{ "id": 1336104, "name": "In re MARRIAGE OF MARGARET ROSE THURMOND, Petitioner-Appellee, and JOHN WILLIAM THURMOND, Respondent-Appellant", "name_abbreviation": "In re Marriage of Thurmond", "decision_date": "1999-08-11", "docket_number": "No. 2-98-0867", "first_page": "828", "last_page": "836", "citations": [ { "type": "official", "cite": "306 Ill. App. 3d 828" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "201 Ill. App. 3d 320", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592339 ], "year": 1990, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0320-01" ] }, { "cite": "208 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548997 ], "year": 1991, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0677-01" ] }, { "cite": "111 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166520 ], "year": 1986, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0545-01" ] }, { "cite": "236 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5781845 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0337-01" ] }, { "cite": "258 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2882013 ], "year": 1994, "pin_cites": [ { "page": "840-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0835-01" ] }, { "cite": "148 Ill. 2d 15", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283106 ], "year": 1992, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0015-01" ] }, { "cite": "211 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2528998 ], "year": 1991, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0797-01" ] }, { "cite": "170 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586729 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0726-01" ] }, { "cite": "160 Ill. App. 3d 277", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650402 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0277-01" ] }, { "cite": "268 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381882 ], "year": 1994, "pin_cites": [ { "page": "889" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/268/0882-01" ] }, { "cite": "244 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099967 ], "year": 1993, "pin_cites": [ { "page": "623" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/244/0614-01" ] }, { "cite": "111 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166520 ], "year": 1986, "pin_cites": [ { "page": "552" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/111/0545-01" ] } ], "analysis": { "cardinality": 767, "char_count": 18742, "ocr_confidence": 0.743, "pagerank": { "raw": 7.607444875271418e-08, "percentile": 0.4502331989239527 }, "sha256": "585b7f41d2c2ceedc5e1172fdf4bbcc71849a402b5eee95d50d1997095938ca8", "simhash": "1:8fa6f0267d190cfd", "word_count": 3085 }, "last_updated": "2023-07-14T19:16:55.452164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RAPR J., concurs." ], "parties": [ "In re MARRIAGE OF MARGARET ROSE THURMOND, Petitioner-Appellee, and JOHN WILLIAM THURMOND, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nRespondent, John William Thurmond, appeals from an order of the circuit court of Winnebago County requiring him to pay (1) $136 per week in support for his 20-year old son, Alexander C. Thurmond (Alex); and (2) 70% of Alex\u2019s college tuition and fees. For the reasons that follow, we reverse and remand with directions.\nFACTS\nPetitioner, Margaret Rose Thurmond, and respondent were married on August 20, 1971. Three children were born of the marriage, namely, John Jr., Vanessa, and Alex. On March 25, 1994, the circuit court of Winnebago County entered a judgment of dissolution of marriage. At that time, Alex was the parties\u2019 only minor child. Under the terms of the judgment, petitioner was awarded custody of Alex, and respondent was ordered to pay petitioner $150 per week in maintenance and $136 per week in child support.\nOn February 27, 1996, respondent filed a pro se motion to terminate maintenance and child support payments. Subsequently, respondent retained counsel. On January 13, 1997, respondent filed a petition to vacate child support and to terminate maintenance. The petition noted that Alex turned 18 years old on April 6, 1995, and that he graduated from high school on June 1, 1996. The petition prayed for a termination of maintenance on the ground that petitioner failed to make a good-faith effort to rehabilitate herself.\nOn April 3, 1997, petitioner filed a petition for post-high school support. The petition requested financial support from respondent for Alex\u2019s postsecondary education. The petition alleged that Alex suffers from \u201ceducational and learning disabilities.\u201d The petition also alleged that petitioner did not have sufficient funds to enroll Alex in an institution of higher education and requested financial assistance from respondent to assist Alex in his postsecondary educational endeavors.\nA hearing on the parties\u2019 motions was held on April 7, 1997. At the hearing, petitioner testified that Alex is a \u201cslow learner\u201d with an IQ of 89, which she described as \u201cbordering on below average.\u201d Petitioner admitted that Alex was not eligible for Social Security disability benefits because neither the State of Illinois nor the State of Wisconsin would declare Alex disabled. Petitioner testified that her income ranged from $7,000 in 1994 to $11,000 in 1996.