                                         2014 IL App (3d) 130741

                              Opinion filed November 25, 2014
     _____________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                   A.D., 2014

     In Re MARRIAGE OF                                 )        Appeal from the Circuit Court
     DINO V. SARACCO, SR.,                             )        of the 12th Judicial Circuit,
                                                       )        Will County, Illinois,
            Petitioner-Appellant,                      )
                                                       )        Appeal No. 3-13-0741
     and                                               )        Circuit No. 07-D-60
                                                       )
     MELANIE SARACCO,                                  )        The Honorable
                                                       )        Brian E. Barrett,
            Respondent-Appellee.                       )        Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Carter and O'Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                   OPINION

¶1          Dino Saracco (petitioner) appeals from an order granting Melanie Saracco's (respondent)

     motion to terminate/modify her contribution to college expenses. Upon review, we reverse and

     remand with directions.

¶2                                                  FACTS

¶3          Petitioner and respondent married in 1982. Four children were born to the parties during

     the marriage. The parties divorced in 2008. Two of the four children were still minors at the

     time of dissolution. Respondent was ordered to pay child support. The judgment of dissolution

     reserved the issue of college contribution.
¶4             In 2010, petitioner filed a motion for contribution to college expenses with regard to one

     of the parties' children (Dino). Ultimately, the trial court determined that respondent would be

     responsible for 60% of Dino's college expenses and petitioner would be responsible for the

     remaining 40%. The parties did not appeal from this order.

¶5             In 2012, petitioner filed a motion to enforce the court's previous contribution order. The

     trial court granted the motion and ordered respondent to pay all outstanding amounts. The court

     also granted respondent leave to file a petition to terminate contribution.

¶6             In 2013, respondent filed a motion to terminate/modify contribution. 1 The matter was

     called for hearing on March 26, 2013. At the hearing, respondent stated her annual income was

     approximately $80,000. Petitioner's attorney stated the following with regard to petitioner's

     income:

                          "Petitioner gets additional money because he has a minor child

                      that lives in the home as part of his benefits. He's not taxed on

                      that. So when he was [previously] asked about what his income

                      was, his income as far as his tax person *** is $23,000. He does

                      get another $11,000 for his daughter as part of his benefits of

                      disability."

¶7             Dino testified he was enrolled at St. John's College. His overall grade point average

     (GPA) was 2.13. Dino stated he applied for all possible scholarships and loans. His remaining

     tuition obligation after factoring in his scholarships and loans was approximately $4,000 per

     semester. Dino picked St. John's because "[i]t felt like home" and it offered him the most

     1
         Respondent's motion raised additional issues. However, the issue of contribution is the only

     issue before us here on appeal.


                                                        2
     financial assistance. The trial court admonished Dino to "sign any paperwork necessary so that

     [respondent] may have full access to your college records." The court then continued the matter.

¶8          The matter resumed on June 27, 2013. Neither party was sworn in on this date.

     Respondent did not call any witnesses or present any evidence in support of her motion. Instead,

     respondent simply presented argument to the trial court. In doing so, she stated that petitioner's

     income has increased because he was "working and selling things, going to auctions."

     Petitioner's attorney denied this claim.

¶9          Respondent also stated that Dino refused to get a job to help pay for his tuition. The

     parties disputed as to whether Dino accepted all possible grants and scholarships. Respondent

     claimed he did not; however, she did not present any evidence in support of this claim. In

     response, petitioner claimed Dino did accept all possible financial assistance. Petitioner then

     tendered a financial statement from St. John's College indicating that Dino has accepted several

     scholarships, grants and loans. The following colloquy then took place:

                       "THE COURT: Okay. All right. Now, tell me why you want to

                    either terminate or modify the college expenses.

                       RESPONDENT: Because he's, he's not helping towards it.

                    He's, he's not talking to me again.

                                                    ***

                        THE COURT: Do you have anything in regards to the statutory

                    factors, the financial resources of the parents, the standard of living

                    the child would have enjoyed had the marriage not been dissolved,

                    the financial resources of the child or the child's academic

                    performance that you'd like to tell me about?


                                                      3
   RESPONDENT: Yes. I don't believe he's, he's academically

working at the top that he should because he's had to take an extra

year of school. He's had to take classes at Joliet Junior College to

get back into the school. The school asked him to leave. And he

took a whole semester off because his grade point average was too

low, and they wrote a letter telling him that.

   So I don't, I don't believe that the school[] [is] a good fit for

him. I don't care about paying his, his tuition. What I care about is

paying tuition that is going to get him what he wants. He's now on

a five-year plan instead of a four-year plan.

