Druse v. Schurman

2020 IL App (5th) 180251-U
Appellate Court of Illinois·Decided April 9, 2020·No. 5-18-0251·Unpublished

Opinion

2020 IL App (5th) 180251-U NOTICE NOTICE

Decision filed 04/09/20. The This order was filed under text of this decision may be NO. 5-18-0251 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE

limited circumstances allowed the same.

under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

CHERYL L. DRUSE, ) Appeal from the ) Circuit Court of

Petitioner-Appellee, ) St. Clair County.

)

v. ) No. 97-F-343 )

SCOTT M. SCHURMAN, ) Honorable ) Julia R. Gomric,

Respondent-Appellant. ) Judge, presiding.

JUSTICE WHARTON delivered the judgment of the court.

Justices Cates and Boie concurred in the judgment.

ORDER

¶1 Held: Where the trial court’s order awarding attorney fees was based on noncompliance with discovery rules and court orders, in keeping with section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(b) (West 2016)), we affirm the order. Where the trial court did not abuse its discretion in awarding postsecondary education costs and maintenance pursuant to section 513(a) of the Act, but did not comply with the statutory end dates for these awards, we affirm the awards but remand that portion of the secondary education expense and maintenance awards with directions to amend the order to comply with the statutory end date. Where Illinois law does not allow credit for voluntary overpayments of child support, we affirm the trial court’s order denying Schurman’s request.

¶2 Cheryl L. Druse (Druse) and Scott M. Schurman (Schurman) were never married but had a daughter born in 1997. The trial court entered an order of child support in 1998 and a second order that increased the amount of child support in 2001. Over the years the child support amount was increased in amounts to which Druse and Schurman agreed. Those increases were not

formalized by court orders. In this case, Druse sought an award of back child support and awards for postsecondary education expenses and maintenance for their daughter. The trial court entered awards in Druse’s favor for back child support, postsecondary education expenses and maintenance, and attorney fees. Schurman appeals from the trial court’s March 26, 2018, order.

¶3 FACTS

¶4 Druse and Schurman’s daughter, Jenna, was born on September 4, 1997. In late November 1998, the trial court entered an order setting child support at $116.31 every two weeks. Druse was ordered to provide health insurance for Jenna. Any medical, dental, and optical expenses not covered by the insurance were to be divided equally between the parties. The child support amount was increased to $150 every two weeks in a stipulated order entered by the trial court on May 1, 2001. Schurman voluntarily increased the bi-weekly amount to $225 on January 1, 2009, and increased the bi-weekly amount to $245 on January 1, 2011. Neither of these increases were formalized with an order entered by the trial court. Beginning in December 2014, the Illinois Department of Children and Family Services began withdrawing child support payments from Schurman’s paychecks. The amount withdrawn matched the last court-ordered child support amount of $150 every two weeks (or $69.23 per week).

¶5 Druse filed a petition for contempt and an accounting on February 24, 2015, alleging that Schurman was not paying the correct amount of child support. Druse also filed a current financial affidavit in which she stated that her monthly gross income was $4165; equity in her home was $35,169; equity in two investment accounts totaled more than $88,000; a bank account balance of $2500; and an outstanding debt of $934 owed to Southwestern Illinois College for Jenna’s spring 2015 college tuition.

¶6 In January 2016, Druse filed a petition for postsecondary education expenses. In the petition, she stated that Schurman had a 529 educational expenses account for Jenna’s benefit and that she and Jenna did not have sufficient assets or income to support themselves and pay for Jenna’s college expenses. Jenna filed her own affidavit in support of her mother’s petition in which she stated that she lived with her mother in O’Fallon, was a full-time student at Southwestern Illinois College in Belleville, and worked at Chevy’s Restaurant in O’Fallon earning approximately $643 per month.

¶7 At some point, Schurman filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court. The state trial court ordered Schurman to produce all documents and to provide information regarding the status of the bankruptcy. Because of the bankruptcy stay that precluded Druse’s collection action against Schurman in state court, Druse hired counsel to file a request in the bankruptcy court to lift the automatic stay. Druse was successful in lifting the automatic stay which allowed her to procced with the child support and postsecondary education expenses and maintenance case in the state trial court. Druse incurred $676 in legal fees associated with representation in Schurman’s bankruptcy case.

¶8 In early May 2016, Druse filed a motion seeking the release of the funds in the 529 educational expenses account established for the benefit of Jenna. On June 21, 2016, the trial court entered an order instructing Schurman to utilize the funds from the 529 account to pay Jenna’s tuition, fees, and book expenses for her attendance at Southwestern Illinois College.

¶9 In September 2016, Schurman’s attorney withdrew from the case. Thereafter, Schurman proceeded without legal representation.

¶ 10 The trial court learned that Schurman was expecting large income tax refunds. On November 15, 2016, the trial court entered an order enjoining and restraining Schurman from

“endorsing, depositing, transferring or otherwise encumbering or disposing the tax refunds attributable or received individually or jointly w[ith] another for the taxable year 2015 (which includes both state [and] federal) and upon receipt of said checks from a government entity shall send copies thereof to [Druse’s attorney].”

¶ 11 In court testimony, Schurman informed the court that he presented the income tax refund checks to the bankruptcy trustee. Schurman later changed this statement and admitted that he used all of the 2015 refunds for personal use. Then, in 2017, Schurman received federal and state income tax refunds for 2016 totaling $8314. Schurman testified that he used the 2016 income tax refunds to make mortgage payments on his house.

¶ 12 After a hearing on October 3, 2017, the trial court held Schurman in contempt of court for lying under oath about his 2015 income tax refunds and for his willful violation of the court’s November 15, 2016, order. In this order, the court noted that Schurman did not admit to his misrepresentation until after he was confronted with documentary evidence at the hearing.

¶ 13 In this same order, the trial court held Schurman responsible to pay all of Jenna’s tuition, fees, and book expenses retroactive to the date of filing. The court further ordered Schurman to pay Druse’s attorney her fees “for having to bring this matter before the Court.”

¶ 14 On November 16, 2017, the trial court entered its order responding to all outstanding issues—child support, other postsecondary education expenses and maintenance, and attorney fees.

¶ 15 Child support was a complicated issue in this case. The trial court set child support at a rate of $150 per week, $650 per month, and $7800 per year retroactive to January 1, 2010—an approximate date when Schurman began working for a new employer at a higher rate of pay. The court ordered child support from the January 1, 2010, date until February 23, 2015, the date that

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