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In re M.M.

Court of Appeals of Illinois, Second District

March 26, 2015

In re PARENTAGE OF M.M. (Cliff M., Petitioner-Appellee,
v.
Jennifer L. Barnhart, n/k/a Jennifer L. Lyons, Respondent-Appellant)

As Corrected.

Appeal from the Circuit Court of Du Page County. No. 96-F-378. Honorable Timothy J. McJoynt, Judge, Presiding.

George S. Frederick, of Mirabella, Kincaid, Frederick & Mirabella, LLC, of Wheaton, for appellant.

Win Wehrli, of Naperville, for appellee.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.

OPINION

Page 1198

ZENOFF, JUSTICE.

[¶1] M.M. is the college-aged daughter of petitioner, Jennifer L. Lyons, and respondent, Cliff M., who were never married. Following a hearing on Jennifer's petition for allocation of M.M.'s educational expenses, the trial court apportioned the costs of attending Augustana College among Cliff, Jennifer, and M.M. Jennifer appeals, arguing that she lacks the financial resources to satisfy her court-ordered obligation and that the court improperly considered her new husband's income. We agree with Jennifer's second argument, and we reverse the trial court's order and remand for further proceedings.

[¶2] I. BACKGROUND

[¶3] On December 5, 1996, Cliff filed a petition for declaration of a father/child relationship with respect to M.M. On January 2, 1997, the trial court entered an order finding that Cliff was M.M.'s biological father. That order incorporated a settlement agreement (Agreement), which included a joint parenting agreement. The parties agreed that Jennifer would have primary residential custody of M.M. and that Cliff would pay $468 per month for child support. The Agreement required Cliff to pay for M.M.'s medical insurance, but the parties agreed to equally share any uncovered medical, dental, and optical expenses. If M.M. pursued a college education, the parties' obligations with respect to medical expenses would continue until she completed her educational pursuits, discontinued her pursuits, or turned 23 years old.

[¶4] The Agreement also provided that " [t]he issue of the responsibility for the child's college and/or trade school expenses shall be determined by the financial conditions of the parties at the time said expenses are incurred." The parties agreed that " [a]ll decisions affecting the child's education, including the choice of

Page 1199

college or other institution, shall be made jointly by the parties and shall consider the expressed preference of the child." Such " obligation to provide the education for the child" was conditioned upon (1) M.M. having " the desire and aptitude for a college education or vocational education" and (2) the undergraduate education being limited to four consecutive years beginning not more than one year after high school graduation, except in the case of " serious illness or other good cause shown."

[¶5] On July 30, 2013, Jennifer filed a petition for modification of child support. That same day, she also filed a petition for allocation of educational expenses in accordance with sections 510 and 513 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/510, 513 (West 2012)). On March 18, 2014, the court entered an agreed order increasing Cliff's child support obligation to $1,230 per month, retroactive to August 1, 2013. Cliff's obligation continued until August 14, 2014, when M.M. turned 18 years old.

[¶6] On June 19, 2014, the court held a hearing on Jennifer's petition for allocation of educational expenses. The parties stipulated to the following facts. The cost of attending Augustana College, M.M.'s school of choice, for the 2014-15 school year was $51,403. The cost of attending the University of Illinois would have been $30,450 to $35,454, depending on the program. M.M. had been awarded $24,500 of assistance from Augustana for 2014-15, which included a $22,000 presidential scholarship, an early-filing award of $500, and a $2,000 music scholarship. [1] The presidential scholarship is renewable each year if M.M. maintains a 3.0 grade point average. Apart from this assistance, she is eligible for $5,500 in federal direct unsubsidized loans if she attends Augustana.

[¶7] The parties also stipulated that Cliff's gross income was $97,457.51 in 2010; $99,219.23 in 2011; $106,667.12 in 2012; and $100,752.29 in 2013. Cliff owns three properties, including a house in Winfield, Illinois, with net equity of $32,532.19; a house in Lanark, Illinois, with net equity of $161,086.04; and a lot in Lanark with net equity of $19,000. Cliff has a college savings plan for M.M. worth $16,546.97, mutual funds with Edward Jones worth $35,679.31, a brokerage account with Benjamin Edwards worth $16,499.48, and a Roth individual retirement account (IRA) with Benjamin Edwards worth $19,011.25. Additionally, his pension will be either $3,441 or $3,957 per month, depending on when he retires. Cliff also has a life insurance policy with a cash value of $1,240.66 and a checking account of nominal value.

[¶8] The parties stipulated that Jennifer had no gross income between 2010 and 2013. However, she and her husband, Tim Lyons, jointly own a home in Batavia, Illinois, with net equity of $51,617.14. She also has a life insurance policy with a surrender value of $4,272.61 and IRAs and a retirement annuity worth $38,072.58. She has checking and savings accounts of nominal value.

[¶9] Jennifer testified that she has been a stay-at-home mother since June 2000. Before that, she worked full-time at Jenny Craig Weight Loss Center for 10 years and earned at most between $27,000 and $34,000. She does not have a college degree or special training, qualifications, or experience to boost her employability. She married Tim in July 2000, and they have two children together: a 9-year-old

Page 1200

daughter and a 10-year-old son. Their daughter has certain health issues, and Jennifer homeschools her. At the time of the hearing, M.M. also resided with Jennifer and Tim.

[¶10] Jennifer testified that, apart from the child support that she was receiving at the time of the hearing, she did not have any source of income. Tim, an engineer, paid all of the family's monthly expenses of about $7,600. Their joint income tax returns for 2010 through 2013 were admitted into evidence, but they are not included in the record on appeal. Jennifer insisted that she did not receive any of the money listed on the tax returns and that it was all Tim's income.

[¶11] Jennifer described her lifestyle as modest. She drove a 2005 Chrysler Town and Country, although Tim owned a BMW.[2] Tim did not give her an allowance, and they did not have any joint bank accounts. Nor did she have access to Tim's bank accounts. She did have credit cards for household expenses, but Tim paid those bills. She also had checking and savings accounts worth $2,400, into which she deposited her child support payments. Additionally, although she and Tim jointly owned their home, she recently attempted to take out a line of credit to see if she could do so without her ...


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