NO. 4-07-0256 Filed 4/3/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from ROBERT J. DEIKE, ) Circuit Court of Petitioner-Appellant, ) McLean County and ) No. 94D540 MARSHELLA M. DEIKE, ) Respondent-Appellee. ) Honorable ) Rebecca Simmons Foley, ) Judge Presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Petitioner, Robert J. Deike, appeals from an order (1)
requiring him to pay one-half of his three children's college
expenses; (2) denying his request to reduce child support, except
as to the requirement he maintain health insurance on the chil-
dren; and (3) finding him in indirect civil contempt for failure
to (a) pay one-half of the children's college expenses in a
timely manner and (b) remain current with child-support obliga-
tions. We affirm as modified.
I. BACKGROUND
Robert and respondent, Marshella M. Deike (now Goben),
were married on October 17, 1981. Three children were born of
the marriage, Brennon, born July 7, 1984; Ashley, born March 19,
1986; and Paige, born August 6, 1987. On October 19, 1994, the
trial court entered a judgment for dissolution of marriage
incorporating a marital settlement agreement. The marital
settlement agreement provided each party agreed to pay 50% of the
children's college expenses; Robert agreed to pay Marshella $312.50 in child support every two weeks; and each party agreed
to keep the children covered under his or her employer-provided
health-care plan.
At the time of the dissolution, Robert was employed by
Diamondstar Motors (now Mitsubishi) and Marshella was employed at
State Farm Insurance Companies. In January 2004, Mitsubishi
decided to downsize and Robert's position was eliminated in
February 2004. He received a severance package of 38 weeks worth
of pay and health insurance. He also received unemployment
insurance benefits until about October 2004.
The parties' oldest child, Brennon, began college at
Augustana College in the fall of 2003. The parties' two daugh-
ters were in high school.
On June 18, 2004, Marshella filed a petition regarding
educational expense asking the court to define the term "college
expenses" in the provision of the marital settlement agreement
requiring each party to pay 50% of the children's college ex-
penses. That same date Marshella filed a petition for modifica-
tion of child support asking Robert be required to contribute to
the medical and dental insurance expenses for the children and
for such other relief as deemed just by the trial court. Fi-
nally, also on June 18, 2004, Marshella filed a petition for a
finding of indirect civil contempt for failure to pay child
support because Robert was two weeks in arrears on his child-
support payments.
On August 11, 2004, Marshella filed an amended petition
- 2 - regarding educational expense in which she requested the trial
court include reasonable contribution toward living expenses
during the summer months be included in the definition of "col-
lege expenses" in the provision of the marital settlement agree-
ment requiring each party to pay 50% of the children's college
expenses. On September 30, 2004, Robert filed a petition to
reduce child support to not only reduce his child-support amount
but also to eliminate the requirement he maintain health insur-
ance through his employer.
On October 13, 2006, Robert filed a petition to modify
post-high-school financial support in relation to the provision
of the marital settlement agreement requiring each party to pay
50% of the children's college expenses. On November 7, 2006,
Marshella filed a second amended petition regarding educational
expense as all three of the children were now in college and the
term "college expenses" in the provision of the marital settle-
ment agreement requiring each party to pay 50% of the children's
college expenses still needed to be defined. That same day
Marshella also filed an amended petition for adjudication of
indirect civil contempt relating to Robert's willful failure to
pay one-half of the children's college expenses.
On January 19, 2007, the trial court heard evidence
concerning all pending petitions. At the time of the hearing,
all three children were attending college. Brennon was a senior
in his final semester at Augustana College; Ashley was a freshman
at Lincoln College in Normal and was a commuter student, living
- 3 - with Marshella; and Paige was a freshman at Augustana College,
living on campus.
Testimony in regard to Brennon's college expenses was
he received $12,671 per year in grants and scholarships and
$1,350 per year in federal work study, which required him to work
to receive that money. He also earned between $1,424 and $2,237
each summer while in college. Based on Marshella's exhibits,
Robert still owed $9,856.12 through the first semester of
Brennon's senior year.
Marshella testified at that time Robert owed her
$2,931.92 as his share of college expenses for Ashley’s first
semester. A full-time commuter student at Lincoln College can
expect to pay $15,810 in tuition and fees per academic year.
Ashley is receiving a scholarship of $3,500 per year. Marshella
presented exhibits from Lincoln College and Illinois State
University (ISU) showing the out-of-pocket expenses for a full-
time commuter student were $3,425 and $6,994, respectively.
Marshella requested Ashley's living expenses for college be
calculated at the $3,425 level. Ashley worked throughout high
school and earned between $2,970 in 2003 and $7,358 in 2005. She
now works one eight-hour day per week while in college.
As for Paige's expenses, Marshella testified Robert's
50% share of college expenses still owed through December 10,
2006, was $6,930.75. Paige works 8 to 10 hours weekly while at
school and receives the same amount of financial assistance as
Brennon, approximately $12,000 per school year. Marshella
- 4 - asserted, without any documentation, the cost for Brennon and
Paige to attend Augustana College, after deducting grants,
scholarships, and work study is significantly less than it would
have been to attend the University of Illinois and not receive
any scholarships and grants.
