In re Marriage of Nixon

2020 IL App (2d) 190310-U

• Court: Appellate Court of Illinois
• Decided: November 12, 2020
• Docket: 2-19-0310
• Status: Unpublished

Opinion

2020 IL App (2d) 190310-U No. 2-19-0310 Order filed November 12, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF AMY NIXON, ) Appeal from the Circuit Court n/k/a Amy Koester, ) of Lake County. ) Petitioner-Appellee, ) ) and ) No. 13-D-279 ) DOUGLAS NIXON, ) Honorable ) D. Christopher Lombardo, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court. Presiding Justice Birkett and Justice Zenoff concurred in the judgment.

ORDER

¶1 Held: Trial court’s order that the parties evenly split college expenses for their child, with a cap of $10,000 per year for each party, was an abuse of discretion as father’s living expenses, debt payments, and child support obligation exceeded his monthly net income by $744.21; pursuant to Rule 366(a)(5), father’s obligation would be reduced to $2375 for each of the child’s four years of college.

¶2 On June 18, 2014, the circuit court of Lake County entered a judgment dissolving the

marriage of petitioner, Amy Nixon, n/k/a Amy Koester, and respondent, Douglas Nixon. Amy

and Douglas had two sons, A.J.N. and N.K.N., who were 14 and 10 years of age respectively when

the judgment was entered. The judgment incorporated the parties’ marital settlement agreement, 2020 IL App (2d) 190310-U

which provided that “[the parties] shall pay for a college, university or vocation education for

[their] children, to the best of their respective abilities, pursuant to Section 513 of the Illinois

Marriage and Dissolution of Marriage Act (750 ILCS 5/513 [(West 2014)]).” On October 18,

2018, Amy filed a petition seeking a contribution from Douglas for A.J.N.’s college expenses.

Following a hearing on January 8, 2019, the trial court granted the motion, ordering each party to

pay a portion, not to exceed $10,000, of those expenses. After unsuccessfully moving for

reconsideration of the order, Douglas brought this appeal. We modify the judgment.

¶3 I. BACKGROUND

¶4 The petition for contribution alleged that A.J.N. began attending the University of Missouri

in August of 2018. Tuition, housing, dining, and other expenses were approximately $28,000 per

year for residents and $44,000 per year for nonresidents. A.J.N. was a nonresident, but he planned

to live in Missouri over the summer of 2019 in order to obtain residency for tuition purposes.

¶5 According to a bystander report of the January 8, 2019, hearing on the petition, Douglas

testified that in 2018, he “netted” $22,000. He also testified that he was paying $7000 annually in

child support and that his monthly living expenses were $5000. Exhibits admitted into evidence

included: (1) Douglas’s financial affidavit dated May 21, 2018; (2) Amy’s financial affidavit dated

May 26, 2018; (3) a document itemizing Douglas’s expenses for golf, dining, and liquor, for 2015

through 2018 (Golf/Dining/Liquor Itemization); (4) a document itemizing deposits of funds from

Douglas’s girlfriend and other sources (excluding employment income) for 2017 and 2018

(Deposit Itemization); and (5) a document itemizing Douglas’s repayment of loans from his

girlfriend (Repayment Itemization).

¶6 According to Douglas’s financial affidavit, he was employed by “Guaranteed Rate”

earning a gross income of $4053.65 per month in commissions and bonuses. After deductions for

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income taxes, payroll taxes, health insurance, and life insurance securing child support, he was left

with a net monthly income of $2337.90. His monthly living expenses were $1334.56, and he owed

over $40,000 in credit card debt on which he was making monthly payments of $1091.55. His

monthly living expenses and credit card payments exceeded his net income by $88.19. In addition,

Douglas was obligated to pay $656 per month in child support when the petition for contribution

was filed. Douglas’s principal assets were a checking account with a balance of $18,826.28 and a

401K retirement account with a balance of $83,347.07.

¶7 The Golf/Dining/Liquor itemization detailed expenditures of $6920 in 2015, $5419.32 in

2016, $5484.61 in 2017, and $1388.43 in 2018. The Deposit Itemization showed deposits of funds

from Douglas’s girlfriend in the amount of $13,050 and deposits from other sources in the amount

of $40,935. The Repayment Itemization showed repayments of $23,900.

¶8 According to the bystander’s report, Douglas testified that he was a PGA golf professional

and he “use[d] golf as a means to keep referral sources and to attract referral sources.” However,

some of the golf expenses related to golfing with his sons. Alcohol expenses related to gifts for

clients.

¶9 Amy’s financial affidavit showed that she was employed by the Special Education District

of Lake County, earning $8250.34 per month. Amy reported that she was receiving $1029 per

month in child support. We note, however, that after she executed the affidavit, the trial court

reduced child support to $656 per month. Deductions for income taxes, payroll taxes, health

insurance, mandatory retirement contributions, and union dues totaled $2228.95. Her monthly

living expenses were $7518.61. She owed $980 in credit card debt and was making monthly

payments of $59.

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¶ 10 Amy’s principal assets were bank accounts with a total balance of $32,224.19, investment

and retirement plan accounts with a total balance of $260,540, and $70,000 in home equity. She

also had a Teacher Retirement System pension worth $137,999.80.

