In re Marriage of Deike

• Decision Date: 03 April 2008
• Docket Number: No. 4-07-0256.,4-07-0256.
• Citation: 887 N.E.2d 628
• Parties: In re the MARRIAGE OF Robert J. DEIKE, Petitioner-Appellant, and Marshella M. Deike, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

887 N.E.2d 628

In re the MARRIAGE OF Robert J. DEIKE, Petitioner-Appellant, and Marshella M. Deike, Respondent-Appellee.

No. 4-07-0256.

Appellate Court of Illinois, Fourth District.

April 3, 2008.

Justice KNECHT delivered the opinion of the court:

Petitioner, Robert J. Deike, appeals from an order (1) requiring him to pay one-half of his three children's college expenses; (2) denying his request to reduce child support, except as to the requirement he maintain health insurance on the children and (3) finding him in indirect civil contempt for failure to (a) pay one-half of the children's college expenses in a timely manner and (b) remain current with child-support obligations. We affirm as modified.

I. BACKGROUND

Robert and respondent, Marshella M. Deike (now Goben), were married on October 17, 1981. Three children were born of the marriage, Brennon, born July 7, 1984; Ashley, born March 19, 1986; and Paige, born August 6, 1987. On October 19, 1994, the trial court entered a judgment for dissolution of marriage incorporating a marital settlement agreement. The marital settlement agreement provided each party agreed to pay 50% of the children's college expenses; Robert agreed to pay Marshella $312.50 in child support every two weeks; and each party agreed to keep the children covered under his or her employer-provided health-care plan.

At the time of the dissolution, Robert was employed by Diamondstar Motors (now Mitsubishi) and Marshella was employed at State Farm Insurance Companies. In January 2004, Mitsubishi decided to downsize and Robert's position was eliminated in February 2004. He received a severance package of 38 weeks worth of pay and health insurance. He also received unemployment insurance benefits until about October 2004.

The parties' oldest child, Brennon, began college at Augustana College in the fall of 2003. The parties' two daughters were in high school.

On June 18, 2004, Marshella filed a petition regarding educational expense asking the court to define the term "college expenses" in the provision of the marital settlement agreement requiring each party to pay 50% of the children's college expenses. That same date Marshella filed a petition for modification of child support asking Robert be required to contribute to the medical and dental insurance expenses for the children and for such other relief as deemed just by the trial court. Finally, also on June 18, 2004, Marshella filed a petition for a finding of indirect civil contempt for failure to pay child support because Robert was two weeks in arrears on his child-support payments.

On August 11, 2004, Marshella filed an amended petition regarding educational expense in which she requested the trial court include reasonable contribution toward living expenses during the summer months be included in the definition of "college expenses" in the provision of the marital settlement agreement requiring each party to pay 50% of the children's college expenses. On September 30, 2004, Robert filed a petition to reduce child support to not only reduce his child-support amount but also to eliminate the requirement he maintain health insurance through his employer.

On October 13, 2006, Robert filed a petition to modify post-high-school financial support in relation to the provision of the marital settlement agreement requiring each party to pay 50% of the children's college expenses. On November 7, 2006, Marshella filed a second amended petition regarding educational expense as all three of the children were now in college and the term "college expenses" in the provision of the marital settlement agreement requiring each party to pay 50% of the children's college expenses still needed to be defined. That same day Marshella also filed an amended petition for adjudication of indirect civil contempt relating to Robert's willful failure to pay one-half of the children's college expenses.

On January 19, 2007, the trial court heard evidence concerning all pending petitions. At the time of the hearing, all three children were attending college. Brennon was a senior in his final semester at Augustana College; Ashley was a freshman at Lincoln College in Normal and was a commuter student, living with Marshella; and Paige was a freshman at Augustana College, living on campus.

Testimony in regard to Brennon's college expenses was he received $12,671 per year in grants and scholarships and $1,350 per year in federal work study, which required him to work to receive that money. He also earned between $1,424 and $2,237 each summer while in college. Based on Marshella's exhibits, Robert still owed $9,856.12 through the first semester of Brennon's senior year.