   And he keeps changing his major. He now wants to be a

psychologist. Before he, he wanted to, to do math. He wanted to

be a history teacher and a math teacher and a coach. He, he doesn't

even know what he wants yet. So how long does he get to choose

these things and not progress at all? He's not progressing in this

school.

                                 ***

   THE COURT: All. Right. Mr. Polito [(petitioner's counsel],

any evidence you want to put on?

   MR. POLITO: I don't Your Honor. It's my understanding from

(inaudible) my client, that that $10,000 that he gets on -- for

Christina's [(his daughter)] social security disability income has

been that way for a number of years.


                                   4
   THE COURT: Oh.

   MR. POLITO: That order [(original 60% / 40% contribution

decision)] was entered by the Court in 2011. So I'm assuming the

Court took that into consideration.

   RESPONDENT: I was not made aware that he was (inaudible)

2011.

   MR. POLITO: With all due respect, Your Honor, (inaudible)

makes it -- disparity of income is still $43,000, with the $10,000 --

   THE COURT: Based on what?

   MR. POLITO: He makes $24,000 a year in social security

disability --

   THE COURT: Plus $10,000.

   MR. POLITO: -- plus $10,000, so $34,000. She makes roughly

$77,000 [(a difference of $43,000)].

   THE COURT: And [respondent] pays $11,040 in child support.

                                ***

   THE COURT: Anything else?

   MR. POLITO: Nothing.

   THE COURT: All right. Show the matter comes on for motion

to decrease or terminate the college contribution.

                                ***




                                  5
     In looking at the statute, this has now been three years of

college. And taking into account the factors, the financial

resources of both parents after child support has been paid, there

was a relative, equal income on both parties.

                                ***

   Financial resources of the child. It appears that the child has

taken advantage of all grants, resources, and scholarships.

   Court is troubled by Mister -- the child's desire not to work.

The last time we had hearing on this one, the child testified he did

not wanna drive as much for that job.

   The child's academic performance is always an issue in college

contribution. We have a child who has been going to college there

for three years. He's had some average grades, based on his own

testimony previously in these matters.

   There is a situation we have here where the child has been put

in, in an outstanding position, through his own achievements,

athletically and otherwise, and by the ability of the parents.

However, we have a 21-year-old child now who is choosing his

own path in – as a path towards adulthood and should be

encouraged.

   Based on all the evidence presented, the inability of -- to pay

and the, the academic performance, the Court's going to terminate

the obligation to contribute to college for Dino."


                                  6
¶ 10                                              ANALYSIS

¶ 11          Petitioner appeals from the trial court's order terminating respondent's obligation to pay

       60% of Dino's college expenses. We have held that the pertinent question in determining

       whether to grant a petition for modification of a provision for payment of college expenses is

       whether the moving party has shown a substantial change in circumstances since entry of the

       original provision. In re Marriage of Loffredi, 232 Ill. App. 3d 709, 714 (1992). Petitioner

       argues respondent failed to show the existence of a substantial change. We agree.

¶ 12          Educational expenses awarded under the Illinois Marriage and Dissolution of Marriage

       Act (the Act) (750 ILCS 5/513(a) (West 2012)) are considered a form of child support. In re

       Marriage of Chee, 2011 IL App (1st) 102797, ¶ 9. Subsection 5-510(a)(1) of the Act states:

                             "(a) ***[T]he provisions of any judgment respecting ***

                      support may be modified ***. An order for child support may be

                      modified as follows:

                                 (1) upon a showing of a substantial change in

                             circumstances[.]" 750 ILCS 5/510(a)(1) (West

                             2012).

¶ 13          The party seeking modification bears the burden of proving a "substantial change." In Re

       Marriage of Sassano, 337 Ill. App. 3d 186, 194 (2003). Trial courts have wide latitude in

       determining whether a "substantial change" has occurred. In re Marriage of Riegel, 242 Ill. App.

       3d 496, 498 (1993). Section 5-513(b) provides:

                      "In making awards *** pursuant to a petition or motion to

                      decrease, modify, or terminate any such award, the court shall




                                                        7
                         consider all relevant factors that appear reasonable and necessary,

                         including:

                                 (1) The financial resources of both parents.

                                 (2) The standard of living the child would have

                         enjoyed had the marriage not been dissolved.

                                 (3) The financial resources of the child.

                                 (4) The child's academic performace." 750 ILCS

                         5/513(b) (West 2012).

¶ 14             Initially, we note that the trial court did not specifically find a "substantial change in

       circumstances." Both parties concede, however, that the absence of such an express finding does

       not automatically mandate reversal if the record supports the existence of a "substantial change."

       We accept this concession. Moreover, absent some evidence to the contrary, "[we] will neither

       presume that error occurred in the trial court nor assume that the trial court misunderstood the

       applicable law." People v. Lagle, 200 Ill. App. 3d 948, 955 (1990).

