Opinion
1-21-0121
09-30-2021
DIANA SCHROEDER, Petitioner-Appellee, v. MICHAEL SCHROEDER, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 08 D 10202 Honorable Regina Scannicchio, Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Rochford and Martin concurred in the judgment.
ORDER
REYES, PRESIDING JUSTICE.
¶ 1 Held: Affirming the judgment of the circuit court of Cook County requiring former spouse to contribute to his non-minor child's college expenses.
¶ 2 Michael Schroeder (Michael) appeals from a judgment of the circuit court of Cook County requiring him to pay a portion of his non-minor child's expenses which include tuition, room, and board. He contends that the circuit court erred by: (a) awarding college contribution costs outside of his marital settlement agreement (MSA) with his former spouse Diana Schroeder (Diana); (b) applying section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/513 (West 2020)), which addresses educational expenses for a non-minor child; and (c) declaring certain language in the section of the MSA which addressed college contribution to be "not conscionable." For the reasons discussed herein, we affirm.
¶ 3 BACKGROUND
¶ 4 The Marital Settlement Agreement Executed in 2009
¶ 5 Michael and Diana married in 1997 and had two children, Emily (born in 2001) and Amanda (born in 2003). Diana filed a petition for dissolution of marriage in 2008 in the circuit court of Cook County. The circuit court entered a judgment for dissolution of marriage on May 1, 2009, incorporating the MSA which was executed by both parties. The children resided with Diana, and Michael was ordered to pay $478.87 every two weeks as child support.
¶ 6 Section 13 of the MSA addressed college education. Michael and Diana agreed, in part, that they would each be responsible for the children's college education according to their respective abilities to contribute. Section 13 further provided as a condition of their parental contribution that the children shall apply for all reasonably available grants, loans, school scholarship and work-study programs. The parties agreed that the obligation would end on each child's 23rd birthday.
¶ 7 The Proceedings Initiated in 2019
¶ 8 On September 24, 2019, Michael filed a petition to modify child support pursuant to section 510 of the Act (750 ILCS 5/510 (West 2018)), which addresses the modifications and termination of provisions for maintenance, support, educational expenses, and property disposition. He requested a termination of his child support obligation as to Emily - who had turned 18 years old - and a recalculation of his child support obligation as to Amanda. Diana subsequently filed a response admitting the allegations in Michael's petition and agreeing that Michael's child support obligation should be modified due to Emily's emancipation.
¶ 9 Emily began attending college at DePaul University (DePaul) in the fall of 2019. Diana filed a petition for rule to show cause on October 9, 2019, based on Michael's failure to contribute to Emily's college education expenses in accordance with the MSA except for a single $250 payment he made directly to Emily. Diana stated that her gross annual salary as an employee of the Chicago Public Schools (CPS) was approximately $35,000. She believed Michael earned approximately $100,000 per year as an employee of the Cook County Department of Transportation and Highways. Diana represented that Michael's failure to contribute placed her under financial distress. She requested, in part, the issuance of a rule to show cause as to why Michael should not be held in contempt of court. She was also seeking an order requiring Michael to pay an equitable portion of Emily's college costs and expenses pursuant to the terms of the MSA.
¶ 10 Michael responded that his annual salary was $76,808. He represented that despite his requests to be included, he was not involved, nor did he participate in Emily's college selection process. Michael admitted knowledge of Emily's attendance at DePaul but stated that his first indication of her college costs was when he received Diana's petition for rule to show cause. He represented that he had made two $250 payments to Emily in response to her request for assistance. He was later advised that a student loan was obtained. Michael acknowledged an obligation to contribute to Emily's college costs as provided in the dissolution order but denied any willful violation of the order based on, among other things, the lack of specificity as to the amount he owed.