Marshella testified at that time Robert owed her $2,931.92 as his share of college expenses for Ashley's first semester. A full-time commuter student at Lincoln College can expect to pay $15,810 in tuition and fees per academic year. Ashley is receiving a scholarship of $3,500 per year. Marshella presented exhibits from Lincoln College and Illinois State University (ISU) showing the out-of-pocket expenses for a full-time commuter student were $3,425 and $6,994, respectively. Marshella requested Ashley's living expenses for college be calculated at the $3,425 level. Ashley worked throughout high school and earned between $2,970 in 2003 and $7,358 in 2005. She now works one eight-hour day per week while in college.

As for Paige's expenses, Marshella testified Robert's 50% share of college expenses still owed through December 10, 2006, was $6,930.75. Paige works 8 to 10 hours weekly while at school and receives the same amount of financial assistance as Brennon, approximately $12,000 per school year. Marshella asserted, without any documentation, the cost for Brennon and Paige to attend Augustana College, after deducting grants, scholarships, and work study is significantly less than it would have been to attend the University of Illinois and not receive any scholarships and grants.

Marshella also requested reimbursement of $577.97, one-half of the added expenses she incurred during 2 1/2 months of summer when the three children resided with her. She testified Robert was also $2,187.50 in arrears in his child-support obligations.

After the parties' divorce, Marshella set up savings accounts on behalf of the children to save for college expenses. She used these to pay for a portion of her 50% contribution to their expenses and depleted them completely during the girls' first semester in college.

At the time of the hearing, Marshella was earning approximately $57,000 per year at her job at State Farm. At the time of the dissolution, 14 years earlier, she made approximately $30,000 per year. Including the expenses she incurred for the children's college education, Marshella's average monthly expenses totaled $5,350.74, while her net monthly income from all sources was only $2,361.95.

Marshella testified when the girls decided to attend college, they did not discuss their college selections with Robert. Ashley decided to go to Lincoln because she received a $3,500 scholarship and she liked the school. She wanted to attend Lincoln instead of Parkland College because she could use the facilities at ISU if she chose to transfer there. Paige decided to attend Augustana because she liked the campus, her brother attends there, it asked her to run cross-country although it did not give athletic scholarships, and she would have opportunities there to do research in her chosen major, biology.

Robert had a college degree and educational experience in computer-aided drafting and pre-engineering courses. He was a staff engineer when last employed at Mitsubishi and had previous employment experience as a contract draftsman as well as a maintenance mechanic and in project management. In 2004, Robert reported net earnings of approximately $47,000. Robert testified when he was laid off in 2004, he applied to 25 to 30 engineering firms in Central Illinois, Wisconsin, Minnesota, and North Dakota.

In late fall 2004, Robert and his current wife, Sue, purchased property in Ada, Minnesota, containing a bar and grill with a small apartment upstairs for $32,000. They put $16,000 down on the property and at the time of the hearing in January 2007 the balance on the property was approximately $15,000. Robert and Sue decided to become self-employed by operating the bar and grill when Robert was having trouble finding work in his field. Robert previously lived in Minnesota and had family there. Sue had previous experience working in the restaurant industry. In addition to the mortgage, Robert testified he and Sue spent $5,922 and $11,087 for new equipment and remodeling during the first year they owned the bar and grill.

Robert also owns a cabin on a lake in Minnesota which he inherited from his parents. In July 2006, when Robert obtained a $23,000 mortgage on the lake property, it appraised at $120,000. As of the hearing, Robert testified as an adverse witness the mortgage was then approximately $20,000. Robert also owns a 16-foot outboard motorboat worth $6,000 he uses at the cabin and two snowmobiles. Robert also owns property in LeRoy, Illinois, containing four commercial buildings. The property previously contained a gas station and was found to have soil contamination after his purchase. Although he at one time was asking $57,000 for the property, now he would simply like to get the value of the mortgage he still owes, $35,000, but he was having a hard time selling the property.

Robert testified the bar and grill lost $28,000 in 2005 and he anticipated a loss for 2006 but not as great a loss.

In January 2006, Robert took out a $10,000 parent loan to pay for some of Brennon's college tuition. The loan proceeds were sent directly to Augustana but since all $10,000 was not needed at that time, approximately $4,000 was refunded to Robert. The $4,000 returned to Robert was not used for college expenses. Robert...