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In re Marriage of Saracco

Court of Appeals of Illinois, Third District

November 25, 2014

In Re MARRIAGE OF DINO V. SARACCO, SR., Petitioner-Appellant and MELANIE SARACCO, Respondent-Appellee

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 07-D-60. The Honorable Brian E. Barrett, Judge, Presiding.

SYLLABUS

The trial court's order granting respondent mother's motion to terminate her contribution to the college expenses of one child was reversed and the cause was remanded with directions to reinstate the original contribution order requiring respondent to pay 60% of the child's college expenses and petitioner, the disabled father, to pay 40% of the college expenses, since respondent failed to show any " substantial change in circumstances," especially when respondent's income from her employment was still nearly twice the amount of disability income petitioner received after he starting receiving an additional $11,000 to care for a minor daughter.

Frank P. Andreano, of Brumund, Jacobs, Hammel, Davidson & Andreano, LLC, of Joliet, for appellant.

Peter Kaminsky, of Naperville, for appellee.

JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.

OPINION

McDADE, JUSTICE.

Page 490

[¶1] Dino Saracco (petitioner) appeals from an order granting Melanie Saracco's

Page 491

(respondent) motion to terminate/modify her contribution to college expenses. Upon review, we reverse and remand with directions.

[¶2] FACTS

[¶3] Petitioner and respondent married in 1982. Four children were born to the parties during the marriage. The parties divorced in 2008. Two of the four children were still minors at the time of dissolution. Respondent was ordered to pay child support. The judgment of dissolution reserved the issue of college contribution.

[¶4] In 2010, petitioner filed a motion for contribution to college expenses with regard to one of the parties' children (Dino). Ultimately, the trial court determined that respondent would be responsible for 60% of Dino's college expenses and petitioner would be responsible for the remaining 40%. The parties did not appeal from this order.

[¶5] In 2012, petitioner filed a motion to enforce the court's previous contribution order. The trial court granted the motion and ordered respondent to pay all outstanding amounts. The court also granted respondent leave to file a petition to terminate contribution.

[¶6] In 2013, respondent filed a motion to terminate/modify contribution.[1] The matter was called for hearing on March 26, 2013. At the hearing, respondent stated her annual income was approximately $80,000. Petitioner's attorney stated the following with regard to petitioner's income:

" Petitioner gets additional money because he has a minor child that lives in the home as part of his benefits. He's not taxed on that. So when he was [previously] asked about what his income was, his income as far as his tax person *** is $23,000. He does get another $11,000 for his daughter as part of his benefits of disability."

[¶7] Dino testified he was enrolled at St. John's College. His overall grade point average (GPA) was 2.13. Dino stated he applied for all possible scholarships and loans. His remaining tuition obligation after factoring in his scholarships and loans was approximately $4,000 per semester. Dino picked St. John's because " [i]t felt like home" and it offered him the most financial assistance. The trial court admonished Dino to " sign any paperwork necessary so that [respondent] may have full access to your college records." The court then continued the matter.

[¶8] The matter resumed on June 27, 2013. Neither party was sworn in on this date. Respondent did not call any witnesses or present any evidence in support of her motion. Instead, respondent simply presented argument to the trial court. In doing so, she stated that petitioner's income has increased because he was " working and selling things, going to auctions." Petitioner's attorney denied this claim.

[¶9] Respondent also stated that Dino refused to get a job to help pay for his tuition. The parties disputed as to whether Dino accepted all possible grants and scholarships. Respondent claimed he did not; however, she did not present any evidence in support of this claim. In response, petitioner claimed Dino did accept all possible financial assistance. Petitioner then tendered a financial statement from St. John's College indicating that Dino has accepted several scholarships, grants and

Page 492

loans. The following colloquy then took place:

" THE COURT: Okay. All right. Now, tell me why you want to either terminate or modify the college expenses.
RESPONDENT: Because he's, he's not helping towards it. He's, he's not talking to me again.
* * *
THE COURT: Do you have anything in regards to the statutory factors, the financial resources of the parents, the standard of living the child would have enjoyed had the marriage not been dissolved, the financial resources of the child or the child's academic performance that you'd like to tell me about?
RESPONDENT: Yes. I don't believe he's, he's academically working at the top that he should because he's had to take an extra year of school. He's had to take classes at Joliet Junior College to get back into the school. The school asked him to leave. And he took a whole semester off because his ...

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