Supreme Court Summaries

Opinions filed September 22, 2011

In re Marriage of Petersen, 2011 IL 110984

Appellate citation: 403 Ill. App. 3d 839.

 

      JUSTICE FREEMAN delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.

      Justice Theis took no part in the decision.

 

      The Cook County parties to this dispute married in 1983 and had three children. In 1996 they separated, and a judgment of marriage dissolution was entered in 1999. Since the children were not yet ready for college, the court, in entering the divorce decree, reserved the issue of future college expenses and retained jurisdiction to enforce the judgment.

      The youngest child had graduated college, the second was partly through his college career, and the third was ready to start, when the ex-wife filed a petition in 2007 to allocate college expenses. The court ordered the ex-husband to pay 75% of college expenses and designated amounts attributable to past expenses already paid for the first two children and anticipated expenses for the upcoming school year for the youngest two. The ex-husband appealed.

      As an aspect of support, the Illinois Marriage and Dissolution of Marriage Act provides that a court may order payment of college expenses, even those incurred after children reach the age of majority. However, the Act also provides that support may not be retroactive. In this decision, the Illinois Supreme Court held that a circuit court’s actions taken pursuant to a reservation clause are modifications which are subject to the prohibition on retroactive support. Thus, the circuit court erred in ordering the ex-husband to pay for college expenses incurred prior to the filing of the ex-wife’s petition.

      The supreme court said that the circuit court should make a recalculation as to what percentage share the ex-husband should pay. Although he should not be ordered to pay for educational expenses which predated the petition, the circuit court, in doing equity between the parties, should consider the fact that the ex-wife’ s financial resources may have been depleted by the payments already made for educating the two oldest children,

      The appellate court was affirmed in part and reversed in part and the cause was remanded to the circuit court, whose original orders were reversed.