In re Marriage of Schmidt
Annotate this Case
NO. 4-96-0941
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: the Marriage of ) Appeal from
ELIZABETH S. SCHMIDT, n/k/a ELIZABETH ) Circuit Court of
S. MILLER, ) Sangamon County
Petitioner-Appellant, ) No. 86D289
and )
RICHARD B. SCHMIDT, JR., ) Honorable
Respondent-Appellee. ) Diane L. Brunton,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Petitioner, Elizabeth Miller, filed a petition to en-
force a provision of the settlement agreement incorporated into
the judgment for dissolution between herself and respondent,
Richard Schmidt, Jr., which required respondent to pay one-half
of their daughter's educational expenses incurred for college.
The trial court entered an award for much less than one-half of
the college expenses for the private school in Ohio chosen by the
daughter. Petitioner appeals, contending the trial court did not
enforce the judgment as entered but modified it to include a re-
quirement the college costs be reasonable and, in so doing, im-
properly based its decision on factors under section 513(b) of
the Illinois Marriage and Dissolution of Marriage Act (Act) (750
ILCS 5/513(b) (West 1996)). We affirm.
A judgment of dissolution was entered between the par-
ties on December 30, 1986. The judgment included the following
provision regarding educational expenses for college:
"IT IS FURTHER ADJUDGED that in the event
that the minor children of the parties shall
evidence the aptitude and desire for a college
education, Respondent shall contribute one-half
of such educational expenses."
On March 15, 1996, Elizabeth filed a petition to estab-
lish educational expenses pursuant to settlement agreement. On
June 5, 1996, Richard filed his answer to the petition and admit-
ted the parties' daughter, Emily Ann Schmidt, had been accepted
to the University of Dayton and she planned to attend that school
beginning August 28, 1996.
At the hearing on the petition, held June 5, 1996,
Elizabeth testified Emily had been accepted to the University of
Dayton (University) and wanted to go to school there and present-
ed as an exhibit the letter of acceptance. She testified to the
costs for attending the University for one year, which were bro-
ken down into counseling fee, orientation fee, tuition, universi-
ty residence fee and meal service, with the total coming to
slightly less than $17,345. Elizabeth also presented an exhibit
consisting of an itemization of the costs provided to her by the
University. The costs would be defrayed by a $1,500 scholarship
if Emily maintained a "B" average and became involved in school
activities.
Elizabeth further testified to approximate costs for
books and other school supplies of between $200 and $350 for
books and $100 for other supplies. Additional expenses included
a college application fee ($20), registration fee ($200), charges
for the American College Test and the Scholastic Aptitude Test
($488), and automobile insurance costs of $905 per year.
Elizabeth stated Emily applied for financial aid
through FASFA (not explained in the record) and her application
was denied. Elizabeth admitted the University is a private
school, she and respondent had never agreed about splitting tui-
tion at a particular school and the dissolution judgment did not
refer to a specific school.
Emily was also accepted at Northern Illinois Univer-
sity, Southern Illinois University at Edwardsville, and Southern
Illinois University at Carbondale. Elizabeth did not know the
exact costs at the state schools and did not know the difference
in tuition between them and the University although she stated
there was no significant difference between the tuition at the
state schools and the University. Elizabeth did not inquire into
the cost of any school until Emily had made her choice.
Emily testified she and her mother checked the costs of
the state schools where she was accepted but she did not remember
the costs any longer nor did she ever figure them out exactly.
She did not apply for financial aid at the state schools because
she did not decide to go to any of them. It was her choice to go
to the University.
Emily chose the University because it is a small school
with a good student-teacher ratio. She did not yet know what she
would major in and would be a general arts major until the end of
her sophomore year when she had to declare a major.
Richard testified he and Emily periodically discussed
the fact she wanted to go to college but they did not discuss the
name of a school. He never discussed with Elizabeth and Emily
the costs of a private school as opposed to a state school. At
one point, Emily did call him and tell him she needed $5,000 to
attend the University. Elizabeth and Emily did not ask for his
counsel, advice or input in deciding what college Emily would at-
tend.
