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In Re Marriage of Joyce P. Koenig

April 27, 2012

IN RE MARRIAGE OF JOYCE P. KOENIG,
PETITIONER-APPELLANT, AND
JAMES E. KOENIG,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 99-MR-956 Honorable Patrick J. Leston, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Bowman and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner, Joyce P. Koenig, appeals the order of the circuit court of Du Page County granting summary judgment in favor of respondent, James E. Koenig, on Joyce's postdecree petition for contribution for college and law school expenses, which accrued prior to the petition,*fn1 for the parties' only child, Tiffany. The trial court's order barred Joyce from seeking college and postgraduate expenses that were incurred prior to the filing of the petition, predicated upon the First District Appellate Court's opinion of Petersen v. Petersen, 403 Ill. App. 3d 839 (2010), aff'd in part and rev'd in part by In re Marriage of Petersen, 2011 IL 110984. In Petersen, the appellate court ruled that the allocation of college expenses was in the nature of a modification of child support under section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510 (West 2010)) because the trial court had expressly reserved the issue of contribution pursuant to section 513 of the Act (750 ILCS 5/513 (West 2010)), and, thus, costs predating the petition were barred. Petersen, 403 Ill. App. 3d at 846.

¶ 2 Joyce appeals, arguing, inter alia, that the holding in Petersen is limited to a situation where a judgment or marital settlement agreement (settlement agreement) contains an explicit reservation of contribution for college expenses under section 513. Here, because the parties' settlement agreement did not contain such a reservation, but instead assigned to the parties financial responsibility for Tiffany's college and postgraduate expenses, Joyce argues that the holding in Petersen is inapplicable. Although James has not filed a brief on appeal, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976). For the following reasons, we reverse and remand.

¶ 3 BACKGROUND

¶ 4 On December 8, 1993, the trial court entered a judgment for dissolution of marriage, dissolving the parties' 23-year marriage. The judgment incorporated the parties' settlement agreement, which included, among other things, support arrangements for Tiffany, who was born March 3, 1985.

¶ 5 Article VII of the settlement agreement established the parties' financial responsibility for Tiffany's higher educational expenses, requiring the parties to pay certain expenses for Tiffany's college and postgraduate education. Article VII provides:

"7.1 The Husband and Wife shall pay for university, college or post-graduate school education for Tiffany herein based on their respective financial abilities and resources at said time.

7.2 For purposes of this Article, the expenses of a university, college or postgraduate school education shall include, not by way of limitation, any and all charges for tuition, room, board or lodging, and other necessary and usual expenses and transportation expenses between the school and the child's home not to exceed Five (5) round-trips per school year.

7.3 The parties' obligation under this Article shall terminate upon the last to occur of the following:

(a) The child's completion of a four year undergraduate or post-graduate degree.

(b) The child's discontinuance of said educational pursuit. For purposes of this Article, a child shall be deemed to have discontinued said education pursuit when said child is no longer actively engaged in a course of study which ...


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