¶ 15             The parties disagree as to the standard of review applicable when examining a trial court's

       determination with regard to whether a "substantial change in circumstances" has occurred.

       Petitioner argues for de novo review, whereas respondent believes an abuse of discretion

       standard is appropriate. Petitioner cites In re Marriage of Hughes, 322 Ill. App. 3d 815, 818-19

       (2001).

                              "The substance of this appeal revolves around whether a

                         'substantial change in circumstances,' required under section 510(a)

                         (1) of the Act to modify child support, may be founded on changes

                         in financial conditions contemplated by the judgment for

                                                            8
                      dissolution of marriage. This is a question of the legal effect of

                      undisputed facts, which we review de novo."

       Respondent cites In re Marriage of Sassano, 337 Ill. App. 3d 186, 194 (2003).

                         "A trial court's determination that there has been a substantial

                      change in circumstances to warrant the modification lies within its

                      discretion and will not be disturbed absent an abuse of discretion."

¶ 16          We believe the appropriate standard is abuse of discretion. The facts in the instant case

       are not undisputed. More importantly, however, we find that the question of whether certain

       facts establish a "substantial change" involves the weighing and balancing of those facts. This is

       why trial courts are afforded "wide latitude" when answering this question. See Riegel, 242 Ill.

       App. 3d at 498. Thus, we will not disturb a trial court's "substantial change" finding unless no

       reasonable person would agree with the decision. In re Marriage of Mitteer, 241 Ill. App. 3d

       217, 224 (1993). A trial court's independent factual findings will not be disturbed unless

       deemed to be against the manifest weight of the evidence. In re Marriage of Romano, 2012 IL

       App (2d) 091339, ¶ 121.

¶ 17          We now turn to the precise question of whether the record supports the trial court's

       implicit and assumed finding that a "substantial change in circumstances" took place. We begin

       with the court's factual findings: (1) Dino "had some average grades," (2) Dino "has taken

       advantage of all grants, resources, and scholarships," (3) Dino "desire[d] not to work," (4) Dino's

       relationship with respondent is "strained," (5) Dino would have "enjoyed a similar situation

       today if the parties remained married, and (6) respondent "pays $11,040 in child support" per

       year. We defer to these factual findings as they are not against the manifest weight of the




                                                        9
       evidence. However, we believe the court's factual finding that the parties' annual incomes are

       relatively equal is against the manifest weight of the evidence. 2

¶ 18             At the first hearing, respondent stated that her annual income was $80,000. It appears

       respondent earns this income via employment as there was some discussion of her W-2s during

       the hearings. If we subtract the $11,040 respondent pays in child support her remaining income

       is $68,960. Petitioner's income consists entirely of disability payments totaling $35,000

       ($24,000 for him, $11,000 in addition due to caring for his minor daughter). 3 Neither party

       disputes these approximate numbers.

¶ 19             Accordingly, we find there is a substantial difference between the parties income --

       approximately $33,960. This difference is approximately $1,000 less than petitioner's entire

       annual income. We also note that petitioner is disabled, whereas respondent is employed.

¶ 20             Upon review, we do not believe any reasonable individual viewing the above facts could

       find a "substantial change in circumstances." While respondent has alleged certain facts, she has

       not alleged anything "substantial" that has changed. For example, respondent has not lost her job

       or become burdened with new financial obligations such as medical debt. To summarize, the

       record reveals that Dino is an average student who has accepted all available types of financial

       assistance. While his relationship with respondent is clearly strained, this alone does not support

       a finding of a "substantial change." In fact, the relationship has been strained for some time now.

       Moreover, the fact that Dino does not communicate effectively with respondent is not an

       2
           The trial court did not make express factual findings as to what the parties' actual annual

       incomes were. However, the actual amounts do not appear to be in dispute.
       3
           When computing respondent's income here on appeal, we use the $11,000 amount discussed at

       the first hearing rather than the $10,000 amount discussed at the second hearing.


                                                          10
       independently valid ground to terminate support. See Imes v. Imes, 52 Ill. App. 3d 792 (1977)

       (trial court did not abuse its discretion in modifying divorce decree so as to require father to

       contribute to educational expenses of his daughters even though daughters had isolated

       themselves from father, and even though neither daughter asked or received father's consent for

       her to attend college of her choice).

