In re Razzano, 3–11–0608.

• Decision Date: 14 November 2012
• Docket Number: No. 3–11–0608.,3–11–0608.
• Citation: 980 N.E.2d 206
• Parties: In re MARRIAGE OF Brenda Lynn RAZZANO, n/k/a Brenda Lynn Gorski, Petitioner–Appellee, and Dana Louis Razzano, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

980 N.E.2d 206

In re MARRIAGE OF Brenda Lynn RAZZANO, n/k/a Brenda Lynn Gorski, Petitioner–Appellee, and Dana Louis Razzano, Respondent–Appellant.

No. 3–11–0608.

Appellate Court of Illinois, Third District.

Nov. 14, 2012.

George P. Cuonzo, Razzano Law Offices, Watseka, IL, for appellant.

Christopher Bohlen, Barmann, Bohlen, Jacobi & Cieslik, PC, Kankakee, IL, for appellee.

Justice CARTER delivered the judgment of the court, with opinion.

¶ 1 The petitioner, Brenda Lynn Razzano, now known as Brenda Lynn Gorski, filed a motion to modify child support, alleging changes in circumstances in the income of her ex-husband, Dana Louis Razzano, and in the needs of the parties' two children, Maria and Joseph. Brenda also filed, in the alternative, a petition for educational support. The circuit court granted Brenda's motion to modify child support, and Dana appealed. On appeal, Dana argues that the court erred when it modified child support pursuant to section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/505(a) (West 2004)), rather than under section 513(a)(2) of the Act ( 750 ILCS 5/513(a)(2) (West 2004)). We affirm.

¶ 2 FACTS

¶ 3 Brenda and Dana married in February 1983. They had two children during the marriage, Maria, born in 1986, and Joseph, born in 1989. In 1992, the parties divorced. A separation agreement (the Agreement) entered into by the parties was incorporated by the circuit court into the judgment of dissolution of marriage. In the Agreement, the parties agreed that Brenda would have custody of the children. They also agreed that Dana would pay Brenda $600 per month in child support, and that "[Dana's] obligation for the support and maintenance of each child shall continue until the child attains full emancipation as defined in this Agreement." In relevant part, the Agreement defined emancipation as including "the child's reaching age twenty-two (22), so long as the child is attending college full-time, or completing college, or terminating full-time attendance at college, whichever shall first occur."

¶ 4 The Agreement also contained two provisions on education expenses for the children: (1) "[Brenda] shall assume responsibility for the expenses of education of the minor children, including day care and private school expenses"; and (2) "[t]he parties have made no agreement regarding the expenses of education beyond primary education." However, the parties crossed out the second provision and replaced it with a handwritten provision initialed by the parties that read: "[t]he parties have agreed that the support provision below is in lieu of any other obligation by [Dana] for education support."

¶ 5 On September 12, 2005, Brenda filed a motion to modify child support, in which she alleged that two changes in circumstances had occurred: (1) Dana's income had substantially increased; and (2) the costs of raising the children had increased. Brenda also filed, in the alternative, a petition for educational support, in which she requested a contribution from Dana for Maria's post-secondary-education expenses.

¶ 6 After lengthy procedural delays, Brenda filed supporting memoranda in 2010. In one memorandum, Brenda argued that the language of the Agreement defining support intended to cover post-secondary-education expenses as well, and requested a modification order requiring Dana to pay for support accrued during Joseph's minority as well as post-secondary-education expenses for both children. Alternatively, she argued in a second memorandum that Dana should be ordered to pay a portion of the children's education expenses pursuant to section 513(a)(2) of the Act ( 750 ILCS 5/513(a)(2) (West 2004)).

¶ 7 At the hearing on the motions, neither of the parties appeared. Initially, the attorneys discussed and reached stipulations on the exact amounts of income and expenses that were relevant to the circuit court's decision, including what Dana would owe if the court determined that the child support guidelines in section 505 of the Act were applicable. Next, the attorneys presented their arguments on the issue of postminority expenses. In his primary argument, Brenda's attorney argued that the court should use the child support provision from section 505 of the Act to calculate Dana's contribution, as the support provision in the Agreement treated expenses incurred up to the children reaching age 22—including education expenses—as being a part of what was covered by child support. He stated:

"So the support provision is, assuming that's controlling, and I have to candidly say that I think if [the now-deceased attorney who represented Brenda during the divorce proceedings] were here, alive and be able to talk—talk about this as me and use the best of our memories, we'd tell you that that had nothing to do with post-high school education. But we are—the language is sufficient to cover it and my client is willing to accept it on that basis because of the ease that it allows the calculation to be done and regardless of what's been spent by either party."