Marshella also requested reimbursement of $577.97, one-
half of the added expenses she incurred during 2 1/2 months of
summer when the three children resided with her. She testified
Robert was also $2,187.50 in arrears in his child-support obliga-
tions.
After the parties' divorce, Marshella set up savings
accounts on behalf of the children to save for college expenses.
She used these to pay for a portion of her 50% contribution to
their expenses and depleted them completely during the girls'
first semester in college.
At the time of the hearing, Marshella was earning
approximately $57,000 per year at her job at State Farm. At the
time of the dissolution, 14 years earlier, she made approximately
$30,000 per year. Including the expenses she incurred for the
children's college education, Marshella's average monthly ex-
penses totaled $5,350.74, while her net monthly income from all
sources was only $2,361.95.
Marshella testified when the girls decided to attend
college, they did not discuss their college selections with
Robert. Ashley decided to go to Lincoln because she received a
$3,500 scholarship and she liked the school. She wanted to
- 5 - attend Lincoln instead of Parkland College because she could use
the facilities at ISU if she chose to transfer there. Paige
decided to attend Augustana because she liked the campus, her
brother attends there, it asked her to run cross-country although
it did not give athletic scholarships, and she would have oppor-
tunities there to do research in her chosen major, biology.
Robert had a college degree and educational experience
in computer-aided drafting and pre-engineering courses. He was a
staff engineer when last employed at Mitsubishi and had previous
employment experience as a contract draftsman as well as a
maintenance mechanic and in project management. In 2004, Robert
reported net earnings of approximately $47,000. Robert testified
when he was laid off in 2004, he applied to 25 to 30 engineering
firms in Central Illinois, Wisconsin, Minnesota, and North
Dakota.
In late fall 2004, Robert and his current wife, Sue,
purchased property in Ada, Minnesota, containing a bar and grill
with a small apartment upstairs for $32,000. They put $16,000
down on the property and at the time of the hearing in January
2007 the balance on the property was approximately $15,000.
Robert and Sue decided to become self-employed by operating the
bar and grill when Robert was having trouble finding work in his
field. Robert previously lived in Minnesota and had family
there. Sue had previous experience working in the restaurant
industry. In addition to the mortgage, Robert testified he and
Sue spent $5,922 and $11,087 for new equipment and remodeling
- 6 - during the first year they owned the bar and grill.
Robert also owns a cabin on a lake in Minnesota which
he inherited from his parents. In July 2006, when Robert ob-
tained a $23,000 mortgage on the lake property, it appraised at
$120,000. As of the hearing, Robert testified as an adverse
witness the mortgage was then approximately $20,000. Robert also
owns a 16-foot outboard motorboat worth $6,000 he uses at the
cabin and two snowmobiles. Robert also owns property in LeRoy,
Illinois, containing four commercial buildings. The property
previously contained a gas station and was found to have soil
contamination after his purchase. Although he at one time was
asking $57,000 for the property, now he would simply like to get
the value of the mortgage he still owes, $35,000, but he was
having a hard time selling the property.
Robert testified the bar and grill lost $28,000 in 2005
and he anticipated a loss for 2006 but not as great a loss.
In January 2006, Robert took out a $10,000 parent loan
to pay for some of Brennon's college tuition. The loan proceeds
were sent directly to Augustana but since all $10,000 was not
needed at that time, approximately $4,000 was refunded to Robert.
The $4,000 returned to Robert was not used for college expenses.
Robert still owed $9,000 on that loan.
Robert's wife Sue also testified. She and Robert
bought the bar and grill because Robert was "pretty good with
money" and she had worked in bars and restaurants all her life.
When Robert and Sue purchased the bar and grill, they intended
- 7 - for it to be their only employment; but in spring 2005, when he
was putting child-support payments on credit cards, Sue insisted
Robert find another job and he began working at Fargo Paint and
Glass where he earns approximately $27,000 per year.
Sue does most of the work at the bar now, putting in
100-hour weeks, while Robert performs maintenance and sometimes
tends bar, working 30 to 40 hours per week in addition to his job
at Fargo Paint and Glass. The business is mostly a cash business
and Sue and Robert receive no salaries. Any tips they receive go
back into the coffers of the business. They pay $8,000 per year
for dramshop insurance. Sue testified they spent $45,000 in 2005
to remodel their kitchen and another $10,000 in one-time start-up
costs. Of the $45,000 spent for the kitchen, $30,000 came from a
loan and they spent $15,000 out of pocket. The parties have an
$80,000 debt-consolidation loan. The bar and grill lost money in
2005 and again in 2006, but not as much with $126,000 gross sales
in 2006.
Robert testified in his own behalf and corrected his
earlier testimony concerning the loan secured by the cabin. He
stated the debt-consolidation loan, which was between $60,000 and
$80,000, was secured by the mortgage on the cabin. He stated he
was unsure of the amount in his earlier testimony.