Richard testified, over objection, to his financial
status. He testified his monthly expenses came close to exceed-
ing his monthly income and he had no money saved. Richard stated
he could not pay one-half of $17,000, the approximate cost of one
year at the University. He had no objections to Emily attending
one of the state schools to which she was accepted.
Richard testified he received information from his
employer regarding all colleges in the state of Illinois and pre-
sented excerpts as an exhibit. From his exhibit he testified
Southern Illinois University at Carbondale would cost $3,182 for
tuition and fees and $3,256 for room and board for one year,
while Northern Illinois University would cost $3,728 for tuition
and fees and $3,300 for room and board, also for one year. Rich-
ard testified he talked to Emily about her college education but
not to Elizabeth.
On rebuttal, Elizabeth testified Richard refused to
talk about college when she tried to discuss it with him. Emily
also testified on rebuttal Richard never talked to her about the
cost of state schools.
The trial court took the matter under advisement and
issued a written order on July 10, 1996. The trial court stated
although the judgment of dissolution indicated Richard was re-
sponsible for one-half of the college expenses of Emily, this did
not give her carte blanche in her selection of a college. The
court indicated a review of Richard's affidavit reflected he had
neither the monthly income nor assets to pay college expenses
where his share would be in excess of $9,000 per year. Addition-
ally, the court noted Emily stated she would be a general arts
major for the first two years of college and there was nothing in
the record indicating either the University or its programs were
significantly different from the state schools, particularly in
the first two years, so as to warrant the higher costs. There-
fore, the trial court found Richard to be responsible for $4,014
per year in educational expenses, which represented one-half of
the tuition, fees, room and board for a state school and one-half
of the supplies listed in Elizabeth's exhibit No. 2.
Elizabeth filed a motion to reconsider which was de-
nied. In its order denying the motion, the trial court specifi-
cally found the agreement was to be considered a contract between
the parties and the price term was missing. In such a circum-
stance, the trial court found a reasonable price is implied,
citing Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 494, 509 N.E.2d 729, 737 (1987). The trial court found the price range
for the state schools, together with Richard's occupation and
income, led to a determination a reasonable price was lower than
that requested by Elizabeth.
On appeal, Elizabeth first contends the settlement
agreement, as embodied in the judgment of dissolution, was unam-
biguous and any result making Richard responsible for less than
one-half of Emily's college expenses is a modification of the
agreement. A child support obligation, specifically one for
college expenses, is not modifiable without a petition for modi-
fication first being filed. In re Marriage of Sawyer, 264 Ill.
App. 3d 839, 848, 637 N.E.2d 559, 565 (1994). Elizabeth argues
Richard did not file a petition to modify and, therefore, the
trial court could not change Richard's obligation for one-half of
Emily's college expenses. The trial court, however, did not
modify Richard's obligation to pay one-half of Emily's college
expenses.
The judgment of dissolution indicates it was approved
as to form and content by both Elizabeth and Richard and the pro-
vision for college expenses is referred to by both parties as an
agreed settlement incorporated into the judgment. This was an
agreement between the parties and not a judicial determination of
the parties' rights, so we are dealing with a contract between
the parties. Elliott v. LRSL Enterprises, Inc., 226 Ill. App. 3d
724, 728-29, 589 N.E.2d 1074, 1077 (1992). The construction of
the agreement is governed by principles of contract law.
Elliott, 226 Ill. App. 3d at 728-29, 589 N.E.2d at 1077.
It is not necessary for a contract to specify all de-
tails to be enforceable but it must provide enough information so
the details can be determined from the contract. Kane v.
McDermott, 191 Ill. App. 3d 212, 217, 547 N.E.2d 708, 712 (1989).
The agreement at issue here stated:
"IT IS FURTHER ADJUDGED that in the event
that the minor children of the parties shall
evidence the aptitude and desire for a college
education, [Richard] shall contribute one-half
of such educational expenses."
