In re MARRIAGE OF SUZANNE WILHELMSEN, Petitioner-Appellee, and THILO WILHELMSEN, Respondent-Appellant.
from the Circuit Court of Lake County, No. 13-D-1116
Honorable Charles L. Smith, Judge, Presiding.
T. Williamson, of The Stogsdill Law Firm, P.C., of Wheaton,
L. Colaluca, of Law Office of Gina L. Colaluca, LLC, of
Chicago, for appellee.
JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion. Justices Schostok and Hudson concurred in the
judgment and opinion.
1 This postdecree appeal presents issues about contribution
for higher education expenses by former spouses. Suzanne and
Thilo Wilhelmsen were married in 1993 and their marriage
resulted in three children-Z.W., M.W., and L.W. Ultimately,
the parties divorced in 2013. As part of the marital
settlement agreement (MSA) incorporated into the dissolution
judgment, the parties agreed to share the payment of the
children's higher education expenses pursuant to section
513 of the Illinois Marriage and Dissolution of Marriage Act
(Act) (750 ILCS 5/513 (West 2012)), which applies after a
child reaches the age of majority. In addition, another
section of the MSA provided that Thilo owed Suzanne a support
arrearage in the amount of $79, 301.44. The MSA
stated that Thilo would pay that money to the children's
college savings plans under section 529 of the Internal
Revenue Code (26 U.S.C. § 529 (2012)) at a rate of
$734.27 per month-that is, $244.76 to each child's
plan-for 108 months.
2 Within a year of the entry of the decree, Thilo filed a
petition to vacate or modify the judgment and asked the court
to "dismiss any arrearages." During this time,
Thilo maintained a six-figure income as a sales and bid
manager at a design, engineering, and construction firm.
(Suzanne also earned a substantial income as an executive at
an automotive company.) The court found that Thilo had failed
to meet his burden to reopen the judgment. A few months
later, Thilo again asked the court to modify the judgment to
excuse more than $45, 000 of the arrearage to the college
plans and to further order that any further contributions be
"considered voluntary." The court denied the
motion. See generally 750 ILCS 5/510(b) (West 2012)
(explaining that provisions concerning property distribution
may be modified only on a finding of conditions that warrant
reopening the judgment).
3 Thilo next filed a petition for voluntary bankruptcy under
Chapter 13 (11 U.S.C. § 1301 et seq. (2012)),
which petition was captioned as In re Wilhelmsen,
No. 16-bk-32787 (N.D. Ill.). Suzanne intervened in the
bankruptcy and filed an adversary claim with respect to the
section 529 arrearage. Suzanne's adversary action was
concluded when the bankruptcy court entered an agreed order
classifying the debt to Suzanne as a "domestic support
obligation," which is nondischargeable in bankruptcy.
See 11 U.S.C. §§ 101(14A), 523(a)(5) (2012).
4 Next we note that, when the dissolution judgment was
entered in 2014, the parties' oldest child Z.W. was 14
years old. By the time some of these matters were resolved,
Z.W. had turned 18 and would be enrolling in a private
college out of state. Accordingly, Thilo filed a petition to
reduce his child support payment, on the basis that Z.W. had
reached the age of majority, and he filed a petition to set
his contribution for Z.W.'s college expenses to $0 based
on his claimed inability to pay for Z.W.'s college
education. See generally 750 ILCS 5/513 (West 2018) (enabling
court to allocate obligations for educational expenses for a
nonminor child). In the alternative, based on his
interpretation of section 513(h) (750 ILCS 5/513(h) (West
2018)), which we address below, Thilo again asked the court
to credit his arrearage payments to all three of the
children's section 529 accounts against any financial
obligation the court imposed for Z.W.'s higher education.
5 On May 17, 2018, the trial court held a hearing, after
which it determined that Thilo's child support obligation
would be reduced; however, the court ordered that Thilo would
pay 40% of Z.W.'s college expenses (based on in-state
tuition at the University of Illinois at Urbana-Champaign
(see 750 ILCS 5/513(d) (West 2018)) while Suzanne would pay
60%. In addition, the court ordered that there would be no
modification of Thilo's obligation to reimburse the
children's section 529 plans. On October 1, 2018, the
court denied Thilo's motion to reconsider.
6 Thilo appeals, and we affirm. Thilo challenges the trial
court's application of section 513 of the Act. Under
section 513, the court may award educational expenses for
adult children for college or professional training. The
determination of an award of educational expenses is reviewed
for an abuse of discretion (see Blisset v. Blisset,
123 Ill.2d 161, 171 (1988); In re Marriage of
Zukausky, 244 Ill.App.3d 614, 623 (1993) (citing In
re Support of Pearson, 111 Ill.2d 545, 551 (1986))),
while the trial court's interpretation of section 513 is
reviewed de novo (see In re Marriage of
Petersen, 2011 IL 110984, ¶ 9)." 'A trial
court abuses its discretion only where no reasonable person
would take the view adopted by the trial court.'"
In re Marriage of Keaton, 2019 IL App (2d) 180285,
¶ 9 (quoting In re Marriage of Schneider, 214
Ill.2d 152, 173 (2005)).
7 We first address Thilo's contention that the trial
court erred when it "failed to consider anything besides
income of the parties in rendering its decision" on the
allocation of Z.W.'s college expenses. Section 513(j) of
the Act sets forth several factors for the court to consider
in allocating higher education expenses to former spouses,
which include the parties' present financial resources,
the child's standard of living had the marriage not been
dissolved, the child's financial resources, and the
child's academic performance. 750 ILCS 5/513(j) (West
2018). That said, we reject Thilo's assertion of error.
Thilo has failed to include a transcript of the May 17, 2018,
evidentiary hearing after which the court allocated
Z.W.'s educational expenses. Thilo has also failed to
include any exhibits introduced at the hearing. Therefore, we
must presume that the court properly applied the factors to
the evidence under section 513(j). See Foutch v.
O'Bryant, 99 Ill.2d 389, 391-92 (1984) (noting that
it is the appellant's burden to present a complete record
on appeal and that without one "it will be presumed that
the order entered by the trial court was in conformity with
law and had a sufficient factual basis"). For this same
reason, we are compelled to reject Thilo's contention
that the court ordered him to pay more for Z.W.'s
educational expenses than he could afford.
8 We next turn to Thilo's primary argument: that the
trial court erred by not crediting his total monthly
arrearage payments-that is, his payments to all
three of the children's section 529 accounts-against
the amounts the court ordered Thilo to pay for Z.W.'s