¶ 11 Initial Hearing and Diana s Amended Petition for Rule to Show Cause
¶ 12 On August 18, 2020, Diana's counsel represented to the court that the parties had reached an agreement that Michael's child support obligation would be reduced to $790 per month. The parties then proceeded to a hearing on Diana's petition for rule to show cause. Diana testified that Emily had received $25,162 in scholarships and grants for her freshman year at DePaul, leaving an outstanding balance of $15,389 for the year. Diana anticipated that her daughter would receive substantially the same scholarships for her sophomore year. According to Diana, Michael was aware Emily was attending DePaul but did not contribute any funds toward her tuition or fees. To pay the balance of $15,389, Diana obtained a Parent Plus loan in the amount of $20,000. Diana testified that, as of the date of the hearing, she had $24.00 in her checking account and for the first time had not made her mortgage payment. Although she had previously supplemented her CPS income by working as a security supervisor at music venues, such work had ceased due to the COVID-19 pandemic. During cross-examination, she acknowledged that she did not share any documentation regarding her Parent Plus loan with Michael.
¶ 13 Michael testified that he earned $86,672.80 in 2019. He was remarried, and his current wife was employed. Michael also had a monthly mortgage obligation of $2625 and an aggregate of $20,000 in credit card and other personal debt. He had approximately $300 in his checking and savings accounts at the time of the hearing. Although Emily had shown him a spreadsheet of the colleges to which she had applied and the grants and scholarships she received, Michael testified that he and Diana were not in communication, nor was he included in the college application process. Diana and Emily "unilaterally" determined which college Emily would attend.
¶ 14 Michael provided Emily monthly checks in the amount of $250 from September 2019 until June 2020, which he instructed her to utilize for her tuition. According to Michael, Emily initially informed him that she was going to take out a student loan but subsequently indicated that Diana had taken out the loan instead. Michael testified that Emily was working and should contribute to her education. When questioned regarding the provision in section 13 of the MSA requiring the children to apply for all reasonably available grants, loans, school scholarship and work-study programs as a condition of parental contribution, he opined that Emily had made a reasonable effort only as to scholarships and grants. Michael believed that his obligation to contribute to her college expenses was not triggered as she had not applied for loans and work-study programs. He objected to his daughter attending DePaul, as her classes were online due to COVID-19 and a less expensive online education was available elsewhere. He also testified that Emily could have attended another college for less cost based on her grants and scholarships.
¶ 15 At the conclusion of the hearing, the circuit court entered a written order continuing the hearing, permitting Diana to file an amended petition, and setting a discovery schedule regarding the allocation of section 513 costs and expenses. Diana filed an amended two-count petition, where in count I she sought a petition for rule to show cause. Count II was styled as a motion to allocate section 513 costs and expenses between the parties. In count II, Diana set forth that: (a) she earned one-third of Michael's income; (b) she was not remarried and had no additional adults to supplement her finances; (c) the MSA did not designate a specific amount for each party's contributions to Emily's costs and expenses under section 513, and thus the circuit court was required to make that determination; and (d) Emily resided at home with Diana rather than living on campus and therefore the University of Illinois standard for living costs and expenses of $11,700 (as provided in section 513) should be applied and divided between the parties. Michael requested that the circuit court deny the motion.
¶ 16 Michael s Motion to Modify College Contribution
¶ 17 On October 30, 2020, Michael filed a motion pursuant to sections 510 and 513 of the Act, requesting that the court modify the terms of the parties' agreed-upon college contributions. Michael contended that the terms of the college cost allocation in the MSA differ significantly from those outlined in the current version of section 513. According to Michael, there had been substantial changes since the parties' entry into the MSA which warranted a modification of section 13, including: (a) the increase in the cost of attending DePaul from $26,348 in 2009 to $42,467 for the 2020-2021 school year; and (b) the improvement in Diana's ability to contribute toward their children's college expenses. Michael represented that Emily's decision to go to DePaul resulted in insufficient resources for her younger sibling Amanda to potentially attend college. Given the "skyrocket[ing]" costs of a college education, Michael requested that the court modify the MSA to cap tuition at an in-state university and to place cost caps on future contribution. Michael also requested that the court modify the MSA to allow the court to have discretion to deny future requests for college contribution.
Although both Michael and Diana filed documents in the circuit court referring to "section 12" of the MSA, the parties clearly intended to reference section 13, which addressed college contribution.