Elizabeth argues since the agreement between the par-
ties provided Richard shall contribute one-half of Emily's educa-
tional expenses subject only to her aptitude and desire for high-
er education, the agreement is unambiguous and must be enforced
as written, requiring Richard to pay one-half of Emily's college
expenses, whatever amount that might be. She contrasts the lan-
guage here with that found in In re Marriage of Oldham, 222 Ill.
App. 3d 744, 745-46, 584 N.E.2d 385, 387 (1991), where the
father's obligation to pay for college expenses was conditioned
on the father being "'financially able so to do'" as well as the
"'interest'" and "'scholastic aptitude'" of the child and, final-
ly, on the expenses being "necessary and reasonable." She notes
Richard could have included language conditioning his obligation
on reasonableness and his ability to pay but did not do so and
Elizabeth argues she gave up any claim to maintenance or on his
property when she signed the agreement and she cannot now adjust
those areas as he is trying to do. An obligation to pay college
expenses is specifically enforceable due to the rights the ex-
wife gave up in the settlement agreement. See Gaddis v. Gaddis,
20 Ill. App. 3d 267, 271-73, 314 N.E.2d 627, 631-32 (1974).
Richard does not contend his obligation to pay college
expenses for Emily is not specifically enforceable nor does he
quibble with using contract law to govern the agreement. He
argues the agreement does not set forth a specific price or even
a method by which a specific price can be determined. It only
establishes the proportion of the cost that each party must bear.
In Illinois, when a contract is silent as to price, a reasonable
price will be implied. Victory Memorial Hospital v. Rice, 143
Ill. App. 3d 621, 623, 493 N.E.2d 117, 119 (1986).
Victory Memorial dealt with a service contract in which
a patient agreed to pay the hospital's regular charges for ser-
vices rendered. When a dispute arose, the hospital argued the
agreement indicated a definite price, the regular price charged
by the hospital. However, the court held on appeal the term was
not definite and, when a contract is silent as to a price term,
it will be implied a reasonable price was intended. Victory
Memorial, 143 Ill. App. 3d at 623-24, 493 N.E.2d at 119.
The opinion in Victory Memorial was cited as control-
ling in the case of Ingrassia, when the court was asked to in-
terpret an almost identical provision requiring the father to pay
the entire educational expenses for his daughter conditioned only
upon her "'desire and aptitude for a college education.'"
Ingrassia, 156 Ill. App. 3d at 494, 509 N.E.2d at 737.
In Ingrassia, the mother filed an emergency motion for
college expenses after enrolling her daughter in a private col-
lege without notice to the father. Ingrassia, 156 Ill. App. 3d
at 493, 509 N.E.2d at 736-37. She argued the agreement required
the father to pay the costs of their daughter's education no
matter how much it cost. The question for the courts was how
much the father was obligated to pay under the agreement. Both
the trial and appellate courts agreed the agreement was silent as
to how expensive a college education the father was required to
provide. The courts stated the term missing was a price term and
under the decision in Victory Memorial a reasonable price was
implied. Ingrassia, 156 Ill. App. 3d at 494, 509 N.E.2d at 737.
The trial court considered detailed evidence with respect to the
cost of attending the college chosen by the daughter and found it
to be reasonable. On appeal, the trial court's finding of rea-
sonableness was affirmed. Ingrassia, 156 Ill. App. 3d at 497,
509 N.E.2d at 739.
Elizabeth argues the Ingrassia case differs from this
case as it arose from a petition to modify; however, a careful
review of the opinion indicates the college expense issue arose
on the mother's motion to enforce the provision requiring the
father to pay the expenses (Ingrassia, 156 Ill. App. 3d at 493,
509 N.E.2d at 736-37). Nothing in the Ingrassia opinion suggests
the father filed a counterpetition requesting modification of his
obligation to pay college expenses.