\nAccording to petitioner, she and Alex had researched schools that have learning assistance programs for their students. They located one school in Colorado and one school in Utah. Petitioner also noted that Alex\u2019s composite score on the ACT college entrance examination was 16. Petitioner admitted that Alex finished high school in four years and that during his last year of high school, with the exception of one grade of \u201cC,\u201d Alex received all \u201cA\u201ds and \u201cB\u201ds. Petitioner testified that at the time of the hearing Alex was enrolled in a technical college, where he was taking classes in sign language and computers.\nRespondent testified that his take-home pay after child support and maintenance is withheld is $391.92 per week. Respondent also stated that he would not have \u201cany problem contributing toward [his] son\u2019s education\u201d but that he would like to be informed as to where Alex is enrolled and the classes that Alex is taking. Respondent also testified that he has no health insurance through his employer, no retirement funds, and no savings.\nOn February 6, 1998, the trial court entered an order (1) requiring respondent to continue paying child support for Alex in the amount of $136 per week; (2) directing respondent to pay 70% ($2,975) of Alex\u2019s college tuition and fees for the 1997-98 school year at the rate of $99 per week and 70% of Alex\u2019s college tuition and fees for the 1998-99 academic year; (3) reserving the issue of maintenance; and (4) ordering respondent to pay past-due child support subject to a credit for the overpayment of maintenance. The order also required Alex to apply any earnings from his employment towards his personal living and college expenses and to provide respondent with information about his progress at college.\nOn March 3, 1998, respondent filed a motion for clarification and for reconsideration of the February 6, 1998, order. The motion sought clarification as to the findings made by the court regarding (1) respondent\u2019s and petitioner\u2019s ability to assist Alex in paying his college tuition and fees; (2) Alex\u2019s ability to pay his college tuition and fees; (3) respondent\u2019s obligation to continue paying child support; and (4) the fact that, pursuant to a separate order, respondent was required to pay $200 a month for Vanessa\u2019s past college tuition and fees. The motion sought reconsideration on the grounds that there was no basis to support the continuation of child support payments for Alex. In addition, respondent challenged that portion of the order requiring him to pay 70% of Alex\u2019s college tuition and fees for the 1997-98 and 1998-99 academic years.\nOn June 9, 1998, the trial court entered an order denying respondent\u2019s motion for reconsideration. In addition, the court pointed out that despite a court order of April 7, 1997, requesting respondent to produce financial information, respondent produced only \u201climited information\u201d in chambers, along with two of his pay stubs. It was this information that the court considered in ruling upon Alex\u2019s educational expenses. The court also noted that it considered respondent\u2019s monthly income and the parties\u2019 relative ability to contribute to Alex\u2019s educational expenses. The court observed that it relied upon the testimony of petitioner as to Alex\u2019s impairment and that petitioner\u2019s testimony was uncontradicted. Finally, the court stated that it would reconsider that portion of its order requiring respondent to contribute 70% of Alex\u2019s educational expenses for the 1998-99 academic year if respondent timely submitted to the court for its review his tax returns and W-2 forms for the years 1994 through 1997.\nRespondent appeals from the trial court\u2019s February 6, 1998, and' June 9, 1998, orders, contending (1) he is not obligated to pay nonminor support for Alex because Alex is not disabled pursuant to section 513(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/513(a)(l) (West 1996)); and (2) the trial court abused its discretion in ordering him to contribute 70% of Alex\u2019s educational expenses pursuant to section 513(a)(2) of the Act (750 ILCS 5/513(a)(2) (West 1996)).\nANALYSIS\nI\nThe first issue for our review is whether the trial court erred in determining that respondent was responsible for nonminor support for Alex on the ground that Alex was disabled pursuant to section 513(a)(1) of the Act.\nInitially, we reject respondent\u2019s contention that this issue is one of statutory construction and requires us to conduct a de novo review. A trial court has broad discretion in determining the necessity for and the amount of child support, and its decision will not be set aside unless the trial court abused its discretion or its order is contrary to the manifest weight of the evidence. In re Marriage of Winters, 160 Ill. App. 3d 277, 285 (1987). We note that in In re Marriage of Kennedy, 170 Ill. App. 3d 726, 732 (1988), the reviewing court applied an abuse of discretion standard of review in determining whether the nonminor child was disabled under section 513 of the Act.\nGenerally, child support terminates when a child reaches the age of 18. In re Marriage of Ferraro, 211 Ill. App. 3d 797, 799 (1991). However, pursuant to section 513(a)(1) of the Act:\n\u201cThe 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 support of the child or children of the parties who have attained majority ***:\n(1) When the child is mentally or physically disabled and not otherwise emancipated ***.\u201d 750 ILCS 5/513(a)(l) (West 1996).\nRespondent notes that section 513(a)(1) of the Act does not define the term \u201cmentally or physically disabled.\u201d In the absence of a statutory definition, courts will assume that statutory words have their ordinary and popularly understood meanings. People v. Anderson, 148 Ill. 2d 15, 28 (1992). Webster\u2019s Third New International Dictionary defines \u201cdisabled\u201d as \u201cincapacitated by or as if by illness, injury, or wounds.