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In re Former Marriage of Donnelly

Court of Appeals of Illinois, First District, Fifth Division

June 12, 2015

In re FORMER MARRIAGE OF JOSEPH DIXON DONNELLY, Petitioner-Appellee,
v.
RENEE ELIZABETH DONNELLY, Respondent-Appellant

Appeal from the Circuit Court of Cook County. No. 93 D 3738. Honorable Raul Vega, Judge Presiding.

For APPELLANT: Paul L. Feinstein.

For APPELLEE: Gregory F. Ladle.

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.

OPINION

REYES, JUSTICE.

Page 126

[¶1] This permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) by petitioner Joseph Dixon Donnelly (Joseph) requests this court to consider a question certified by the circuit court of Cook County regarding the application of the holding in In re Marriage of Petersen, 2011 IL 110984, 955 N.E.2d 1131, 353 Ill.Dec. 320. Joseph's former wife, respondent Renee Elizabeth Donnelly (Renee), filed a series of petitions seeking that Joseph pay a proportionate share of college expenses for the parties' four children after the children graduated from college. The circuit court denied Joseph's motion to dismiss the most recent of these petitions, but certified the following question for our review:

" Does the holding in Petersen, 2011 IL 110984, 955 N.E.2d 1131, 353 Ill.Dec. 320, preclude the court from ordering a parent to reimburse the other parent for college expenses allegedly paid prior to the date the petition is filed, whenever the parties' Judgment for Dissolution of Marriage does not order a specific dollar amount or percentage to be paid but leaves the amount to be determined at a later date?"

Page 127

[¶2] We granted Joseph's petition for leave to appeal and answer the certified question in the negative.

[¶3] BACKGROUND

[¶4] Joseph and Renee were married on June 4, 1977, and had four children during their marriage. On June 25, 1996, the circuit court entered a judgment for dissolution of the parties' marriage, which incorporated the terms of the parties' marital settlement agreement (agreement). Article 6, section 6.1, of the agreement provided in part:

" Pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act or any amendment thereto, the parties covenant and agree that they shall pay for a trade school, vocational school, college or university education for the children of the parties, which obligation is predicated upon the scholastic aptitude of each child. The extent of the parties' obligation hereunder shall be based upon their then respective financial conditions. Decisions affecting the education of the children, including the choice of the school to be attended[,] shall be made jointly by the parties and shall consider the expressed preference of the child in question, and neither party shall unreasonably withhold his or her consent to the expressed preference of the child in question. In the event the parties are unable to agree upon the school to be attended or upon any of the foregoing, then a court of competent jurisdiction shall make the determination upon proper notice and petition."

Section 6.2 of the agreement placed certain conditions on the parties' obligations under section 6.1, none of which is relevant to this appeal. Section 6.3 of the agreement required Joseph to maintain accounts for each child's college or trade school expenses. Section 6.4 of the agreement acknowledged that the parties had obtained United States savings bonds to be used to pay further college or trade school expenses.

[¶5] On July 3, 2013, Renee filed a petition for sanctions against Joseph. Renee alleged that following the depletion of the funds mentioned in sections 6.3 and 6.4 of the agreement, she spent in excess of $100,000 for the educational expenses of the children from 1998 through the present date. Renee also alleged that she made repeated requests for contribution from Joseph regarding these expenses, but Joseph, with the exception of certain nominal contributions, failed to comply with these requests. Renee contended that Joseph was thereby refusing to comply with the judgment of dissolution of marriage and article 6 of the agreement. She sought an order requiring Joseph to contribute a proportionate share of the children's educational expenses, plus attorney fees incurred as a result of Joseph's willful refusal to comply with the judgment of dissolution.

[¶6] On August 5, 2013, Joseph filed a motion to strike the petition for sanctions pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (Code) (735 ILCSD 5/2-619.1 (West 2012)), arguing: (1) the Supreme Court decision in Petersen limited the retroactive payment of college expenses to the filing date of the petition; (2) sanctions were barred by the doctrine of laches ; (3) the agreement contained conditions precedent that Renee failed to satisfy; and (4) Renee failed to mention that Joseph contributed $70,000 toward the education of the children.

[¶7] On September 13, 2013, Renee filed an amended petition for educational expenses and sanctions (amended petition), which was substantially similar to the initial petition, but which also sought a rule to show cause against Joseph for his willful

Page 128

failure to pay the educational expenses. On October 3, 2013, Joseph filed a motion to strike and dismiss the amended petition, which was substantially similar to Joseph's motion to strike the initial petition, but which also sought to dismiss the amended petition with prejudice. On November 13, 2013, Renee filed a response to Joseph's motion to dismiss the amended petition, arguing that she was seeking enforcement rather than modification of the judgment for dissolution. Renee cited In re Marriage of Spircoff, 2011 IL App. (1st) 103189, 959 N.E.2d 1224, 355 Ill.Dec. 491, in support of her argument. On November 27, 2013, Joseph filed a reply in support of his ...


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