¶ 18 Additional Hearings and Judgment
¶ 19 During proceedings in December 2020, Diana testified that Emily was a good student in high school. Diana and Emily completed a Free Application for Federal Student Aid (FAFSA) form, and Emily applied for all types of financial aid at the various colleges which she had considered, including DePaul. After reviewing the total amount of scholarships and grants received by Emily, Diana took out Parent Plus loans in the amount of $20,000 for Emily's freshman year and $8000 for her sophomore year at DePaul. Diana also owed approximately $36,450 on her own student loans from her undergraduate education.
¶ 20 Michael testified that he shared a residence with his second wife, Lisa Schroeder (Lisa). Citing In re Marriage of Drysch, 314 Ill.App.3d 640 (2000), the circuit court overruled his counsel's objection to questions pertaining to Lisa's employment and income. Michael testified that Lisa earned approximately $50,000 or $55,000 as a park district recreation supervisor. His checking account contained approximately $1200 as of the date of the hearing.
¶ 21 After hearing the parties' testimony and counsels' arguments, the circuit court granted Michael's motion for a directed finding as to Count I - the petition for rule to show cause.
¶ 22 During the hearing, Michael's counsel called Emily as an adverse witness. Emily testified that she was a full-time student at DePaul - earning As and Bs as a sociology major -and was also employed at a Jewel-Osco grocery store earning $14 an hour. She worked at the store approximately 25 hours per week during the school year and 40 hours per week during her summer and winter breaks. Although she had applied for financial aid and completed a FAFSA form, Emily testified that she did not apply for student loans at DePaul as the amount of subsidized and unsubsidized loans they wanted to provide her would not cover the amount she needed for tuition. She acknowledged that her mother had applied for a Parent Plus loan and her father had provided her with 10 monthly checks each in the amount of $250. Other than the $250 checks, Michael had not otherwise offered to assist her in paying for college.
¶ 23 Michael's counsel next called Diana as an adverse witness. Counsel questioned Diana regarding entries in her bank statements and financial disclosures, including the liquidation of certain real estate. Diana testified that she and her brother split the proceeds of the sale of her mother's two-flat building after her passing. Diana then used the proceeds to make a down-payment on her residence in 2018; she also gave approximately $1500 to each of her daughters.
¶ 24 At the conclusion of the proceedings, the circuit court rejected Michael's argument that Emily was required to apply for student loans before his college contribution obligation was triggered. After observing that Emily had obtained an unusually large amount of college funding through scholarships and grants, the circuit court opined that it would not be a reasonable or conscionable decision to also require her to incur indebtedness through student loans. As to Emily's living expenses, the court noted that housing and meal expenses under section 513 of the Act were to be based on Emily's actual costs as a commuter student living at home.
¶ 25 The circuit court entered an order on January 8, 2021, which provided, in part, as follows. Emily's college tuition costs were divided 65% to Michael and 35% to Diana. As the total amount paid by Diana for Emily's freshman and sophomore year tuition was $22,146, Michael owed Diana 65%, or $14,395. Michael was ordered to pay the balance of Emily's tuition after scholarships and grants for her junior and senior years, which would then be reallocated based on the 65/35 division after Emily's graduation. Emily's monthly room and board costs of $1093 were also to be divided 65% to Michael and 35% to Diana. As Emily's room and board costs totaled $18,581 for the 17-month period from September 2019 through January 2021, Michael owed Diana 65%, or $12,077.65. Michael was awarded a total credit of $5,965.84, consisting of overpaid child support ($3,465.84) and the ten checks to Emily ($2500). The order further provided that Michael withdrew his pending motion to modify his college support obligation. In a separate order, the circuit court modified Michael's monthly child support obligation to $790, as previously agreed by the parties. Michael filed this timely appeal.
¶ 26 ANALYSIS
¶ 27 Michael advances multiple arguments on appeal. First, he contends that the issue of whether a party may seek section 513 relief outside of the terms of the MSA was not "properly teed up." Second, he asserts that the circuit court erred in applying section 513 to the MSA. Third, he argues that the circuit court erred when it found the portion of the MSA addressing college contribution to be "not conscionable." In the alternative, Michael contends that if the circuit court did not err in declaring a portion of the MSA to be unconscionable, "it was central to the parties['] contribution clause."