Additional support for finding a reasonable price is
implied in an agreement between two divorcing parents, i.e.,
where one is required to pay for an expense of the children, is
found in In re Marriage of Roth, 99 Ill. App. 3d 679, 426 N.E.2d 246 (1981). Roth dealt not with college expenses but with an
agreement whereby the father would pay for a bar mitzvah or con-
firmation celebration and party for each of the three children of
the parties. The agreement set no limit on the cost of such a
party. The ex-wife argued the agreement's terms were unambiguous
and set no limit. The father argued a condition of reasonable-
ness was implied. On appeal, the court agreed reasonableness was
implicit, but found the father failed to show the party for his
son was unreasonably expensive for a person with the father's
income and standard of living. Roth, 99 Ill. App. 3d at 684, 426 N.E.2d at 250.
We find Ingrassia to be on point. Richard is not con-
testing his obligation to pay one-half of the college expenses
for Emily, only the reasonableness of the expenses proposed by
Elizabeth. Although the agreement itself could have used the
term "reasonable," as the agreement in Oldham did, we find it is
an implied term under contract law where a contract is silent as
to price or another, more specific method of determining price.
The trial court did not modify the agreement without a
motion to do so on file. Instead, it implied a reasonable price
term in interpreting the contract in order to enforce it.
Elizabeth next argues the trial court erred in resort-
ing to factors such as Richard's financial resources and the
comparative costs of the University and the state colleges in
Illinois in determining a reasonable price for college expenses
where the obligation to pay those expenses has been provided for
in a settlement agreement.
Section 513(a)(2) of the Act provides, upon applica-
tion, the trial court may make awards from the property and in-
come of either or both parents for the educational expenses of
their children. 750 ILCS 5/513(a)(2) (West 1996). In making
such awards the Act provides the court shall consider the finan-
cial resources of both parents, the standard of living the child
would have enjoyed if the marriage had not been dissolved, the
financial resources of the child and other relevant factors. 750
ILCS 5/513(b) (West 1996). Other relevant factors have been held
to include the cost of the school, the programs offered at the
school, the child's scholastic aptitude, how the school meets the
child's goals, and the benefits the child will receive from at-
tending the school. In re Marriage of Spear, 244 Ill. App. 3d
626, 630, 613 N.E.2d 358, 360-61 (1993). Another factor that may
be considered is whether a divorced parent needs to pay for a
private school education when adequate public schools are avail-
able. In re Support of Pearson, 111 Ill. 2d 545, 551-52, 490 N.E.2d 1274, 1277 (1986).
Elizabeth argues the parties have not requested the
trial court to determine their parental responsibilities for a
child's educational expenses under section 513(a)(2) of the Act
but they have already agreed they are responsible for Emily's
college expenses. Therefore, the factors used to make determina-
tions under section 513(b) are inapplicable. Elizabeth relies on
the cases of In re Marriage of Houston, 150 Ill. App. 3d 608, 501 N.E.2d 1015 (1986), and In re Marriage of Holderrieth, 181 Ill.
App. 3d 199, 536 N.E.2d 946 (1989), to support her argument.
Although both cases contain language discussing the fact a set-
tlement agreement controls the rights and obligations of the
parties over section 513(b) factors, neither case dealt with the
issue of a reasonable price for college costs and neither case
supports Elizabeth's position in this case.
In Houston, the mother filed a petition for a rule to
show cause why the father should not be held in contempt for
failure to comply with the settlement agreement that required the
father to pay college expenses for the daughter of the parties
"'if she attends college.'" Houston, 150 Ill. App. 3d at 610,
501 N.E.2d at 1016-17. The court noted the mother sought en-
forcement of the settlement agreement. Houston, 150 Ill. App. 3d
at 614, 501 N.E.2d at 1019. The father simply stopped paying for
college expenses when he was unemployed and then also argued he
should not have to pay for any more than two years at a junior
college. He wanted to relieve himself of his obligation to pay
college expenses altogether. The court in Houston found the
agreement to pay college expenses was unqualified and the
father's obligation to pay college expenses was not qualified by
his financial ability or his right to participate in the selec-
tion of college attended or course of study by his daughter.
Houston, 150 Ill. App. 3d at 614, 501 N.E.2d at 1019. The court
stated neither these factors nor any others under section 513(b)
of the Act would excuse his duties under the settlement agree-
ment.
