In Re Marriage of Gowdy

816 N.E.2d 372, 352 Ill. App. 3d 301, 287 Ill. Dec. 610, 2004 Ill. App. LEXIS 1118
CourtAppellate Court of Illinois
DecidedSeptember 16, 2004
Docket3-03-0897
StatusPublished
Cited by13 cases

This text of 816 N.E.2d 372 (In Re Marriage of Gowdy) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Gowdy, 816 N.E.2d 372, 352 Ill. App. 3d 301, 287 Ill. Dec. 610, 2004 Ill. App. LEXIS 1118 (Ill. Ct. App. 2004).

Opinions

JUSTICE SCHMIDT

delivered the opinion of the court:

The respondent, Robyn Ann Bottens, moved to enforce a divorce judgment against the petitioner, Douglas Joe Gowdy. The court ordered Douglas to: (1) pay $4,966 toward the college expenses of the parties’ daughter, Dawn, (2) maintain Dawn as a named insured under a specific insurance policy, and (3) pay Robyn $300 in attorney fees. On appeal, Douglas argues that all three rulings are in error.

Although Robyn has failed to file an appellee’s brief, we reach the merits of the appeal pursuant to the guidelines expressed in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976). We affirm in part, reverse in part, and remand for further proceedings.

I. FACTS

The parties were divorced on October 6, 1997. The judgment order incorporated a separation agreement containing two relevant requirements. First, the parties were each required to “pay 10% of the college expenses incurred by their children, Elizabeth Ann Gowdy and Dawn Renea Gowdy.” Second, Douglas was required to “keep [Dawn] insured under a policy of medical and hospitalization insurance.”

On May 13, 2003, Robyn filed a motion seeking both enforcement of the above two provisions, as well as attorney fees. Specifically, Robyn sought to have Douglas pay $4,966, or 10% of the $49,660 in total costs for Dawn’s previous two years at Augustana College. In response, Douglas contended that the plain language of the judgment of dissolution required him to pay only 10% of “college expenses incurred.” Therefore, Douglas deducted grants and scholarships Dawn received — but would not have to repay — from the $49,660 total in determining his obligation. Douglas calculated that his obligation was therefore only $2,300, or 10% of the $23,000 in college expenses not covered by scholarships and grants.

Robyn also sought to have Douglas maintain insurance for Dawn. Douglas testified at a hearing on the motion that he had been maintaining Dawn as a named insured under a policy offered by his new wife’s employer, John Deere & Company. Douglas indicated that he terminated Dawn from that policy after discussions with a company insurance representative led him to believe that she was ineligible.

The circuit court disposed of these issues in two separate orders. On July 16, 2003, the court ordered Douglas to pay the full $4,966 toward Dawn’s prior college expenses, with credit for a $2,300 payment he made to Augustana College sometime between May 21, 2003, and July 16, 2003. That order also awarded Robyn $300 in attorney fees. On July 30, 2003, the court ordered Douglas to maintain Dawn as a named insured under the “John Deere Health & Hospitalization Plan.”

Douglas filed a timely posttrial motion challenging both of these orders. At the hearing on this motion, Douglas also asked that the court take judicial notice of the fact that he had recently divorced his new wife. He therefore contended that it was impossible for him to maintain Dawn as an insured under the John Deere insurance policy. The court denied the motion and affirmed the obligations contained in its prior orders. Douglas appealed.

II. ANALYSIS

A. College Expenses

Douglas first challenges the circuit court’s determination that the dissolution judgment required him to pay 10% of the full cost of Dawn’s college expenses. Douglas contends that under the plain language of the judgment, he is only obligated to pay 10% of the college expenses not covered by scholarships and grants. We agree.

Douglas’s argument questions the circuit court’s interpretation of the requirements of the separation agreement incorporated into the judgment of dissolution. Rules of contract construction apply to the interpretation of such provisions. In re Marriage of Druss, 226 Ill. App. 3d 470, 589 N.E.2d 874 (1992). The provisions are construed in order to give effect to the intention of the parties, and where the terms are unambiguous, the parties’ intent must be determined solely from the plain and obvious meaning of the language itself. In re Marriage of Holderrieth, 181 Ill. App. 3d 199, 536 N.E.2d 946 (1989). Whether a dissolution judgment is ambiguous is a question of law to be determined by the court. Weber v. Weber, 77 Ill. App. 3d 383, 396 N.E.2d 43 (1979).

The judgment order provided, in relevant part:

“The parties shall each pay 10% of the college expenses incurred by their children, Elizabeth Ann Gowdy and Dawn Renea Gowdy. Each of their children are [sic] obligated to pay 80% of their [sic] following college expenses: tuition, room, board, books, fees, travel, food, clothing, lab fees, yearly living expenses, gasoline, and automobile expenses. The parties agree that it is in the best interest of their children for the children to secure financing of their education through scholarships, grants, fellowships, work study programs and educational loans.”

The key language of this passage is “college expenses incurred.” (Emphasis added.) Douglas argues that while the total college expenses may have been $49,660, neither he, Robyn, nor Dawn is obligated to repay any of the scholarships or grants credited to Dawn’s account by Augustana College. Therefore, the only college expenses incurred were those over and above those scholarships and grants, an amount Douglas calculated to be $23,000.

We find that the language of the dissolution judgment is clear and unambiguous. We therefore give the language its plain and obvious meaning. Holderrieth, 181 Ill. App. 3d 199, 536 N.E.2d 946. In so doing, we note that we are unaware of any Illinois cases interpreting language in a dissolution judgment similar to the one at issue here. However, The Random House Dictionary of the English Language indicates that one definition of the word “incur” is: “to become liable or subject to through one’s own action; bring or take upon oneself.” The Random House Dictionary of the English Language 969 (2d ed. 1987). Likewise, Black’s Law Dictionary defines “incur” as follows: “[t]o suffer or bring on oneself (a liability or expense).” Black’s Law Dictionary 771 (7th ed. 1999).

Further guidance is provided in two cases from other jurisdictions. In Arnett v. Arnett, 812 So. 2d 1246 (Ala. Civ. App. 2001), the Court of Civil Appeals of Alabama interpreted a settlement agreement incorporated into a divorce judgement. That agreement required the father to pay “one-half of any college expenses incurred by the parties’ son.” (Emphasis added.) Arnett, 812 So. 2d at 1251. In that case, the son was living at home with his mother and attending a local community college.

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Bluebook (online)
816 N.E.2d 372, 352 Ill. App. 3d 301, 287 Ill. Dec. 610, 2004 Ill. App. LEXIS 1118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-gowdy-illappct-2004.