After considering all of the evidence, the trial court
granted Marshella's second amended petition regarding educational
expenses. The court ordered Robert to share equally in college
expenses for all three children, defined as tuition, fees, room,
- 8 - board, books, personal expenses, and transportation expense;
medical- and dental-insurance contribution; uninsured medical,
dental, vision, orthodontia, and other health-related expenses
not covered by medical and dental insurance; and to make reason-
able contribution toward living expenses of the children during
the summer months. Specifically, the court ordered Robert to pay
one-half of Ashley's living expenses with two equal installments
of $1,712.50 per academic year, thus making Robert's one-half
equal to $3,425 per year and her total living expenses $6,850.
This was double the amount actually requested by Marshella. As
to the summer expenses, the court ordered Robert to pay $329.02
for the next two summers (2007 and 2008). The court excluded
Marshella's requested reimbursement for costs for mortgage,
property taxes, and insurance, as those are fixed costs regard-
less of the presence of the girls. The court found Robert owed
$26,236.78 in past college expenses.
In denying Robert's petition to modify post-high-school
financial support, the court found the parties' children contrib-
uted to their college education by obtaining financial assistance
and working, thus significantly reducing college costs. Further,
the court found the costs were "very reasonable" despite being
private colleges. The court also stated at the time of dissolu-
tion Robert made "substantially greater income" than Marshella
and continued to work at Mitsubishi for 10 more years. Yet
Marshella saved money for the children's college education while
Robert did not. The court found modifying the parties' agreement
- 9 - now to make Marshella pay a greater share would be unfair.
Although Robert no longer earns his Mitsubishi salary, he has
assets to use as collateral for college loans.
The trial court granted Robert's petition to reduce
child support in part and denied it in part. The court relieved
Robert of the requirement he maintain health insurance on the
children as of September 30, 2004, the date he filed his petition
to modify. However, because Marshella is required to continue to
maintain group medical, dental, and vision insurance on the
children so long as they are dependents, the court found Robert
is required to reimburse Marshella one-half of the monthly costs
of that insurance, currently $67.51.
As for child support, the trial court denied Robert's
request to decrease his child-support obligation. The court
noted while he lost his employment at Mitsubishi through no fault
of his own, once his unemployment benefits terminated, he pur-
chased the bar and grill, which he and his spouse report has
operated at a loss since the purchase. Not until spring 2005 did
Robert seek full-time employment when he had depleted his savings
account and began placing child support and college expenses on
credit cards. As a result, the court found Robert owed $2,187.50
in child support.
Finally, the trial court found Robert in indirect civil
contempt of court for failure to pay one-half of the children's
college expenses in a timely manner and for his failure to remain
current with child support. As a sanction for his contempt,
- 10 - Robert was ordered to pay $2,382.67 as partial reimbursement for
Marshella's attorney fees. The court found Robert was due a
credit of $4,375 for amounts paid in either child support or
college expenses after June 1, 2006, and, thus, the total amount
Robert owed in past college expenses plus past child support was
$24,049.78. He could purge his contempt by paying to Marshella
that amount on or before April 15, 2007.
This appeal followed.
II. ANALYSIS
A. College Expenses
"A trial court's decision to award educational expenses
will not be reversed absent an abuse of discretion." In re
Marriage of Thomsen, 371 Ill. App. 3d 236, 243, 872 N.E.2d 1, 7
(2007). A trial court has the authority to modify provisions of
a marital settlement agreement pertaining to payment of college
expenses. In re Marriage of Loffredi, 232 Ill. App. 3d 709, 712,
597 N.E.2d 907, 910 (1992). "The pertinent question in determin-
ing whether to grant a petition for modification of a provision
for payment of college expenses is the same as that on a petition
to modify any other support term. That is, whether the peti-
tioner has shown a substantial change in circumstances [cita-
tion.]" Loffredi, 232 Ill. App. 3d at 714, 597 N.E.2d at 911.
As with any other form of child support, a trial court
can consider the parties' assets and other elements of financial
resources, even the financial status of a current spouse, to
determine whether payment of support would endanger the ability
- 11 - of the support-paying party and that party's current spouse to
meet their needs. In re Marriage of Keown, 225 Ill. App. 3d 808,
813, 587 N.E.2d 644, 647 (1992). When courts look at a parent's
ability to pay a child's educational expenses, their financial
resources include all money or property to which the parent has
access. In re Marriage of Drysch, 314 Ill. App. 3d 640, 644-45,
732 N.E.2d 125, 129 (2000). Resources mean "'[m]oney or any
property that can be converted to meet needs.'" Drysch, 314 Ill.
App. 3d at 644, 732 N.E.2d at 129, quoting Black's Law Dictionary
1178 (5th ed. 1979). Section 513 of the Illinois Marriage and
Dissolution of Marriage Act (Dissolution Act) provides similarly:
"[t]he court may award sums of money out of the property and
income of either or both" of the child's parents as equity may
require for support of the child's educational expenses. 750
ILCS 5/513(a)(2) (West 2006).
