Wife filed a petition against husband regarding the son’s college education. The divorce decree stated that the parties shall be responsible for post high school educational expenses for the son (Max) when Max is ready to incur these expenses. The parties’ obligation for college “shall only be conditioned upon the ability to pay these expenses when incurred, and [Max’s] desire and ability to further his education.”
Following his 2005 graduation from New Trier High School, Max briefly attended Oakton Community College. In 2007, he was charged with and convicted of two felonies and sentenced to prison for three years. In 2008, husband filed a petition to stop the parties’ obligation to fund Max’s college expenses.
Max explained that he would like to pursue a master’s degree. Then, a doctorate in the area of science. He understood he needed to obtain a baccalaureate degree first. At the time of the hearing, Max was employed earning $15 per hour, which was paid to him in cash. He intended to find another job with more earning potential but had not submitted any applications.
Max admitted that he repeated classes at Rock Valley that he had taken elsewhere. He did not check before he took them to see if he could receive credit for those classes he had previously taken, rather than repeat them. Max said that he would need to retake tests, such as the Scholastic Aptitude Test (SAT), because his original scores were too old to submit. He planned to retake those tests when he applied to four-year colleges.
The trial court determined Max was emancipated and did not have the basic desire and ability to pursue a college education. The court said that Max, age 23 at the time of hearing, was capable of supporting himself. Evidence showed that Max was not dependent upon his mother (wife), with whom he lived, for his support. Max’s desire to further his education was not borne out by the evidence. The trial court stopped husband’s obligation to contribute to Max’s college educational expenses on the sole basis of Max’s incarceration.
On appeal from wife, the higher court said the trial court record had no evidence of the parties’ care, custody, control and support of Max. There was no evidence as to whether Max voluntarily abandoned that support. The appellate court sent the case back to the trial court. The trial court was told to consider ‘the extent to which Max’s incarceration constitutes changed circumstances. If so, there may be a modification of the parties’ obligation to provide for Max’s college education.’ Was Max legally emancipated or not?
The higher court said that marriage and military service are self-emancipating events in a child’s life. But, no Illinois court to date had recognized incarceration as a self-emancipating event.
The trial court reconsidered the case and reached the same conclusion. The husband’s petition to stop the parties’ obligation to pay for their son’s college education was granted again.
The issue of whether incarceration itself emancipates a child from the parents’ care is a subject for another day.
In re Marriage of Baumgartner, 2014 IL App (1st) 120552.
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