Baumgartner v. Baumgartner
| Decision Date | 31 March 2014 |
| Docket Number | Nos. 1–12–0552,1–12–0779.,s. 1–12–0552 |
| Citation | 380 Ill.Dec. 841,9 N.E.3d 91,2014 IL App (1st) 120552 |
| Parties | In re MARRIAGE OF Susan Lynn BAUMGARTNER, Petitioner–Appellant, and Craig Baumgartner, Respondent–Appellee. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Richard B. Kirk, Schirger Law Offices, LLC, Rockford, for appellant.
Julie Campbell, Poulos Black PC, Evanston, for appellee.
¶ 1 The petitioner, Susan Lynn Baumgartner (Susan), appeals from orders of the circuit court of Cook County denying her amended petition to enforce the post high school educational provisions of the judgment for dissolution of marriage and granting the amended cross-petition of the respondent, Craig Baumgartner (Craig), terminating the parties' obligation to provide those expenses for the parties' son, Maxwell Baumgartner (Max). In a separate appeal, Susan appeals from the dismissal of her petition for adjudication of indirect criminal contempt against Craig. The two appeals have been consolidated for review.
¶ 2 On appeal, Susan contends that: (1) the trial court erred when it considered Craig's reinstated petition; (2) the evidence supported the enforcement of the dissolution judgment's educational support provision for Max; and (3) the trial court erred when it sua sponte ordered her contempt petition against Craig stricken. For the reasons stated below, we affirm the judgment of the circuit court.
¶ 5 A brief history of this litigation is necessary to place the issues raised on appeal in the proper context. The marriage of the parties was dissolved in 1998. See In re Marriage of Baumgartner, 384 Ill.App.3d 39, 322 Ill.Dec. 337, 890 N.E.2d 1256 (2008) ( BaumgartnerI ) (). A provision in their marital settlement agreement, which was incorporated into the judgment for dissolution of marriage, provided as follows:
“2.16 CRAIG and SUSAN shall be responsible for post high school educational expenses for [Max] as provided by the applicable section of the Illinois Marriage and Dissolution of Marriage Act in force when Max is ready to incur these expenses. CRAIG shall continue to maintain the Florida Pre–Paid tuition and dorm college account with combined deposits currently valued at $4000.00. The Parties' obligation for college educational expenses will be reduced by the value of this account when Max begins his post high school education.
2.17 The Parties' obligation in this regard shall only be conditioned upon the ability to pay these expenses when incurred, and [Max's] desire and ability to further his education.”
¶ 6 Following his 2005 graduation from New Trier High School (New Trier), Max briefly attended Oakton Community College (Oakton). In 2007, he was charged with and subsequently convicted of two felonies and sentenced to prison for three years. In 2008, Craig filed a petition seeking to terminate the parties' obligation under the dissolution judgment to fund Max's post high school educational expenses. The circuit court terminated Craig's obligation to contribute to Max's post high school educational expenses on the sole basis of Max's incarceration.
¶ 7 A majority of this court reversed the circuit court's order, holding that there was no authority in Illinois that recognized incarceration as a self-emancipating event such as marriage or military service. See In re Marriage of Baumgartner, 393 Ill.App.3d 297, 332 Ill.Dec. 296, 912 N.E.2d 783 (2009) ( BaumgartnerII ) (Wolfson, J., dissenting). Craig's petition for leave to appeal to our supreme court was granted.
¶ 8 On review, the supreme court affirmed our decision and remanded the case to the circuit court. Holding that Max's criminal activity, by itself, was not dispositive as to whether Max was emancipated, the court noted that the record contained no evidence pertaining to Susan's and Craig's care, custody, control and support of Max and whether Max voluntarily abandoned that support. The court instructed the circuit court to consider “the extent to which Max's incarceration constitutes changed circumstances, warranting a modification of the dissolution judgment for both parties.” In re Marriage of Baumgartner, 237 Ill.2d 468, 488, 341 Ill.Dec. 510, 930 N.E.2d 1024 (2010) ( BaumgartnerIII ).
¶ 10 On remand, the trial court held a hearing on Susan's amended petition to enforce the educational expenses provision of the judgment and Craig's amended cross-petition to terminate the parties' obligation for those expenses. The following is a summary of the relevant testimony.