Robert argues he has shown a substantial change in
circumstances since the marital settlement agreement was entered.
He lost his job at Mitsubishi through no fault of his own. He
was unable to find work in his field and bought a bar and grill
to become self-employed. He had to invest money into the bar and
grill to get the business going and, unfortunately, it has not
yet shown a profit. Due to his business obligations as well as
other obligations such as the college expenses, child support,
and the mortgage on property in LeRoy, Robert contends he has
mortgaged his cabin worth $120,000 up to $80,000 and has nothing
else to borrow against. He argues he does not have sufficient
- 12 - income to afford the costs of his three children's college
educations, including full reimbursement of Ashley's imputed
housing expenses while she is living at home.
We disagree with Robert except for the full reimburse-
ment of Ashley's living expenses. The trial court ordered Robert
to pay one-half of Ashley's living expenses and then computed it
as requiring him to make two equal payments of $1,712.50 per
academic year, making Robert's one-half equal to $3,425 per year.
This would mean her total living expenses for a year total
$6,850. At trial, however, Marshella testified living expenses
for a commuter student at Lincoln College would be $3,425 per
academic year and at ISU $6,994 per academic year. Marshella
stated the reason she presented the evidence as to the costs at
ISU was to show the $3,425 figure she was requesting per year was
reasonable. Marshella showed a total of $3,425 in living ex-
penses for Ashley. Robert is rightfully required to pay one-half
of those expenses or a total of $1,712.50 per academic year.
Thus, his two payments per academic year for Ashley will be
$855.25 each. Further, because Robert's arrearage total included
the full amount of $3,425 when he was only responsible for half
that amount, it will be reduced by $1,712.50, to a total of
$22,337.28.
As for the remaining college expenses, Robert is
responsible for one-half as he agreed to be in the marital
settlement agreement. He owns a cabin worth $120,000 and he
testified it had a $23,000 mortgage. His later testimony regard-
- 13 - ing the cabin as collateral for his $60,000 to $80,000 "debt-
consolidation" loan need not have been believed by the trial
court. He was unable to remember the amount of the loan. Robert
provided no paperwork regarding either the existence of the debt-
consolidation loan or any collateral for the loan. He testified
he paid a $16,000 down payment on the bar and grill with a sale
price of $32,000. At the time of the hearing, he testified he
owed $15,000 on the bar and grill, which means the business
should then have $17,000 in equity. He also owned a boat he
testified was worth $6,000. Robert had sufficient collateral to
obtain another loan or he could sell some of his property.
Robert lost his job at Mitsubishi through no fault of
his own, but he had substantial severance and unemployment
benefits and was employable. When those ran out, he chose to
invest in the bar and grill, thereby depleting any reserve he had
and incurring more debt when he had college-expense obligations
for Brennon and knew he would likely have those obligations for
both daughters in the near future. He is capable of earning in
excess of $47,000 per year as shown by his net income in 2004
while he is actually in a job paying him $27,000 in gross income.
Robert argues there were less-expensive educational
alternatives for his daughters although he does not argue Brennon
should not have finished school at Augustana. Brennon enrolled
there when Robert was still employed at Mitsubishi. However,
Robert did not present any specific evidence as to the actual
cost of a state school education although there was some evidence
- 14 - of it in evidence introduced by Marshella and in Robert's marked
exhibits not referred to in testimony. The thrust of Robert's
argument in the trial court was the change in circumstances
demonstrated by his job loss and losing business investment. His
argument was not about the reasonableness of the educational
expenses so much as it has been his perceived lack of resources
to pay for them.
Robert also contends the trial court's finding the
children have contributed to lower their education costs by
obtaining financial assistance and working is somewhat mislead-
ing. He acknowledges the children's ability to obtain scholar-
ships and other financial assistance as a great contribution to
their college expenses but he notes while they are working,
Marshella reported reimbursing them for college expenses they
paid from their own checking accounts. To the extent she seeks
contribution from Robert for this reimbursement, the children's
employment is not helping with college expenses.
There is no definitive breakdown in Marshella's exhib-
its as to how much money was involved in these reimbursements by
Marshella so there is no way to compute how much, if any, of
these amounts are included in Marshella's requests for reimburse-
ment from Robert. Any such reimbursement requests of Robert from
Marshella should not be made. The children's contributions to
their college expenses are just that and Robert should not be
expected to reimburse Marshella if she chooses to reimburse them
for their contributions. Their financial resources are to be
- 15 - taken into account when considering petitions to modify college
education expenses. See 750 ILCS 5/513(b)(1) (West 2006).
The trial court may have been skeptical about Robert's
financial situation. His testimony about start-up costs and
investment in the bar and grill is not the same as his wife's
testimony. He was unsure of the amount of the debt-consolidation
loan. His testimony was contradictory as to whether the debt-
consolidation loan was secured by his lake property. Bar-and-
grill patrons pay by cash, and neither he nor his spouse has
reported tips received as earnings. He obtained a parent loan to
assist in paying college expenses for Brennan but used only a
portion of the loan for those expenses.