\u201d Webster\u2019s Third New International Dictionary 642 (1986).\nIn this case, the trial court concluded that Alex was mentally disabled within the meaning of section 513(a)(1) of the Act. We hold that the trial court abused its discretion in so finding.\nAlex graduated from high school in four years. During his last year of high school he received relatively high grades, scoring all \u201cA\u201ds or \u201cB\u201ds and one \u201cC.\u201d Alex took the ACT, receiving a composite score of 16. According to the ACT report, 19% of high school juniors and seniors who took the ACT scored at or below Alex\u2019s score. Alex was also accepted at junior colleges in Colorado and Utah. Further, Alex was able to obtain employment to earn money to assist in his postsecondary education. The only evidence of Alex\u2019s alleged disability was petitioner\u2019s statement that Alex was a \u201cslow learner\u201d with an IQ \u201cbordering on below average.\u201d In fact, when respondent\u2019s counsel questioned petitioner about the nature of Alex\u2019s disability, she admitted that Alex had a \u201csignificant learning disability but not on paper\u201d and that his alleged disability was not severe enough to qualify Alex for Social Security benefits.\nThis is not a case like In re Marriage of Kennedy, 170 Ill. App. 3d 726 (1988). In Kennedy, the appellate court reversed the trial court\u2019s determination that the child was not disabled pursuant to a previous version of section 513 of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 513). However, the Kennedy court was presented with evidence that the child was enrolled at a school for emotionally disturbed, behaviorally disordered, and learning disabled children after failing as a student at a public high school. Further, the clinical director of the school testified that the child suffered from a severe learning disability and had a behavioral disorder. The director also noted that the child read and spelled at a third-grade level, had a need to act out his anxieties, had a short attention span, had low verbal comprehension, and had some visual motor problems.\nRelying on In re Marriage of Winters, 160 Ill. App. 3d 277 (1987), petitioner urges us to find that respondent\u2019s failure to object to her testimony as to Alex\u2019s disability resulted in waiver of this issue. We find Winters to be distinguishable from the case sub judice. In Winters, the reviewing court affirmed the trial court\u2019s finding that the parties\u2019 minor daughter was disabled on the basis that the husband not only failed to object at trial regarding the wife\u2019s testimony that their child was disabled but also failed to make a substantive challenge on appeal as to the child\u2019s condition. In this case, respondent has made a substantive challenge to Alex\u2019s condition on appeal. We also note that, unlike the petition involved in Winters, petitioner\u2019s petition for post-high school support, while mentioning Alex\u2019s disability, does not request the continuation of child support on the basis that Alex is disabled. Further, we have already determined that petitioner\u2019s scant testimony that Alex was a \u201cslow learner\u201d with an IQ \u201cbordering on below average\u201d is insufficient to support a finding that Alex was disabled. Therefore, we reject petitioner\u2019s reliance on Winters.\nBecause we determine that the trial court abused its discretion in awarding petitioner nonminor child support on the basis that Alex was disabled under section 513(a)(1) of the Act, we need not address respondent\u2019s contention that the trial court failed to consider the statutory factors for setting nonminor support.\nII\nNext, we address whether the trial court erred in requiring respondent to contribute 70% of Alex\u2019s college tuition and costs. A trial court\u2019s decision to award educational expenses will not be reversed absent an abuse of discretion. In re Marriage of Hillebrand, 258 Ill. App. 3d 835, 840-41 (1994). While the court is authorized to order the payment of a child\u2019s college expenses, it is not required to do so. In re Marriage of Pearson, 236 Ill. App. 3d 337, 351 (1992). Section 513(b) of the Act provides that, in awarding educational expenses, the court shall consider all relevant factors, including the financial resources of both parents, the standard of living the child would have enjoyed had the marriage not been dissolved, and the financial resources of the child. 750 ILCS 5/513(b) (West 1996). However, a court should not order a party to pay more for educational expenses than he or she can afford. In re Support of Pearson, 111 Ill. 2d 545, 552 (1986). Moreover, the trial court must evaluate the party\u2019s ability to pay with regard to his resources at the time of the order. In re Marriage of Fahy, 208 Ill. App. 3d 677, 698 (1991).\nOur review of the record indicates that the trial court did consider the factors listed in section 513(b) of the Act. However, based on the record before us, we conclude that the trial court abused its discretion in ordering respondent to pay 70% of Alex\u2019s college tuition and fees. Respondent submitted to the court on April 7, 1997, a financial affidavit in which he stated that his net income is $667 per week. Respondent listed $1,945 per month in living expenses and debt payments. Petitioner does not dispute these figures. Moreover, pursuant to the trial court\u2019s February 6, 1998, order, respondent was also required to pay $136 per week in nonminor support and $99 per week in educational expenses for Alex. As a result, respondent had insufficient income to meet his monthly obligations. Since the trial court ordered respondent to pay more than he can reasonably afford, we reverse the trial court\u2019s award of educational expenses.