¶ 28 Under section 513 of the Act, a court may award educational expenses for adult children for college or professional training. In re Marriage of Wilhelmsen, 2019 IL App (2d) 180898, ¶ 6; 750 ILCS 5/513 (West 2020). Section 513 expenses are a form of child support. In re Marriage of Petersen, 2011 IL 110984, ¶ 13. The interpretation of section 513 presents a question of law, which we review de novo. Wilhelmsen, 2019 IL App (2d) 180898, ¶ 6. The interpretation of the MSA is also a question of law and is reviewed de novo. Blum v. Koster, 235 Ill.2d 21, 33 (2009) (noting that a marital settlement agreement is construed in the manner of any other contract, and the court must ascertain the intent of the parties from the language of the agreement). See also In re Marriage of Solecki, 2020 IL App (2d) 190381, ¶ 53 (stating that both statutory and contract interpretation present a question of law subject to de novo review). We review the circuit court's factual findings under the manifest weight of the evidence standard, but we review the ultimate decision on whether to award educational expenses under an abuse of discretion standard. People ex rel. Sussen v. Keller, 382 Ill.App.3d 872, 878 (2008). See also Wilhelmsen, 2019 IL App (2d) 180898, ¶ 6 (providing that an abuse of discretion standard of review applies to the determination of an award of educational expenses); Street v. Street, 325 Ill.App.3d 108, 115 (2001) (noting that the allocation of educational expenses between the parties is reviewed for an abuse of discretion). The circuit court abuses its discretion only where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the court. In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997, ¶ 22.
¶ 29 Whether Section 513 Relief Was Properly Presented
¶ 30 Michael initially contends that the issue of whether a party may seek section 513 relief outside of the terms of the MSA was not "properly teed up." According to Michael, Diana did not seek separate relief outside of the MSA and he was not on notice that such relief was contemplated. As discussed below, we reject Michael's contentions.
As discussed further below, we also reject Michael's attempt to characterize section 513 relief as separate from or inconsistent with the terms of the MSA.
¶ 31 Following a hearing on Diana's petition for rule to show cause, the circuit court entered an order on August 18, 2020, which provided, in part, that "any discovery regarding the allocation of 513 Costs and Expenses shall be requested within the next 7 days." On August 25, 2020, Diana filed an "Amended Two Count Petition Regarding 513 Obligation," which Michael answered. While we recognize that the character of a pleading should be determined from its content, not its label (In re Scarlett Z.-D., 2015 IL 117904, ¶ 64), Diana indicated in count II -"Motion to Allocate 513 Cost and Expenses between parties" - that she was invoking section 513 of the Act. She argued, in part, that the parties' MSA terms were "not clear in an amount certain that each party shall contribute to their children's 513 costs and expenses, therefore, the court must make that determination." Diana sought the application and division of the "University of Illinois standard for living costs and expenses" for her commuter-student daughter - a concept which was absent from the MSA but is part of section 513. See 750 ILCS 5/513(d) (West 2020). Based on the foregoing, we reject Michael's assertion that he was not on notice regarding the possibility of "separate relief outside their MSA." In addition, we observe that Michael himself filed a motion to modify in October 2020, wherein he sought modifications of his college contribution obligations under the MSA pursuant to sections 510 and 513 of the Act (750 ILCS 5/510, 5/513 (West 2020)).
¶ 32 We further note that the cases relied upon by Michael are inapposite. For example, Michael cites Dolan v. O'Callaghan, 2012 IL App (1st) 111505, ¶ 51, for the proposition that the "general purpose of notice is to apprise the person affected of the nature and purpose of a proceeding." The Dolan appellate court, however, rejected the defendant's argument that he was not personally served with certain motions; the appellate court found that the defendant was clearly aware of the motions. Id. ¶ 52. Like the defendant in Dolan, the record, here, suggests that Michael was aware of Diana's position regarding the applicability of section 513 of the Act.