We find no abuse of discretion in the trial court's
order requiring Robert pay one-half of his daughters' post-high-
school educational expenses as he agreed to do in the marital
settlement agreement.
B. Child Support
Child support agreed upon in the marital settlement
agreement was $312.50 every two weeks until the youngest child
reached 18 or completed high school, whichever was later.
Assuming this was 32% of net pay, Robert's yearly net pay was
approximately $22,500 while the figures for Marshella were
$30,000 in gross pay. Support terminated on August 5, 2005,
unless otherwise ordered by court. A January 19, 2006, agreed
order continued support payments until further order of the
court.
- 16 - Robert filed his petition to reduce child support in
September 2004. His net income from October 1, 2004, to June 1,
2006, when both daughters graduated from high school was $31,174.
During the same period, he lost $45,600 related to opening the
bar and grill. He contends this constitutes a substantial change
in circumstances.
Modification of child-support orders lies within the
sound discretion of the trial court, and its decision will not be
disturbed on appeal unless an abuse of discretion is found. In
re Marriage of Rogers, 213 Ill. 2d 129, 135, 820 N.E.2d 386, 389
(2004). An abuse of discretion occurs in declining to modify a
child-support obligation only when no reasonable person would
agree with the court's decision. In re Marriage of Sassano, 337
Ill. App. 3d 186, 194, 785 N.E.2d 1058, 1065 (2003).
Child support is modifiable only upon a showing of
substantial change in circumstances. 750 ILCS 5/510(a)(1) (West
2006). When determining whether there is sufficient basis to
modify child support, courts consider the circumstances of the
parents and the circumstances of the child. In re Marriage of
Breitenfeldt, 362 Ill. App. 3d 668, 673, 840 N.E.2d 694, 699
(2005). "The trial court's determination whether a substantial
change in circumstances [has] occurred is one of fact and will
not be disturbed unless it is *** against the manifest weight of
the evidence." In re Marriage of Armstrong, 346 Ill. App. 3d
818, 821, 805 N.E.2d 743, 745 (2004).
Robert contends there was a dramatic change in circum-
- 17 - stances from the 1994 judgment. Marshella's income increased
from $30,000 to $57,000 while he lost his job in 2004. Robert's
severance package paid for the equivalent of an additional 38
weeks of salary and he received unemployment compensation. He
contends he kept up child-support payments until his benefits ran
out.
Robert looked for other work but was unable to find a
job using his education, skills, and experience. Robert contends
he and his new wife chose to open a bar and grill for valid
reasons, self-employment. Unable to generate sufficient cash
flow within the first few months of ownership to meet all his
financial obligations, Robert took a job paying only $27,000 per
year.
Robert considers the bar and grill a wise financial
investment and argues consideration of his income should include
the loss he has incurred during the last 20 months in his child-
support obligation. He asks his child-support obligation be
reduced to $50 per week. Alternatively, ignoring the loss on the
bar and grill, his net income from Fargo Paint and Glass was
$359.70 per week, 28% of which would be $100.72 per week and he
argues this case should be remanded for a redetermination of
child support.
"[C]ourts have the authority to compel parties to pay
child support at a level commensurate with their earning poten-
tial." In re Marriage of Adams, 348 Ill. App. 3d 340, 344, 809
N.E.2d 246, 249 (2004). "A court may impute additional income to
- 18 - a noncustodial parent who is voluntarily underemployed." Adams,
348 Ill. App. 3d at 344, 809 N.E.2d at 249.
Robert contends the bulk of the bar and grill patrons
pay in cash and he and Sue contend they receive no salary. The
trial court could have rejected the latter contention as the
judge of the credibility of witnesses.
Marshella argues the children's needs have increased
while Robert refuses to pay even what he originally agreed to pay
as support for his children. She contends Robert did not make
reasonable efforts to seek reemployment in his field and purchas-
ing the bar and grill without investigating why it was for sale
or what the customer base was before purchasing was not a reason-
able attempt to retain earnings similar to what he earned at
Mitsubishi.
The fact Robert lost $46,500 related to opening the bar
and grill while earning only $31,174 does not amount to a sub-
stantial change in circumstances where he made that choice. The
trial court's conclusion no substantial change in circumstances
occurred is not contrary to the manifest weight of evidence where
Robert also owns a cabin and continues to operate a business at a
loss. He was able to expend thousands of dollars to renovate the
bar and grill. Before purchasing the business, Robert should
have been concerned about how he would continue to support his
children. The record establishes Robert was underemployed and,
thus, not unable to pay previously agreed-upon child support.
The trial court did not abuse its discretion in denying Robert's
- 19 - petition to modify child support.