In Holderrieth the father was obligated to pay college
or professional school expenses based on the desire and aptitude
of the children and his ability to pay such expenses.
Holderrieth, 181 Ill. App. 3d at 200-01, 536 N.E.2d at 948. The
mother again filed a petition for rule to show cause because the
father was refusing to pay education expenses for their son. She
sought enforcement of the settlement agreement. Holderrieth, 181
Ill. App. 3d at 201, 536 N.E.2d at 948. The mother then was
permitted to file an amended petition seeking relief under sec-
tion 513 of the Act. The issue involved the son's choice of
school. The son had chosen a trade school and, as the agreement
specifically stated a college or professional school, the father
claimed he had no duty to pay for his son's educational expenses
at a trade school. The trial court based its decision on section
513 and required the father to pay the trade school expenses for
the son. Holderrieth, 181 Ill. App. 3d at 201-02, 536 N.E.2d at
948. On appeal the court concluded the settlement agreement
controlled over the provisions of section 513 (Holderrieth, 181
Ill. App. 3d at 206, 536 N.E.2d at 951) and found the definition
of college or professional school as used in the settlement
agreement did not include a trade school (Holderrieth, 181 Ill.
App. 3d at 204-05, 536 N.E.2d at 950-51). Therefore, the father
was found to have no obligation under the settlement agreement to
pay for a trade school education. Holderrieth, 181 Ill. App. 3d
at 205, 536 N.E.2d at 951.
Richard is not seeking to use the section 513 factors
to avoid paying for one-half of Emily's college education. He is
only asking the trial court to interpret the contract as requir-
ing a reasonable price for that education. He then seeks a de-
termination of what is reasonable under the circumstances of this
case.
In order to make such an interpretation, the trial
court would have to use the factors found under section 513(b) of
the Act. Both the trial court and Richard suggest section 513(b)
factors were not considered but it is clear they were. We find
nothing wrong with their use here. The trial court was not read-
justing the parties' agreed obligations to pay Emily's college
expenses but simply interpreting the contract by determining a
reasonable price.
The standard of living the child would have enjoyed had
the marriage not been dissolved and the financial resources of
both parents are factors specifically set forth in section 513(b)
of the Act. 750 ILCS 5/513(b) (West 1996). There is no evidence
it was the intent of the parties when they entered into the
agreement for college expenses that Emily could attend any col-
lege, regardless of cost. This agreement took place 10 years
before their child was ready for college. If the parties had not
been divorced, they likely would have discussed the best college
situation for Emily and taken into consideration their income,
Emily's interests and aptitudes, and the costs of the various
schools Emily was interested in attending. One of the spouses
would not have simply gone out with Emily and chosen a school
without input from the other parent other than asking him to
write a tuition check. The only way to determine a reasonable
price would be to use the same factors two married parents would
use.
Elizabeth argues the trial court should not be allowed
to compare the price of state schools with that of a private
school to determine reasonableness because a private school would
always be more expensive than a state school. However, as noted
by the trial court, another factor to be considered is whether
there are special programs or attributes of a school that would
make the additional costs of a private school more reasonable
under the circumstances. See Pearson, 111 Ill. 2d at 551-52, 490 N.E.2d at 1277; Spear, 244 Ill. App. 3d at 630, 613 N.E.2d at
360-61. There was scant evidence of that here.
Elizabeth argues the burden of proof is on the party
seeking to determine a price is unreasonable as the complaining
party in both Ingrassia and Roth was required to do. See
Ingrassia, 156 Ill. App. 3d at 494, 509 N.E.2d at 737; Roth, 99
Ill. App. 3d at 684, 426 N.E.2d at 250. She contends Richard did
not show the cost of the University was unreasonable. However,
he did not need to present his own evidence in order to meet his
burden of proof when Emily's testimony itself did not provide
meaningful reasons for her choice of the University over the
state schools. He only needed to show the costs of the state
schools and his finances. The trial court then was able to draw
the conclusion there was no advantage shown to make Richard pay
more than the state school costs, particularly in view of his
financial situation.