¶ 11 In a written order the trial court found that a college savings plan for A.J.N. paid his

expenses for his first year of college. It was anticipated that A.J.N. would obtain student loans of

$6500 for his sophomore year and $7500 per year for his junior and senior years. A.J.N. would

be required to work each year and contribute $2000 in addition to the loans. The order required

Amy and Douglas each to pay 50 percent of the balance of A.J.N.’s college expenses, provided

that neither of them would be required to pay more than $10,000.

¶ 12 II. ANALYSIS

¶ 13 We initially note that, although Amy has not filed a brief, this appeal is amenable to a

decision on the merits pursuant to the principles set forth in First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

¶ 14 Section 513(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

5/513 (West 2016)) provides, in pertinent part, that “[t]he court may award sums of money out of

the property and income of either or both parties or the estate of a deceased parent, as equity may

require, for the educational expenses of any child of the parties.” Section 513(j) of the Act (750

ILCS 5/513(j) (West 2016)) provides:

(j) In making awards under this Section, or pursuant to a petition or motion to

decrease, modify, or terminate any such award, the court shall consider all relevant factors

that appear reasonable and necessary, including:

“(1) The present and future financial resources of both parties to meet their

needs, including, but not limited to, savings for retirement.

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(2) The standard of living the child would have enjoyed had the marriage

not been dissolved.

(3) The financial resources of the child.

(4) The child’s academic performance.”

An award of educational expenses is reviewed for an abuse of discretion. In re Marriage of

Wilhelmsen, 2019 IL App (2d) 180898, ¶ 6.

¶ 15 The record sheds no light on the standard of living A.J.N. would have enjoyed had the

marriage not been dissolved or on A.J.N.’s academic performance. However, assuming that the

University of Missouri was an appropriate college choice, the contribution award would appear to

be commensurate with A.J.N.’s financial resources. Thus, whether the contribution award was

appropriate hinges on the parties’ financial resources. A parent should not be ordered to pay more

for educational expenses than he or she can afford. In re Marriage of Fahy, 208 Ill. App. 3d 677,

698 (1991). Moreover, “[a] party’s ability to pay must be evaluated with regard to the party’s

resources at the time of the hearing.” In re Support of Pearson, 111 Ill. 2d 545, 552 (1986).

¶ 16 Our decision in In re Marriage of Thurmond, 306 Ill. App. 3d 828 (1999), is instructive.

In that case, the father was ordered to pay $5148 per year ($99 per week) for educational expenses.

Adjusted for inflation, that amount is the equivalent of $8,082 per month. 1 His take home pay was

1 We use an adjustment factor of 1.57 based on the relative purchasing power of a dollar in

April 1997, when the hearing on the issue of education expenses in Thurmond was held, and a

dollar in January 2019, when the hearing was held in this case. The United States Bureau of Labor

Statistics website maintains a Consumer Price Index inflation calculator

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$2779 per month ($667 per week). Adjusted for inflation, that amount is the equivalent of

$4363.03 His living expenses and debt payments were $1995 per month. Adjusted for inflation,

that amount is equivalent to $3132.15. He paid $589 ($136 per week) per month in nonminor

support and $200 per month for another child’s past college tuition and fees. Combined, those

amounts are equivalent to $1239.73.

¶ 17 Based on those figures, we held in Thurmond that the amount of educational expenses

awarded was more than the father could pay and was thus an abuse of discretion. Likewise here,

the annual $10,000 upper limit of the contribution amount was more than Douglas can pay. When

the hearing was held on the contribution petition, Douglas’s take-home pay was $2337.90, his

monthly living expenses were $1334.56, he was paying $1091.55 per month on credit card debt,

and was obligated to pay $656 per month in child support for his younger son, N.K.N. Thus, his

living expenses, debt payments and child support obligations exceeded his monthly net income by

$744.21. In contrast, the parent’s inflation-adjusted net income in Thurmond exceeded his living

expenses, debt payments, and support obligations by only $8.85.

¶ 18 We thus conclude that the trial court abused its discretion by ordering Douglas to pay up

to $10,000 per year for A.J.N.’s educational expenses. Although we may remand to the trial court

for entry of an appropriate award, Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994)

provides that we may “enter any judgment and make any order that ought to have been given or

made.” As noted, section 513(a) provides that educational expenses may be awarded not only

(https://www.bls.gov/data/inflation_calculator.htm) (last visited Oct. 26, 2020) [https:// perma.cc/

LE3E-YVMU] which shows that $1 in April 1997 had the purchasing power of $1.57 in January

2019.

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from a parent’s income, but also from his or her property. Douglas’s property includes a checking

account with a balance of nearly $19,000. It is reasonable for Douglas to contribute half that

amount to A.J.N.’s education over the course of four years of college. Accordingly, Douglas

should contribute up to $2375 per year. We therefore modify the judgment accordingly.

¶ 19 We note that, inasmuch as Amy has not filed a brief, she has not asked us to review the

trial court’s decision concerning her own obligation to contribute to A.J.N.’s education, and we

have no occasion to do so. We further note that our decision does not change the amount that Amy

is required to contribute to A.J.N.’s educational expenses. Each party’s obligation is independent

of the other’s and is calculated solely with respect to the amounts that A.J.N. is responsible for.

¶ 20 III. CONCLUSION

¶ 21 For the foregoing reasons, we modify the judgment of the circuit court of Lake County to

provide that that Douglas shall not be required to pay more than $2375 per year for A.J.N.’s

educational expenses. In all other respects, the judgment is affirmed.

¶ 22 Affirmed as modified.

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