As to the trial court's termination of Robert's obliga-
tion to maintain health insurance, he contends this was not
really a finding in his favor as the court also directed Robert
to reimburse Marshella for one-half of her costs of maintaining
insurance. The marital settlement agreement required both
parents to maintain health insurance as provided by their employ-
ers. Robert argues he did not have such insurance available at
the time of hearing so he was already in compliance with the
order of dissolution. No reimbursement was required by that
order, and given the changes in the parties' financial circum-
stances, Robert argues it was an abuse of discretion for the
trial court to order him to reimburse Marshella for insurance she
is already required to provide.
At first glance, Robert's argument has merit. However,
both parties initially agreed they would each carry health
insurance for the children through their employers. Robert
admits he no longer carries such insurance but he is now employed
at Fargo Glass and Paint and he provided no evidence he could not
obtain health insurance through that employer. Absent such
evidence, it was not an abuse of discretion for the trial court
to order Robert to reimburse Marshella one-half of the cost of
health insurance she provides the children.
C. Contempt
The trial court found Robert in indirect civil contempt
for failure to pay one-half of the children's college expenses
- 20 - and failure to remain current with child support. Section 505(b)
of the Dissolution Act authorizes a court to find a payor parent
in contempt for violating a support order. Generally, such an
order must include a finding the contemner's failure to comply
with the order was willful. Janov v. Janov, 60 Ill. App. 2d 11,
15, 207 N.E.2d 691, 693 (1965).
Whether a party is guilty of contempt is a question of
fact for the trial court and a reviewing court will not disturb
such a finding unless it is against the manifest weight of the
evidence or the record reflects an abuse of discretion. In re
Marriage of Hardy, 191 Ill. App. 3d 685, 689, 548 N.E.2d 139, 141
(1989).
Robert argues when he lost his job in February 2004
he stayed current with his obligations through 2004 due to a
severance package of 38 weeks of pay and receipt of unemployment
benefits. He filed a petition to reduce child support at the end
of September 2004. In 2005, he paid $4,687.50 in child support.
In February 2006, he paid $2,812.50. The shortfall is only
$2,187.50. In addition, Robert contends he continued to pay
child support of $312.50 for 14 weeks after the youngest children
graduated from high school on June 1, 2006. In Brennon's sopho-
more year in college (2004-05) Robert paid $8,932,85 toward
college expenses. In 2005-06 school year, he paid $9,694.62.
Robert was unsuccessful in his job search based on his
experience, skills, and education. He bought the bar and grill
and ultimately had to take a full-time job in addition to running
- 21 - the business to generate income to try to meet his obligations.
Meanwhile, mutual petitions of the parties remained outstanding
concerning the appropriate amount of financial assistance for
college and for child support. While he admits he was not in
compliance with the 1994 judgment, Robert contends his violation
was not willful and he should not be held in contempt.
Failure to pay child support is prima facie evidence of
contempt and the alleged contemner is obligated to show his
failure to comply was not willful. Gibson v. Barton, 118 Ill.
App. 3d 576, 583-84, 455 N.E.2d 282, 287 (1983). Because of this
presumption of willfulness, the burden of proof is on Robert to
show his actions were not willful. In re Marriage of Talmadge,
179 Ill. App. 3d 806, 817-18, 534 N.E.2d 1356, 1363 (1989).
Financial inability to comply with a support order is a
defense to contempt. It must, however, be shown by definite and
explicit evidence. General testimony does not meet that burden.
A payor must, by testimony, present evidence establishing with
reasonable certainty money disbursed for expenses other than
payments on the support order was disbursed for expenses permit-
ted by law. See In re Marriage of Sharp, 369 Ill. App. 3d 271,
280, 860 N.E.2d 539, 548 (2006).
Marshella filed her petition for contempt on June 18,
2004, and Robert did not respond until September 30, 2004, when
he filed his petition to modify child support. Marshella had to
file a petition for educational expenses on June 18, 2004,
amended on August 11, 2004. Robert did nothing until October 13,
- 22 - 2006, when he filed a motion to amend college-expense obliga-
tions. He failed to cooperate during discovery, requiring
Marshella to file a motion to compel and a motion for sanctions,
which resulted in sanctions against Robert. This shows disregard
for the trial court's authority and lengthened the proceedings,
resulting in larger attorney fees for Marshella.
By the time of the trial court hearing in January 2007,
Robert was in arrears on child support, college expenses he had
agreed to pay, uncovered medical expenses, and medical insurance
costs in the amount of $22,337.28. He provided no evidence he
could not pay them as they were incurred. He owned a bar and
grill, which he claimed was operating at a loss. This need not
be accepted by the court, particularly when Robert did not
explain how he and his wife, as well as her 12-year-old daughter,
survived. Robert also owned a cabin, property in LeRoy, a boat,
and the bar and grill property, which also included Robert's
apartment. The bulk of the bar and grill's customers paid in
cash, and Robert offered no real accounting of the cash. Robert
offered no justification for debts incurred and payments made for
a new business in disregard of his obligation to his children.
