In re Marriage of Truhlar

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0536 NRel

Case Date: 09/17/2010

Preview:No. 2-09-0536 Filed: 9-17-10 _________________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________________________ In re MARRIAGE OF JAMES F. TRUHLAR, ) Appeal from the Circuit Court ) of Du Page County. ) Petitioner-Appellee, ) ) and ) No. 90--D--2574 ) DEBBIE M. TRUHLAR, ) Honorable ) Brian R. McKillip, Respondent-Appellant. ) Judge, Presiding. _________________________________________________________________________________ JUSTICE HUTCHINSON delivered the opinion of the court: Respondent, Debbie M. Truhlar, appeals from an order of the circuit court of Du Page County vacating a prior order requiring petitioner, James F. Truhlar, to contribute to the college expenses of one of their children. For the reasons set forth below, we reverse. The relevant facts for the purposes of this appeal are not in dispute. In 1994, the trial court entered a judgment dissolving the parties' marriage. The judgment incorporated the parties' marital settlement agreement, which contained the following provision: "EDUCATION *** 2. The Husband and Wife shall each contribute to the costs of higher education of the children. The amount that each of the parties shall pay may be agreed upon by the parties at the time each child is to enter a school of higher education; and in the event that the parties

No. 2--09--0536 are unable to agree, the Court shall determine the amount that each party shall pay based upon each of the parties' ability to pay at that time and upon said child's desire and aptitude to enter a school of higher education. The Court shall also consider the amount that said child can contribute to the higher education in determining the contribution of each party. The contribution of each party is further conditioned on the fact that commencement of such higher education will occur within twelve months of graduation from a secondary school and terminate within sixty months of such date, excluding delays occasioned by illnesses or mandatory military service." In 2008, Debbie filed a petition seeking James's contribution to the college expenses of their daughter, Ashley, who was approaching her eighteenth birthday. Evidence adduced at the hearing on the petition established that Ashley had been admitted to National-Louis University; she had obtained substantial financial assistance in the form of grants and scholarships; she held a part-time job; and she planned to live at home as a cost-saving measure. The evidence further showed that James had remarried; his sole source of income was social security disability benefits of $1,825 per month; and his wife's monthly earnings were approximately twice that amount. On July 10, 2008, the trial court ordered James to contribute $361.25 per month toward Ashley's college education. James subsequently moved to vacate the order. In support of the motion, James argued, inter alia, that, under federal law, his social security disability benefits were beyond the reach of creditors, so there was no way to enforce the contribution obligation. The trial court agreed. Although the trial court noted authority that social security disability payments could be reached to satisfy a child support obligation, the trial court concluded that contribution to an emancipated child's college

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No. 2--09--0536 education was not child support. Debbie timely appealed after the trial court denied her motion to reconsider. Section 513 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) provides, in pertinent part: "(a) The 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 in the following instances: (1) When the child is mentally or physically disabled and not otherwise emancipated, an application for support may be made before or after the child has attained majority. (2) The court may also make provision for the educational expenses of the child or children of the parties, whether of minor or majority age, and an application for educational expenses may be made before or after the child has attained majority, or after the death of either parent. The authority under this Section to make provision for educational expenses extends not only to periods of college education or professional or other training after graduation from high school, but also to any period during which the child of the parties is still attending high school, even though he or she attained the age of 19. *** *** (b) In making awards under paragraph (1) or (2) of subsection (a), 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:

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No. 2--09--0536 (1) The financial resources of both parents. (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." 750 ILCS 5/513 (West 2008). Pursuant to this provision, the trial court originally ordered James to contribute to Ashley's college education expenses. As noted, however, James successfully moved to vacate the order, persuading the trial court that his income, which consisted of social security disability benefits, was protected by section 407(a) of the Social Security Act (the Act), which prohibits the assignment or transfer of the future payment of benefits under subchapter II of the Act and exempts any benefits paid or payable under subchapter II from "execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law." 42 U.S.C.

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