¶ 33 Michael also relies on two cases wherein the lack of proper notice resulted in significant prejudice to a party. In Hyon Waste Management Services, Inc. v. City of Chicago, 53 Ill.App.3d 1013, 1014-15 (1977), a municipality had placed a seal on the kiln of an industrial waste destruction corporation, which effectively halted its operations; the circuit court denied the corporation's request for a preliminary injunction against the municipality. The appellate court reversed, finding that the corporation "upon receiving a ticket for emission violation, would not anticipate that an adverse ruling would result in the sealing of its equipment and closing down of its operation." Id. at 1018. In In re Custody of Ayala, 344 Ill.App.3d 574, 585 (2003), the appellate court held that the circuit court exceeded its jurisdiction in awarding joint co-custodial care of a minor to third parties - the natural father's wife and parents - where no pleading requested this relief. The appellate court found that the circuit court's order was unjust where the natural mother had no notice that such an award was contemplated. Id. at 587. Unlike the corporation in Hyon Waste Management and the natural mother in Ayala, the record in the instant case does not suggest that Michael was unfairly ambushed by the circuit court's ruling.
¶ 34 While we recognize that "a court lacks the authority either to decide issues that are not presented for adjudication or to grant relief that is not requested" (Solecki, 2020 IL App (2d) 190381, ¶ 45), the application of section 513 was requested by Diana prior to the December 2020 hearings in this matter. Therefore, we reject Michael's contention regarding the alleged deficiencies in the presentation of this issue.
¶ 35 Whether the Circuit Court Erred in Applying Section 513 to the MSA
¶ 36 Michael next contends that the circuit court erred in its reliance on section 513 of the Act. The crux of his argument appears to be that if the MSA were reviewed without reference to section 513, his obligation to contribute to Emily's college expenses would be less or nonexistent. For the reasons discussed below, we reject this position.
We observe that Michael appeared to take divergent positions in the circuit court proceedings by both (a) acknowledging an obligation to contribute toward Emily's college expenses and (b) claiming that Emily's alleged non-compliance with the terms of the MSA effectively negated his obligation.
¶ 37 The goal in interpreting an MSA is to ascertain the parties' intent; the best indicator of such intent is the language of the contract, given its plain and ordinary meaning. Id. ¶ 51. In the instant case, section 13 of Michael and Diana's MSA provided: (a) the parties agree that they shall each be responsible for the trade, vocation, or college or university education of their children according to their "respective abilities to pay," as well as the children's financial resources at the time the children attended such school; (b) the parties are obligated to provide a college education only if the children exhibit the aptitude and desire to pursue advanced education; and (c) the children "shall apply for all reasonably available grants, loans, school scholarship and work-study programs as a condition of parental contribution." Section 13 then included an illustrative but non-exhaustive list of the "costs and expenses necessarily incurred incident to a college education," e.g., books, room and board, and transportation expenses. The final two paragraphs of section 13 provided that the parties' obligation will not extend beyond the child's 23rd birthday and that, in the event of Michael or Diana's untimely death, reasonable contribution toward the further education expenses of the children would be a valid claim and charge against the decedent's estate.
¶ 38 The circuit court accurately observed that the MSA did not set forth a method of calculating the parties' "respective abilities to pay" under section 13. Given the children's young ages at the time of the execution of the MSA in 2009 (age 8 and age 5) and the relative lack of complexity of the proceedings at that time, the absence of extensive detail regarding the potential determination of college contribution obligations in the MSA is perhaps not surprising. See also Blum, 235 Ill.2d at 35 n.1 (observing that "written marital settlement agreements are often the product of intense negotiations that seldom offer the luxury of refined drafting"). As the parties' written agreement did not include any express calculation formula or criteria, the circuit court looked to section 513 of the Act and the cases interpreting section 513 for guidance. Although Michael contends such action constituted error, the cases he cites do not support his contention.
¶ 39 Michael primarily relies upon In re Marriage of Koenig, 2012 IL App (2d) 110503. The parties in Koenig had entered into an MSA in 1993 which addressed, among other things, the parties' financial responsibilities for their daughter's higher educational expenses. Id. ¶¶ 4-5. After the daughter had completed college in 2007 and was almost finished with law school, the wife filed a petition for contribution for higher educational expenses in April 2010, seeking reimbursement from the husband for approximately $257,000 in undergraduate and postgraduate educational expenses paid by the wife on the daughter's behalf. Id. ¶ 6. The trial court granted summary judgment in favor of the husband, finding that the wife was barred from retroactively seeking to enforce the provisions of the MSA under section 513 of the Act pursuant to In re Marriage of Petersen, 2011 IL 110984. Id. ¶ 7. In reversing the judgment, the appellate court noted that the MSA - which was incorporated into the judgment of dissolution - did not contain a reference to section 513 of the Act. Id. ¶ 17. The appellate court found that "it is inconsequential that the settlement agreement did not set a dollar amount or some basis for determining contributions, since contributions could always be settled by the trial court." Id.