We find the trial court did not err in using section
513(b) factors to determine a reasonable price for college ex-
penses. Elizabeth presented no evidence indicating why it was
necessary or more appropriate for Emily to choose the University
over state schools where she was also accepted. Richard's evi-
dence of the lower costs at those schools, coupled with the evi-
dence of his financial means, combined to make the higher costs
of the University unreasonable.
Finally, Elizabeth argued at the time she filed her
motion to reconsider the trial court's findings that Richard
should be estopped from complaining of Emily's choice of schools
because of his acquiescence in allowing her to enroll at the
University. She argues Richard's conduct and words amount to
either promissory or equitable estoppel.
The elements of promissory estoppel are (1) an unam-
biguous promise; (2) reliance on such promise by the promisee;
(3) the promisor expects and foresees such reliance; and (4) the
promisee relies on the promise to her injury. Cullen Distribut-
ing, Inc. v. Petty, 164 Ill. App. 3d 313, 318, 517 N.E.2d 733,
737 (1987). Elizabeth argues the unambiguous promise made by
Richard was his agreement to pay one-half of Emily's college
education expenses. The reliance was the fact the agreement
provided a portion of the consideration for the settlement agree-
ment and her waiver of maintenance as well as all her rights in
any of Richard's property. Elizabeth asserts Richard expected
and foresaw her reliance on his promise when he signed the agree-
ment, approving it as to form and content. Her injury, she ar-
gues, occurred when she paid all of Emily's expenses to the date
of the court hearing and her injury will increase with the re-
ceipt of the initial statement for payment from the University,
which Elizabeth expected in July 1996.
This argument is flawed because Richard has not broken
his promise to pay one-half of Emily's college expenses. This
case involved a contract without a price term, which required the
determination of a reasonable price. This case does not involve
the breach of an unambiguous promise nor did the evidence support
such a finding.
The evidence indicated Richard was willing to pay one-
half of reasonable college expenses. There was no indication in
the record Richard's promise to pay one-half of the college ex-
penses was even part of the reason Elizabeth waived maintenance
and gave up any rights in Richard's property. Finally, Elizabeth
obligated herself to pay for tuition and room and board at the
University without first consulting Richard as to the reasonable-
ness of the costs.
Next Elizabeth argues Richard should be equitably es-
topped from complaining of Emily's choice of colleges. The ele-
ments of equitable estoppel are (1) words or conduct amounting to
misrepresentation or concealment of material facts; (2) knowledge
on the part of the person against whom the estoppel is asserted
that the representations were untrue; (3) the truth of the repre-
sentations must be unknown to the party asserting the estoppel;
(4) the party making the representations must reasonably expect
they will be acted upon by the party asserting estoppel or the
public generally; (5) the party asserting the estoppel must have
relied upon the conduct or representations in good faith; and (6)
the party asserting the estoppel must have so acted because of
such representations or conduct that she would be prejudiced if
the first party is permitted to deny the truth thereof. Vaughn
v. Speaker, 126 Ill. 2d 150, 162-63, 533 N.E.2d 885, 890 (1988).
Elizabeth argues Richard's conduct in failing to file a
petition to modify amounted to concealment of the material fact
he would attempt to modify the settlement agreement at the time
of her enforcement proceeding. She argues his signature on the
settlement agreement coupled with his later successful modifica-
tion of the dissolution order in this case indicated his original
approval of the agreement was a misrepresentation. She had no
way of knowing his representations were untrue and she reasonably
relied on them by both signing the agreement and then enrolling
Emily in the University based upon Richard's promise to pay one-
half of Emily's expenses there. Elizabeth contends Richard must
have intended her to rely on his representations and she has been
prejudiced by her reliance on them. Elizabeth argues Richard sat
by and did nothing even though he knew Emily had decided to en-
roll at the University. She contends he acquiesced in Emily's
choice and should now be estopped from challenging the cost for
her to attend the college of her choice.