\nOn remand, the trial court shall consider the factors listed in section 513(b) of the Act in setting respondent\u2019s contribution to Alex\u2019s educational expenses. Based on those factors, the court shall set an award that falls within respondent\u2019s economic capacity. In assessing respondent\u2019s ability to pay, the court may consider the fact that, pursuant to a separate order, respondent pays $200 per month for Vanessa\u2019s past college tuition and fees. In addition, while the court must confine its award to educational expenses, it may order respondent to contribute to Alex\u2019s reasonable living expenses pursuant to section 513(a)(2) of the Act. See Pearson, 236 Ill. App. 3d at 351; In re Marriage of Falat, 201 Ill. App. 3d 320, 327 (1990).\nCONCLUSION\nIn sum, we find that Alex is not disabled within the meaning of the Act. Further, we find that the trial court abused its discretion in ordering respondent to contribute 70% of Alex\u2019s educational expenses. On remand, the trial court is to reconsider the award of educational expenses in light of respondent\u2019s ability to pay.\nReversed and remanded with directions.\nRAPR J., concurs.", "type": "majority", "author": "JUSTICE COLWELL" }, { "text": "JUSTICE THOMAS,\ndissenting:\nWhile I concur in the majority\u2019s holding that it was an abuse of discretion to award petitioner nonminor child support on the basis that Alex was disabled, I respectfully dissent from the majority\u2019s determination that the trial court abused its discretion in requiring respondent to pay 70% of Alex\u2019s educational expenses.\nThe determination of education expenses is within the trial court\u2019s discretion. In re Marriage of Zukausky, 244 Ill. App. 3d 614, 623 (1993). A trial court abuses its discretion only when no reasonable man would take the view adopted by the trial court. In re Marriage of Puls, 268 Ill. App. 3d 882, 889 (1994). In determining the amount of an award for college education expenses, a trial court is to consider the financial resources of both parents, the standard of living the child would have enjoyed had the marriage not been dissolved, and the financial resources of the child. 750 ILCS 5/513(b) (West 1996). As the majority opinion notes, it is clear that the trial court did consider all of the foregoing factors in entering its judgment. Because the trial court properly considered these factors, I believe that the trial court acted within its discretion.\nIn concluding that the trial court did not abuse its discretion, I find it significant that any problems in determining respondent\u2019s financial resources were the result of respondent\u2019s continued failure to comply with the trial court\u2019s order that he produce his 1994, 1995, and 1996 income tax returns, his 1996 W-2 forms, and his most recent paycheck stub. The trial court stated that, in rendering its decision, it took the financial ability of both parties into account to the extent it had been furnished with information concerning their financial abilities. The court also stated that it looked at respondent\u2019s net monthly income and considered information as to some additional, albeit minimal, income that respondent received for side jobs.\nWhile it is true that a court should not order a party to pay more for educational expenses than he or she can afford (In re Support of Pearson, 111 Ill. 2d 545, 552 (1986)), I find no evidence in the record that the trial court\u2019s order would have such an effect. Respondent\u2019s April 7, 1997, financial affidavit shows a weekly gross income of $942.31, with total deductions of $550.39, leaving take-home pay of $391.92. Included within the total deductions, however, was $150 in maintenance for petitioner, which the trial court discontinued, and $136 in child support for Alex. Using respondent\u2019s financial affidavit, and even including the child support for Alex that we find was improperly awarded, respondent\u2019s monthly shortfall is less than $200. Given the fact that some of respondent\u2019s monthly expenses included payments toward credit card debt, which can be reduced, the fact that respondent does receive additional income from side jobs, and the fact that respondent receives rent deductions for work done to the home he rents, I disagree with the majority\u2019s conclusion that no reasonable man would take the view adopted by the trial court. Consequently, I would affirm the trial court\u2019s order that respondent pay 70% of Alex\u2019s college expenses.", "type": "dissent", "author": "JUSTICE THOMAS," } ], "attorneys": [ "David F. Monteleone and George E Hampilos, both of Schirger, Monteleone, Hampilos & Getz, of Rockford, for appellant.", "Stephen E. Balogh, Carol N. Bailey, and Brendan A. Maher, all of Williams & McCarthy, of Rockford, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF MARGARET ROSE THURMOND, Petitioner-Appellee, and JOHN WILLIAM THURMOND, Respondent-Appellant.\nSecond District\nNo. 2\u201498\u20140867\nOpinion filed August 11, 1999.\nDavid F. Monteleone and George E Hampilos, both of Schirger, Monteleone, Hampilos & Getz, of Rockford, for appellant.\nStephen E. Balogh, Carol N. Bailey, and Brendan A. Maher, all of Williams & McCarthy, of Rockford, for appellee." }, "file_name": "0828-01", "first_page_order": 846, "last_page_order": 854 }