¶ 40 The trial court's ruling in Koenig is substantially different from the ruling at issue herein. The trial court in Koenig was found to have incorrectly barred the wife from retroactively seeking college contribution from the husband, even though the parties' MSA contained no such limitation. Conversely, the circuit court's application of section 513 herein was consistent with both the letter and spirit of section 13 of the MSA. We further observe that the trial court's interpretation of Petersen and section 513 in Koenig essentially cancelled the husband's agreed-upon obligation to contribute to his child's college expenses, whereas the circuit court's interpretation herein supported the agreed-upon college contribution obligation of the parties.
¶ 41 Michael also cites In re Holderreith, 181 Ill.App.3d 199, 200 (1989), wherein the parties' MSA provided that the husband was responsible for the "college and professional education expenses of the children." When the husband subsequently refused to pay for their non-minor son to attend automotive and diesel mechanics school, the wife filed a petition seeking enforcement of the MSA and a petition seeking post-judgment relief under section 513 of the Act. Id. at 200-01. During arguments, however, the wife plainly stated that section 513 did not apply to the case, as the MSA provided for their children's educational expenses. Id. at 201. The trial court did not address whether the mechanics school fell within the terms of the MSA, but rather decided that even if the school was excluded from the definition of "college or professional school" in the MSA, the husband would nevertheless be responsible for the son's educational expenses pursuant to section 513. Id. The appellate court reversed, concluding that the MSA - rather than section 513 - controlled the disposition of the case. Id. at 206.
¶ 42 Michael's reliance on Holderreith is misplaced. Unlike Diana, the wife in Holderreith conceded that the MSA, and not section 513, controlled the disposition of the case. Id. at 201. More significantly, the trial court in Holderreith was found to have improperly expanded the language of the MSA - which obligated the husband to pay for his child's "college and professional" educational expenses - to add an obligation to which the husband never agreed, i.e., paying his child's educational expenses for automotive and diesel mechanics school. In the instant case, the court's application of section 513 of the Act and related case law neither expanded nor contradicted the parties' agreed-upon obligations.
¶ 43 Michael specifically contends that the reference in the MSA to the parties' responsibility to pay for their children's college expenses based on their "respective abilities to pay" precluded the circuit court's express reliance on In re Marriage of Drysch, 314 Ill.App.3d 640 (2000), and its consequent consideration of Michael's current wife Lisa's income. The MSA in Drysch provided that the divorcing spouses would contribute to their children's future education expenses based on their respective financial abilities. Id. at 641. The MSA stated that, if the parents could not agree, a court "shall do so *** taking into consideration Section 513." Id. at 641-42. The wife subsequently filed a petition requesting that her former husband be required to contribute to their son's college expenses. Id. at 642. In ordering the former husband to pay 10% of the college expenses, the court considered the wife's current husband's sizable income. Id. at 643. The wife appealed, arguing that her current husband's income should not constitute part of her "financial resources" pursuant to section 513. The appellate court rejected this argument, finding that "it is more equitable that the trial court be presented with the complete financial circumstances of each party so that it may be able to reach a fairer and more just determination." Id. at 645.