¶ 12 In 2004, when Max was a junior at New Trier, Craig, who resided in California, wrote to Max, Susan and Susan's husband, Stephen Ginensky (Stephen), advising them of the availability of the Florida prepaid college plan (the Florida plan). He reminded them that in response to his earlier questions concerning Max's preparation and plans for college, they had told him that those issues were being addressed. After Craig received no response to the letter, he sent a follow up e-mail, which included the names of and contact information for Max's post high school counselors. He did not receive a response to his e-mail.
¶ 13 Craig had no communication with Max after Max graduated from New Trier in 2005. Craig obtained Max's transcripts from his senior year at New Trier, which showed that Max graduated at the bottom of his class. In searching the Internet, Craig learned that Max was attending Oakton in the fall of 2005, and he obtained a transcript of Max's grades at Oakton: English 101—D, English 102—F, psychology—B, and sociology—F. Max's grade-point average was 1.00. Neither Max nor Susan requested to use the Florida plan to pay for the tuition at Oakton, and neither of them informed Craig that Max also took classes at Oakton in 2007. Max's 2007 transcript from Oakton showed the following courses and grades: he repeated English 102 and received an F, Humanities Introduction to Philosophy—D, Psychology of Abnormal Behavior—D. His grade-point average for 2007 was 1.00.
¶ 14 In 2006 and 2007, Craig was notified by a family member that Max had been arrested. The parties stipulated that Max was convicted of two felonies, for which he served time in prison.
¶ 15 In 2008, Craig filed his petition to terminate the parties' obligation for Max's college expenses. His request for termination was based on Max's failure to exhibit any desire or ability to attend college and Max's failure to communicate with him about his plans for his post high school education. After the circuit court terminated his educational support obligation for Max, on the advice of his attorney, Craig terminated the Florida plan account. Craig was never informed that Max wished to use the Florida plan for college until 2010, when Susan filed her petition to enforce the educational payment provisions of the dissolution judgment.
¶ 16 After Max was released from prison in 2009, Craig learned from the Internet that Max was engaged to be married and had a son, Kaiden Maxwell Baumgartner, born January 5, 2010. The parties stipulated that Kaiden was Max's son, and the mother was Ashley Nicole Little (Ashley). Craig maintained it would be a financial hardship if he were ordered to pay Max's college expenses.
¶ 17 Craig acknowledged that the educational expenses provision in the dissolution judgment did not require Max to utilize the Florida plan or to notify Craig that he wished to use it. He did not know what Max's class rank was when he graduated from New Trier. The Florida plan was fully paid for in July 2005. Craig was never required to provide the plan with Max's address. When Craig received information regarding the Florida plan, he forwarded it to Max. Following Max's graduation from New Trier, Susan, Stephen and Max moved but did not notify Craig of their new address. The trial court observed that there was documentation that Craig had the means to contact Susan.
¶ 19 Susan did not recall receiving Craig's 2004 letter or the follow up e-mail he sent. After Max graduated from New Trier, she did not keep in contact with Craig. Susan did not believe that the Florida plan could be used for Max's Oakton expenses, but she never contacted the plan to confirm that it could not be used. Susan did not remember when she first notified Craig that Max wanted to attend college. After his release from prison in January 2009, Max could not get a job, and he needed to go back to school. Susan filed her petition to enforce the payment of Max's educational expenses because she wanted him to go to college.
¶ 20 Susan had been unemployed for the previous two years. Max lived with Susan and Stephen, but Susan had no proof of any expenses for him that she paid.
¶ 21 According to Susan, Max was very immature when he attended Oakton in 2005, and his study habits were poor. Susan talked to Max about his grades at Oakton but did not remember what she said to him. She was aware of the Florida plan and was sure she discussed it with Max. Susan acknowledged that Ashley lived with her while she was pregnant with Kaiden, but she could not recall when or for how long. While Max and Ashley were “engaged,” Max told Susan that he did not think they would marry.
¶ 22 Max had not yet applied to any four-year college or university. In 2011, he attended Rock Valley Community College (Rock Valley), but Susan could not afford the tuition for the summer term. The trial court noted that Craig had paid for Max to attend Rock Valley for a semester. While at Rock Valley, Max received two A's, a B and a C, though Susan could not recall what courses he took. He also took classes while he was in prison. Susan believed that Max wanted to complete a four-year degree.
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