Because finding a party in contempt for failing to
comply with a court order implies a finding the failure to comply
was without cause or justification, the imposition of attorney
fees is allowed. In re Marriage of Cierny, 187 Ill. App. 3d 334,
348, 543 N.E.2d 201, 211 (1989). Where an ex-spouse's failure to
pay was without cause or justification, an award of attorney fees
- 23 - is mandatory by statute. See 750 ILCS 5/508(b) (West 2006). The
trial court ordered Robert to pay $2,382.67 toward Marshella's
total attorney fee bill of $5,765.34. It could have ordered
Robert to pay the entire amount.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
judgment as modified.
Affirmed as modified.
STEIGMANN, J., concurs.
COOK, J., dissents.
- 24 - JUSTICE COOK, dissenting:
I respectfully dissent. The trial court abused its
discretion and its decision is contrary to the manifest weight of
the evidence. I would reverse and remand with directions that
the trial court reduce Robert's obligation to pay college ex-
penses, eliminate Robert's obligation to pay child support, and
vacate its finding of contempt.
The dissolution judgment in this case was entered in
1994, incorporating a marital settlement agreement that required
each party to pay 50% of the children's college expenses and for
Robert to pay $312.50 in child support every two weeks until the
youngest child reached 18 (August 2005).
In 1994, Marshella was earning approximately $30,000 at
her job at State Farm and Robert was apparently earning approxi-
mately $22,500 at Mitsubishi. At the time of the hearing, in
January 2007, Marshella was earning approximately $57,000 per
year at State Farm. However, Robert's position as a staff
engineer at Mitsubishi was eliminated in February 2004 when the
company downsized. After the layoff, Robert applied to 25 to 30
engineering firms, without success. Robert and his current wife
then bought a bar and grill in Minnesota. The bar and grill lost
$28,000 in 2005. It did better but still lost money in 2006. In
the Spring of 2005, Robert began working at Fargo Paint and
Glass, where he earns approximately $27,000 per year, while still
working 30 to 40 hours per week at the bar and grill.
Brennon began college in 2003. Ashley and Paige began
- 25 - in 2006. Paige became 18 in August 2005, at which time child
support was to end, according to the marital settlement agree-
ment. Robert stayed current until June 2004 by putting his
payments on credit cards.
The trial court refused to relieve Robert of any of his
obligation to pay 50% of college expenses, employing a broad
definition of "college expenses," including living expenses
during the summer recess (but denying Marshella's request that
she be reimbursed for her mortgage, property taxes, and insur-
ance). The court found that Robert owed $26,236.78 in past
college expenses, and $2,187.50 in child support, with a credit
of $4,375 for amounts paid after June 1, 2006. The court found
Robert in indirect civil contempt for failure to pay one-half of
the children's college expenses in a timely manner and failing to
remain current with child support. As a sanction, Robert was
ordered to pay $2,382.67 as partial reimbursement for Marshella's
attorney fees. Robert could purge himself of contempt by paying
$24,049.78 before April 15, 2007.
The trial court complained that Marshella had saved
money for the children's college education while Robert did not.
The trial court reasoned that although Robert no longer earns his
Mitsubishi salary, he can borrow money to pay the college ex-
penses. While Robert lost his job at Mitsubishi through no fault
of his own, he chose to purchase the bar and grill, which has
operated at a loss.
The majority affirms the trial court's order as to
- 26 - college expenses even though it agrees that Marshella should not
have received credit for her reimbursement of the children for
the college expenses they were able to pay themselves. Unfortu-
nately for Robert, Marshella's exhibits did not break down how
much money was involved in those reimbursements. Slip op. at 15.
The majority concedes that Robert lost his job at
Mitsubishi through no fault of his own but argues that when his
severance benefits ran out "he chose to invest in the bar and
grill, thereby depleting any reserve he had and incurring more
debt when he already had college-expense obligations" and knew he
would have more in the future. Slip op. at 14. The question,
however, is not whether the choice worked out successfully.
"[E]conomic reversals as a result of changes in employment or bad
investments, if made in good faith, may constitute a material
change in circumstances sufficient to warrant a modification of a
child[-]support order." Hardy, 191 Ill. App. 3d at 690, 548
N.E.2d at 142. The question is whether the choice was made in
good faith. Employment changes that are voluntary must be made
in good faith and not prompted by a desire to avoid obligations.
In re Marriage of Waldschmidt, 241 Ill. App. 3d 7, 13, 608 N.E.2d
1299, 1303 (1993) (retirement was in good faith, not to avoid
maintenance obligation). The record affords no evidence that the
choice to become self-employed was in bad faith. In fact, it is
a mischaracterization to describe this choice as "voluntary."
Robert did not quit his job at Mitsubishi. His job was elimi-
nated and he was forced to seek new employment. He was forced to
- 27 - make a choice.