¶ 44 Michael contends that the reference to the parties' "respective abilities to pay" in the MSA is different from the "financial resources" of the parties, as stated in section 513 and addressed in Drysch. According to Michael, the scope of a spouse's "ability to pay" is a narrower concept than their "financial resources." We need not opine on any possible distinctions between these two concepts, however, as the application of either term leads to the same result in the instant case. Michael testified that Lisa shares in their household costs and expenses; none of the testimony or exhibits presented to the circuit court suggest that there was any meaningful separation in the financial lives of the couple. Under such circumstances, it was appropriate for the circuit court to view Lisa's income as a factor in the college contribution calculation, as Michael's "ability to pay" was affected by his current wife's income. E.g., In re Marriage of Rushing, 2018 IL App (5th) 170146, ¶ 37 (noting that "it is appropriate for the trial court to consider the financial resources of a noncustodial father's new wife where her resources have been commingled with those of the noncustodial father"); In re Marriage of Cianchetti, 351 Ill.App.3d 832, 835 (2004) (observing that although the wife's new husband was not obligated to pay for her children's tuition, and his income should not be used to determine her ability to pay tuition, it was properly used to examine the extent to which her income can be freed through reliance on her husband for support). Although Lisa is not obligated to pay for Emily's college education, Lisa's income and assets are relevant to the extent that she contributes to the expenses which would otherwise be paid by Michael. See Street, 325 Ill.App.3d at 114.
¶ 45 For the foregoing reasons, we find that the circuit court did not err in its reference to or application of section 513 and supporting case law.
¶ 46 Whether Circuit Court Erred in Finding an MSA Provision "Not Conscionable "
¶ 47 According to Michael, Emily's failure to obtain student loans violated the MSA and negated his obligation to contribute to her college expenses. As noted above, section 13 of the MSA provides, in part, that the children "shall apply for all reasonably available grants, loans, school scholarship and work-study programs as a condition of parental contribution." Michael contends that the circuit court erred when "it found the portion [of the MSA] devoted to college contribution 'not conscionable.'
¶ 48 A determination of whether a contractual clause is unconscionable is a matter of law, to be decided by the court. Razor v. Hyundai Motor America, 222 Ill.2d 75, 99 (2006). Unconscionability can be either "procedural" or "substantive" or a combination of both. Id. "Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, and also takes into account a lack of bargaining power." Id. at 100; In re Marriage of Arjmand, 2013 IL App (2d) 120639, ¶ 30. "Substantive unconscionability refers to those terms which are inordinately one-sided in one party's favor." Razor, 222 Ill.2d at 100. Accord Arjmand, 2013 IL App (2d) 120639, ¶ 30; In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 41.
¶ 49 Michael and Diana both argue that the circuit court found a portion of the MSA to be unconscionable and struck certain language from the MSA. Although not entirely clear from the parties' briefs, the purportedly "stricken" provision is presumably the language addressing student loans. Michael contends that the unconscionability finding was erroneous, and Diana counters that the circuit court acted appropriately.
¶ 50 Simply put, we reject the characterization of the circuit court's findings expressed by both parties. Based on our review of the record, the circuit court did not strike any language from section 13 of the MSA. Rather, the circuit court found that, based on Emily's unusually large amount of grants and scholarships, it would not be "reasonable" or "conscionable" to require her to also obtain student loans. The circuit court does not appear to have excised any requirement from the MSA, but instead found that the MSA's requirements - including that the children "shall apply for all reasonably available grants, loans, school scholarship and work-study programs" (emphasis added) - were satisfied by the circumstances present here. Such a result appears to have been based, in part, on the circuit court's favorable assessment of Emily's testimony. See Arjmand, 2013 IL App (2d) 120639, ¶ 35 (noting that the trial court is in the best position to judge the credibility of witnesses and resolve conflicts in the evidence).
¶ 51 As observed in Holderreith, "a court should construe the settlement provisions within the dissolution judgment so as to give effect to the intention of the parties." Holderreith, 181 Ill.App.3d at 202. Such intent must be determined from the instrument as a whole and not from any one clause standing alone. Id. Construing the terms of the MSA as a whole (see Gallagher v. Lenart, 226 Ill.2d 208, 235 (2007)), the plain intent was for the parties to share the financial responsibility for their children's college education expenses, as long as the child pursued reasonable financial aid. Ultimately, the circuit court was satisfied with Emily's actions as they pertained to the MSA. An interpretation of section 13 which would absolutely mandate that the children obtain student loans under the circumstances here would effectively negate such parental obligation - a result at odds with the parties' intent.
¶ 52 CONCLUSION
¶ 53 For the reasons discussed herein, the judgment of the circuit court of Cook County is affirmed in its entirety.
¶ 54 Affirmed.