The evidence is not so clear-cut, however. The only
mention of the University in the testimony was that Emily once
called Richard and told him she needed $5,000 to attend the Uni-
versity. The testimony indicated the parties never sat down
together to discuss Emily's choice of college, the expenses in-
volved or the available funds to pay for her choice. Perhaps
Emily made her decision based on her and Elizabeth's belief Rich-
ard was responsible for one-half of whatever expense she chose to
incur. That belief was not induced by any misrepresentations by
Richard nor does the evidence show he acquiesced in Emily's
choice of college.
There is no evidence Richard was aware Emily had al-
ready enrolled at the University. There is, however, evidence
Richard obtained information regarding the costs of state schools
to which Richard knew Emily had been accepted. This was some-
thing Elizabeth and Emily did not do. Richard testified he was
not consulted in any way about Emily's specific college plans,
although he was aware she had a general desire to attend college
and he was proud of her academic ability. Elizabeth testified,
however, Richard refused to discuss college plans. The discrep-
ancy here was a credibility issue, which is within the province
of the trial court to resolve. People v. Sanchez, 131 Ill. 2d 417, 426, 546 N.E.2d 574, 579 (1989).
Equitable estoppel was not proved by Richard's failure
to file a petition to modify, which he did not need to do, nor
was there evidence he acquiesced in Emily's decision to attend
the University.
The judgment of the trial court is affirmed.
Affirmed.
GARMAN and GREEN, JJ., concur.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: the Marriage of ) Appeal from
ELIZABETH S. SCHMIDT, n/k/a ELIZABETH ) Circuit Court of
S. MILLER, ) Sangamon County
Petitioner-Appellant, ) No. 86D289
and )
RICHARD B. SCHMIDT, JR., ) Honorable
Respondent-Appellee. ) Diane L. Brunton,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Petitioner, Elizabeth Miller, filed a petition to en-
force a provision of the settlement agreement incorporated into
the judgment for dissolution between herself and respondent,
Richard Schmidt, Jr., which required respondent to pay one-half
of their daughter's educational expenses incurred for college.
The trial court entered an award for much less than one-half of
the college expenses for the private school in Ohio chosen by the
daughter. Petitioner appeals, contending the trial court did not
enforce the judgment as entered but modified it to include a re-
quirement the college costs be reasonable and, in so doing, im-
properly based its decision on factors under section 513(b) of
the Illinois Marriage and Dissolution of Marriage Act (Act) (750
ILCS 5/513(b) (West 1996)). We affirm.
A judgment of dissolution was entered between the par-
ties on December 30, 1986. The judgment included the following
provision regarding educational expenses for college:
"IT IS FURTHER ADJUDGED that in the event
that the minor children of the parties shall
evidence the aptitude and desire for a college
education, Respondent shall contribute one-half
of such educational expenses."
On March 15, 1996, Elizabeth filed a petition to estab-
lish educational expenses pursuant to settlement agreement. On
June 5, 1996, Richard filed his answer to the petition and admit-
ted the parties' daughter, Emily Ann Schmidt, had been accepted
to the University of Dayton and she planned to attend that school
beginning August 28, 1996.
At the hearing on the petition, held June 5, 1996,
Elizabeth testified Emily had been accepted to the University of
Dayton (University) and wanted to go to school there and present-
ed as an exhibit the letter of acceptance. She testified to the
costs for attending the University for one year, which were bro-
ken down into counseling fee, orientation fee, tuition, universi-
ty residence fee and meal service, with the total coming to
slightly less than $17,345. Elizabeth also presented an exhibit
consisting of an itemization of the costs provided to her by the
University. The costs would be defrayed by a $1,500 scholarship
if Emily maintained a "B" average and became involved in school
activities.
Elizabeth further testified to approximate costs for
books and other school supplies of between $200 and $350 for
books and $100 for other supplies. Additional expenses included
a college application fee ($20), registration fee ($200), charges
for the American College Test and the Scholastic Aptitude Test
($488), and automobile insurance costs of $905 per year.
