. On December 1, 1996, Daniel wrote his children a letter, explaining to them that he would no longer attempt to exercise specific visitation. Rather, he asked them to contact him when visitation was convenient for them. Between December 1, 1996, and June 2000 Daniel only heard from Austin twice. However, Daniel continued to send Austin cards on his birthday and Christmas, without any response.

On March 15, 2000, Linda filed a petition for college educational expenses, stating that Austin had been accepted to Bradley University (Bradley) for enrollment in the fall semester. The petition also set forth that Austin had an aptitude in math and science, and that he was planning to pursue a mechanical engineering degree at Bradley.

According to Linda's financial affidavit, she was employed as an office manager with a net monthly income of $1,746, she received $860.00 per month in child support, and she had total living expenses of $4,876.66 per month. Her affidavit did not disclose any mortgage or rent obligation, ownership of an American Mutual fund, a New Economy fund, income from interests in a farm trust and a family partnership, or any real estate tax obligations.

Daniel's financial affidavit reflected that he worked at Caterpillar as an electrician, earning a net monthly income of $2,164.63 (after paying $909.30 in child support). He had total living expenses of $2,840.28 per month, along with assets totaling $156,535.52 in value and debt totaling $34,911.35. His paycheck stub indicated that he earned $23.18 per hour, and averaged 6.14 hours per week in overtime. However, according to Daniel's tax return and W-2, he earned $80,843.93 in 1999.

During the discovery process, Linda refused to produce anything regarding the income or assets of her current husband, Carl Ross. At the hearing on the petition on June 14, 2000, however, Linda did testify that she and Carl Ross had been married in November 1999, and they had been living together in a newly constructed, jointly-owned home for a little over a year at the time of the hearing. Linda testified that the home was valued at approximately $420,000, and they had a mortgage of approximately $370,000. Linda also testified that she had a checking and savings account held in joint tenancy with Carl, as well as a mutual fund worth about $25,000.

At the hearing both Linda and Daniel testified in detail regarding their financial status. Linda was extensively cross-examined with regard to the items not disclosed on her financial affidavit. In addition, the court did allow some cross-examination with regard to assets held jointly by Linda and Carl. However, the court refused to allow any inquiry into assets or income held solely by Carl.

During the hearing, Linda produced the projected annual expenses for Austin to attend Bradley as a commuter student in 2000-2001. The estimated tuition was $14,600, which would be reduced by a $2500 scholarship. An additional $2,000 would be needed for books and supplies, clothing, laundry, recreation, transportation and other personal expenses. Because Austin planned to live at home, costs for room and board were not included in the projection. Linda submitted her own estimate for Austin's expenses, including his share of the family utilities and meals totaling approximately $225 per month, and his activities totaling approximately $250.00 per month.

Daniel introduced evidence with regard to the estimated cost to attend the University of Illinois on a full-time resident basis for an engineering student, which totaled $12,180 per year. Daniel also introduced evidence that Austin could attend Illinois Central College for approximately $1,600 per year plus room and board, or Eastern Illinois University (another college to which Austin had been accepted) for between $7,000 and $8,000 per year for tuition, room, and board. Daniel testified that he believed a state school would ...


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