¶ 8 Dana's attorney argued that it did not matter whether the circuit court considered the postminority expenses to be child support or education expenses. Dana's attorney reasoned that because section 505 of the Act provides that child support obligations end when the child attains the age of majority, the education-expense provision in section 513 of the Act would have to be used to determine Dana's contribution.

¶ 9 After taking the matter under advisement, the circuit court issued a ruling in which it stated:

"The Court finds and holds that the plain meaning of the Agreement is that the parties intended [Dana's] payment obligation to be construed as an obligation to pay child support up to the occurrence of an emancipating event as defined in the Agreement. [Dana's] obligation shall be interpreted in that light. The Court further holds that [Dana's] child support obligation is modifiable and that the same shall be accomplished through the application of [the section 505] statutory guidelines."

Accordingly, the court entered judgment in favor of Brenda and ordered Dana to pay a modified amount of child support pursuant to section 505, rather than section 513.

¶ 10 Dana appealed after the circuit court denied his motion to reconsider.

¶ 11 ANALYSIS

¶ 12 On appeal, Dana argues that the circuit court erred when it modified child support pursuant to section 505(a) of the Act, which provides that child support payments will generally be based on a percentage of the paying parent's income unless the court determined that a deviation was appropriate ( 750 ILCS 5/505(a) (West 2004)). Specifically, Dana contends that because section 505(a)'s guidelines apply to child support obligations only when the children are under age 18 or under age 19 if they are still in high school ( 750 ILCS 5/505(a) (West 2004)), the court should have used section 513 when it modified his child support obligation, as section 513 specifically applies to education expenses accruing after a child reaches the age of majority ( 750 ILCS 5/513 (West 2004) ).

¶ 13 Generally, with regard to whether the circuit court's decision to modify child support was erroneous, we review that decision for an abuse of discretion. In re Marriage of Rogers, 213 Ill.2d 129, 135, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004). At issue in this case, however, is the interpretation and effect of the parties' Agreement, which was incorporated into the dissolution judgment, as it relates to whether section 505 or section 513 controls. As noted by our supreme court in in rE marriage oF coulter, 2012 IL 113474, ¶ 19, 364 ilL.dec. 59, 976 N.E.2d 337, "[a] [joint parenting agreement], like a marital settlement agreement * * *, is a contract between the parties and, as such, a court's primary objective is to give effect to the intent of the parties, which must be determined only by the language of the agreement, absent an ambiguity." This issue presents a question of law that we review de novo. Id.

¶ 14 In relevant part, section 502(a) of the Act states that "[t]o promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of * * * support * * * of their children." 750 ILCS 5/502(a) (West 2004). The terms of such agreements "are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms." 750 ILCS 5/502(e) (West 2004). Further, the terms of such agreements that relate to child support may be modified. 750 ILCS 5/502(f) (West 2004) ("[e]xcept for terms concerning the support * * * of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides"); 750 ILCS 5/510 (West 2004) (providing circumstances under which child support can be modified). Our supreme court has recently discussed the significance of these types of agreements in Marriage of Coulter, 2012 IL 113474, 364 Ill.Dec. 59, 976 N.E.2d 337.

¶ 15 In Marriage of Coulter, the parties entered into a joint parenting agreement, which was incorporated into the judgment of dissolution. Id. ¶ 3. In that agreement, the parties agreed that the mother could remove the children to California if certain conditions were met. Id. Just short of two years after the dissolution judgment, when the mother informed the father of her intention to remove the children to California, the father attempted to block the removal via injunction. Id. ¶¶ 4–5. The circuit court denied the father's petition for an injunction, and the father appealed. Id. ¶¶ 5, 7. In an unpublished opinion, this court acknowledged that the joint parenting agreement existed; however, this court still reversed, finding that the father met the requirements for an injunction. Id. ¶ 9.

¶ 16 On appeal, our supreme court held that ...