It is incorrect to say that Robert "is capable of
earning in excess of $47,000 per year as shown by his net income
in 2004," the year he lost his job and received severance bene-
fits. Slip op. at 14. We should not assume that a person who
earns $47,000 in one year will be able to earn that amount in
future years. The loss of long-term employment is often a
devastating blow from which a worker never recovers. "Certainly
this court cannot find that an employment layoff and an attempt
to become self-employed are attempts to evade financial responsi-
bility." Hardy, 191 Ill. App. 3d at 690, 548 N.E.2d at 142. It
appears that the bar and grill was the best employment Robert
could find. After losing his job at Mitsubishi, Robert unsuc-
cessfully applied to 25 to 30 other firms. Robert and his wife
had experience in the bar and restaurant business and were
familiar with the Minnesota area. Robert and his wife are
working hard at the bar and grill, Robert spending 30 to 40 hours
there a week in addition to a second job at Fargo Paint and
Glass.
Was it a mistake for Robert to "invest in the bar and
grill, thereby depleting any reserve he had and incurring more
debt when he already had college-expense obligations"? Slip op.
at 14. Robert was entitled to give some thought to long-term
considerations. If he believed the bar and grill was likely to
produce the most income over the years, Robert was entitled to
take that into account. Robert was not required to insure above
- 28 - all else that college expenses were paid. A worker who "chooses"
to go on strike may have his child-support payments reduced. In
re Marriage of Horn, 272 Ill. App. 3d 472, 477, 650 N.E.2d 1103,
1107 (1995). In In re Marriage of Webber, 191 Ill. App. 3d 327,
330, 547 N.E.2d 749, 751 (1989), petitioner argued that respon-
dent "was aware of his support obligation and the increasing
needs of their children but still chose" to enroll full time in
college and reduce his hours of employment to 14 hours per week.
The court nevertheless reduced respondent's child-support obliga-
tion. "A good-faith, voluntary change in employment which
results in reduced financial ability can constitute a substantial
change in circumstances." Webber, 191 Ill. App. 3d at 330, 547
N.E.2d at 751. The question is whether Robert acted in good
faith. No evidence indicates that he did not. He faithfully
paid child support for many years. He even paid child support
and college expenses when he did not have sufficient income, by
borrowing on his credit cards. Why would Robert intentionally
reduce his income, harming himself as well as his children?
According to the majority, "Robert had sufficient
collateral to obtain another loan or he could sell some of his
property." Slip op. at 14. The majority says that the testimony
that his cabin was already collateral for an $80,000 debt "need
not have been believed by the trial court." Slip op. at 14.
What other evidence was there? A trial court's decision should
have some support in the evidence. The majority says the bar and
grill had $17,000 in equity. Robert should have sold or mort-
- 29 - gaged the bar and grill? Giving up on the bar and grill does not
sound like a solution to the parties' financial problems, it
sounds like bankruptcy. Even if we assume Robert had some
borrowing ability left, was he required to sacrifice his earning
power for the rest of his life to pay these college expenses? "A
child does not have an absolute right to a college education."
In re Marriage of Spear, 244 Ill. App. 3d 626, 630, 613 N.E.2d
358, 360 (1993). Even if we were talking about food and shelter,
a basic principle in setting support is that the amount of
support should be based on current conditions. See In re Mar-
riage of Carpel, 232 Ill. App. 3d 806, 819, 597 N.E.2d 847, 857
(1992). It may be appropriate to require Robert to cosign
federally insured student loans for his children. It is not
appropriate to saddle him for the rest of his life with debts he
will never be able to repay.
Finally, I disagree that sanctions were properly
imposed for contempt in this case. "[A] clear defense to con-
tempt exists where the failure of a person to obey an order to
pay is due to poverty, insolvency, or other misfortune, unless
that inability to pay is the result of a wrongful or illegal
act." In re Marriage of Betts, 155 Ill. App. 3d 85, 100, 507
N.E.2d 912, 922 (1987). Criminal contempt sanctions are retro-
spective in nature and punish the contemnor for past acts that he
cannot undo. "'Civil contempt proceedings have two fundamental
attributes: (1) the contemnor must be capable of taking the
action sought to be coerced, and (2) no further contempt sanc-
- 30 - tions are imposed upon the contemnor's compliance with the
pertinent court order.'" (Emphasis added.) Helm v. Thomas, 362
Ill. App. 3d 331, 334, 839 N.E.2d 1142, 1144-45 (2005), quoting
Pancotto v. Mayes, 304 Ill. App. 3d 108, 111, 709 N.E.2d 287, 289
(1999). "The purging provision in a civil contempt sanction for
nonpayment must be based upon a contemnor's ability to pay."
Betts, 155 Ill. App. 3d at 103, 507 N.E.2d at 924-25 (requiring
payment of $12,950 all at once was unrealistic). In Hardy, the
trial court entered judgment on child-support arrearages in the
amount of $15,500, but it stayed enforcement until further order
of the court where respondent had been laid off and attempted to
become self-employed. Hardy, 191 Ill. App. 3d at 687, 548 N.E.2d
at 140. Robert clearly is not capable of paying $24,049.78 at
any time in the near future. The sanction that Robert pay
$2,382.67 as partial reimbursement for Marshella's attorney fees
lacked any coercive element and constituted instead a penalty for
a prior act.
- 31 -