In re Marriage of Korte

549 N.E.2d 906, 193 Ill. App. 3d 243, 140 Ill. Dec. 255, 1990 Ill. App. LEXIS 2
CourtAppellate Court of Illinois
DecidedJanuary 4, 1990
DocketNo. 4—89—0571
StatusPublished
Cited by3 cases

This text of 549 N.E.2d 906 (In re Marriage of Korte) 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 Korte, 549 N.E.2d 906, 193 Ill. App. 3d 243, 140 Ill. Dec. 255, 1990 Ill. App. LEXIS 2 (Ill. Ct. App. 1990).

Opinion

JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal from the order of the circuit court of Macon I County modifying the judgment of the dissolution of the marriage ofl the parties, Barbara A. Korte, petitioner, and Richard A. Korte, respondent, to provide that respondent pay $90 per week from August 29, 1989, to May 20, 1990, and continuing in like manner each succeeding school year for a similar time period to help defray the $3,500 shortage in the college education funds of Shawna Korte, the daughter of the parties. These payments by respondent are to continue only so long as the child is enrolled in an accredited college or university and registered for a minimum of 12 credit hours. In the event the child is enrolled for a summer term on a full-time basis as defined by the college or university, the payments shall continue to be made in the same weekly amount through the summer.

The parties were married on November 27, 1965, and their marriage was dissolved on November 15, 1978. Their only daughter, Shawna, was born June 10, 1971. The judgment of dissolution awarded custody of this child to petitioner and ordered respondent to pay $50 per week as child support.

On February 21, 1989, petitioner filed a petition for educational support. At the time of the hearing, Shawna was a 17-year-old high school senior. She had been probationally accepted to Southern Illinois University (SIU). Shawna presented an estimated budget for one academic year, totalling $7,000. The budget included $2,166.60 tuition and fees, $2,624 room and board, $12 campus housing and activity fee, $450 books and supplies, and $1,747.40 living expenses. This estimate was prepared by the financial aid office at SIU. Shawna had received a $949.40 award for the fall semester 1989 from the Illinois State Scholarship Commission (ISSC). Shawna believed the award was also approved for the 1990 spring semester as well, making a total amount of $1,898.90. She also was awarded a Pell Grant for $875 for each semester, a total of $1,750. The total of all of these grants is $3,648.90, per academic year.

The ISSC letter awarding the $1,898.90 indicates it is for tuition and fees at SIU. It further states that if the tuition and fees increase, the ISSC “will automatically reconsider your award.” Petitioner testified she believed the ISSC would adjust the award to cover whatever tuition and fees are due at SIU. Petitioner testified that $100 per month would be adequate living expenses. Shawna testified she thought it would take $1,747.40 per academic year, but admitted that, in her discovery deposition of April 21, 1989, she stated $80 per month would be sufficient.

Shawna had $300 in a savings account and $40 in a checking account. She currently works five or six hours per week and takes home $25 per week. She spends the money she earns on having fun, school functions, and sometimes on clothes. She does not intend to work during her first year of college. She owns a car given to her by the respondent. No attempt has yet been made to obtain a student loan.

Based upon his testimony and financial affidavit, respondent’s monthly living expenses were $1,634.17, including $215 for child support, and his monthly net income was approximately $2,225. Based on petitioner’s financial affidavit and testimony, petitioner’s monthly living expenses at the time of the hearing were $937.88 and her net monthly income was approximately $1,190, from three jobs. However, petitioner testified she would save the following amounts in expenses after Shawna left for college: (1) $45 per month on gas for Shawna’s car, and (2) $62.50 per month on food and household supplies. An additional $35-per-month expense for dental work would be paid off in September or October 1989. On the other hand, petitioner expected her long-distance telephone expense would increase after Shawna went to college, and she would no longer be receiving the $50 per week in child support payments from respondent. Respondent testified he received a refund from 1988 Federal income taxes of $1,539.58, one-half of which belonged to his current wife. Petitioner received a refund for 1988 Federal income taxes of $1,040.42. There was testimony by respondent that he has been ill and his income is now diminished as a result.

On appeal, three issues are raised. These issues are: (1) whether the trial court’s finding of a $3,500 shortage in Shawna’s education funds was against the manifest weight of the evidence; (2) whether the order of the trial court requiring respondent to pay the entire amount at the rate of $90 per week was an abuse of discretion or against the manifest weight of the evidence; and (3) whether respondent was denied his constitutional right to due process of law and/or the trial court committed an abuse of discretion by failing to consider respondent’s written closing argument after having considered petitioner's written closing argument.

At the close of the hearing on this matter, the trial court directed petitioner to file her written closing argument by 4:30 p.m. on May 4, 1989, and respondent to file his written closing argument by 4:30 p.m. on May 5, 1989. According to respondent, both documents were timely filed, but respondent’s closing argument was not received by the trial judge from the circuit clerk until May 12, 1989, the day after the trial court entered findings of fact in a minute order. We note that the docket entry dated May 5, 1989, has been blocked out and amended to read that respondent’s written closing argument was on file as of May 12, 1989. However, the date file-stamped on the document itself reflects filing as of 2:45 p.m. on May 5, 1989. The order from which this appeal is taken was entered June 21, 1989. Since there is nothing in the record which indicates the trial court did not consider respondent’s written final argument, we presume the trial court did consider respondent’s written final argument, even though the trial court did enter findings of fact in a minute order.

Assuming, for the sake of argument, that the trial court did not consider respondent’s written final argument, we believe the omission of the trial court to consider respondent’s written final argument would be harmless error in this case. (See Vieceli v. Cummings (1944), 322 Ill. App. 559, 54 N.E. 717.) This court is concerned that the circumstances of this case could give the parties and the general public the false impression that cases are decided unfairly. On the other hand, it is the obligation of respondent’s attorney, not the circuit clerk, to see that documents are filed and are brought to the attention of the judge presiding. Circuit clerks may not know when a judge has taken a matter under advisement. Had the respondent made sure the judge had a copy of the written final argument in addition to filing a copy in the circuit clerk’s office, the worst that could have happened is that there would be two such documents included in the record. Therefore, any error which may have occurred was caused by respondent failing to present his written argument to the judge.

Nor do we believe the omission of the trial court to consider the respondent’s written final argument rises to the level of a violation of defendant’s constitutional right to due process. (U.S. Const., amend. XIV: Ill. Const. 1970, art. 1, §2.) Respondent was given notice and an opportunity to be heard and defend in an orderly proceeding. The proceedings were fundamentally fair to respondent.

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Bluebook (online)
549 N.E.2d 906, 193 Ill. App. 3d 243, 140 Ill. Dec. 255, 1990 Ill. App. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-korte-illappct-1990.