¶ 21             In coming to this conclusion, we reject respondent's claim that Dino's "poor" grades are

       "substantial change in circumstances." Significantly, the trial court, in making its factual

       findings, did not find Dino had "poor" grades. Instead, the court found Dino's grades were

       "average." Specifically, Dino's cumulative GPA hovered around the lower 2.0 region. During

       the first hearing, the trial court noted that "there are plenty of students out there who do not have

       4.0 averages that do very well in life." We agree. While we acknowledge Dino was asked to

       leave St. John's for a semester, we call attention to the fact that he enrolled in three classes at a

       community college where he received the grade of A in all three classes. We also note that

       respondent acknowledges that Dino's grades have gotten better; however, they are not at the level

       she believes appropriate and thus believes Dino should attend a different school. The question of

       what school Dino should be attending is moot. The trial court correctly pointed out that Dino has

       been attending St. John's for over three years.

¶ 22             We acknowledge that the court generically noted Dino's "academic performance" when it

       decided to terminate respondent's obligation. 4 We find this curious in light of the fact that the

       remainder of the record reveals that the court did not appear to have a specific problem with

       Dino's grades. We reference the court's "average" grade finding and the discussion that many

       4
           "Based on all the evidence presented, the inability of -- to pay and the, the academic

       performance, the Court's going to terminate the obligation to contribute to college for Dino."


                                                          11
       students succeed in the absence of a 4.0 GPA. Again, we hold the manifest weight of the

       evidence establishes that Dino's grades were "average." Moreover, we do not believe a

       cumulative GPA in the lower 2.0 range constitutes a "substantial change" for purposes of

       modification. Dino explained his grades are Bs and Cs. There is no evidence that Dino was an

       A student and suddenly changed to a C student. We also find it significant that according to

       respondent, Dino's grades have "come up a little bit."

¶ 23            We also reject respondent's claim that Dino's decision not to get a job constitutes a

       "substantial change in circumstances." Again, Dino "has taken advantage of all grants,

       resources, and scholarships." Furthermore, Dino's decision not to work has been consistent

       throughout his college career. We cite the following statement by respondent: "I got him a full-

       time job before he went to school. He refused to go back to that during breaks to earn some

       extra cash for spending money or whatever." These facts do not constitute a "substantial change

       in circumstances." We note that respondent's only cited authority (In Re Marriage of Calisoff,

       176 Ill. App. 3d 721, 729-30 (1988)) with regard to this particular argument involved a

       dissolution action where the trial court held the husband solely responsible for his children's

       college expenses for four years. Stated another way, Calisoff involved the entry of an original

       support order, not modification of an already existing support order. Thus, the question of

       whether a "substantial change in circumstances" took place was not considered by the Calisoff

       court.

¶ 24            Lastly, respondent makes much of the fact that she allegedly did not know that petitioner

       was receiving an additional $11,000 in disability payments due to him caring for the parties'

       minor daughter. Respondent concludes that this allegation alone supports a finding of




                                                         12
       "substantial change in circumstances" since petitioner's income has increased. We reject this

       claim for three reasons.

¶ 25          First, the question of when respondent found out about the $11,000 is irrelevant. The

       pertinent question is when petitioner began receiving the $11,000. Respondent has failed to

       present any evidence regarding this question. She merely stated that she found out upon

       reviewing petitioner's recent financial documents. Petitioner's attorney, however, stated that

       petitioner has been receiving the additional disability payments for "a number of years." Again,

       it was respondent's burden to show a "substantial change." See Sassano, 337 Ill. App. 3d at 194.

       Respondent could have subpoenaed petitioner's past financial records (financial affidavits or

       income tax filings), which would have conclusively established when petitioner began receiving

       the $11,000. Respondent chose not to do so.

¶ 26          Second, the record is devoid of any evidence that at the time the original 60% - 40%

       contribution order was entered the trial court was not aware of the $11,000. Petitioner's attorney

       argued that because petitioner had been receiving the additional disability payments for "a

       number of years," it is reasonable to assume "the Court took that into consideration" when it

       entered its original contribution order. Again, respondent failed to present any evidence to the

       contrary. Thus, we find this assumption reasonable. In accepting this assumption, we emphasize

       that respondent did not specifically refute counsel's claim that petitioner had been receiving the

       payments for "a number of years." Instead, respondent's entire argument was focused on when

       she found out about the payments.

¶ 27          Third, even assuming that petitioner only recently started receiving the additional

       $11,000, the disparity between the parties' income is still significant. Thus, we do not believe a

       increase in petitioner's income from $24,000 to $35,000 purportedly since the original


                                                       13
       contribution order constitutes a "substantial change in circumstances" in light of the fact that

       respondent's income is still almost double that of petitioner.

¶ 28          For the reasons stated above, we reverse the trial court's judgment. We remand the

       matter with instructions that the original contribution order be reinstated. Thus, respondent is

       responsible for 60% of all of Dino's past and future college expenses. Petitioner is responsible

       for 40% of all of Dino's past and future college expenses.

¶ 29          Reversed and remanded with directions.




                                                        14