Elizabeth stated Emily applied for financial aid
through FASFA (not explained in the record) and her application
was denied. Elizabeth admitted the University is a private
school, she and respondent had never agreed about splitting tui-
tion at a particular school and the dissolution judgment did not
refer to a specific school.
Emily was also accepted at Northern Illinois Univer-
sity, Southern Illinois University at Edwardsville, and Southern
Illinois University at Carbondale. Elizabeth did not know the
exact costs at the state schools and did not know the difference
in tuition between them and the University although she stated
there was no significant difference between the tuition at the
state schools and the University. Elizabeth did not inquire into
the cost of any school until Emily had made her choice.
Emily testified she and her mother checked the costs of
the state schools where she was accepted but she did not remember
the costs any longer nor did she ever figure them out exactly.
She did not apply for financial aid at the state schools because
she did not decide to go to any of them. It was her choice to go
to the University.
Emily chose the University because it is a small school
with a good student-teacher ratio. She did not yet know what she
would major in and would be a general arts major until the end of
her sophomore year when she had to declare a major.
Richard testified he and Emily periodically discussed
the fact she wanted to go to college but they did not discuss the
name of a school. He never discussed with Elizabeth and Emily
the costs of a private school as opposed to a state school. At
one point, Emily did call him and tell him she needed $5,000 to
attend the University. Elizabeth and Emily did not ask for his
counsel, advice or input in deciding what college Emily would at-
tend.
Richard testified, over objection, to his financial
status. He testified his monthly expenses came close to exceed-
ing his monthly income and he had no money saved. Richard stated
he could not pay one-half of $17,000, the approximate cost of one
year at the University. He had no objections to Emily attending
one of the state schools to which she was accepted.
Richard testified he received information from his
employer regarding all colleges in the state of Illinois and pre-
sented excerpts as an exhibit. From his exhibit he testified
Southern Illinois University at Carbondale would cost $3,182 for
tuition and fees and $3,256 for room and board for one year,
while Northern Illinois University would cost $3,728 for tuition
and fees and $3,300 for room and board, also for one year. Rich-
ard testified he talked to Emily about her college education but
not to Elizabeth.
On rebuttal, Elizabeth testified Richard refused to
talk about college when she tried to discuss it with him. Emily
also testified on rebuttal Richard never talked to her about the
cost of state schools.
The trial court took the matter under advisement and
issued a written order on July 10, 1996. The trial court stated
although the judgment of dissolution indicated Richard was re-
sponsible for one-half of the college expenses of Emily, this did
not give her carte blanche in her selection of a college. The
court indicated a review of Richard's affidavit reflected he had
neither the monthly income nor assets to pay college expenses
where his share would be in excess of $9,000 per year. Addition-
ally, the court noted Emily stated she would be a general arts
major for the first two years of college and there was nothing in
the record indicating either the University or its programs were
significantly different from the state schools, particularly in
the first two years, so as to warrant the higher costs. There-
fore, the trial court found Richard to be responsible for $4,014
per year in educational expenses, which represented one-half of
the tuition, fees, room and board for a state school and one-half
of the supplies listed in Elizabeth's exhibit No. 2.
Elizabeth filed a motion to reconsider which was de-
nied. In its order denying the motion, the trial court specifi-
cally found the agreement was to be considered a contract between
the parties and the price term was missing. In such a circum-
stance, the trial court found a reasonable price is implied,
citing Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 494, 509 N.E.2d 729, 737 (1987). The trial court found the price range
for the state schools, together with Richard's occupation and
income, led to a determination a reasonable price was lower than
that requested by Elizabeth.
On appeal, Elizabeth first contends the settlement
agreement, as embodied in the judgment of dissolution, was unam-
biguous and any result making Richard responsible for less than
one-half of Emily's college expenses is a modification of the
agreement. A child support obligation, specifically one for
college expenses, is not modifiable without a petition for modi-
fication first being filed. In re Marriage of Sawyer, 264 Ill.
App. 3d 839, 848, 637 N.E.2d 559, 565 (1994). Elizabeth argues
Richard did not file a petition to modify and, therefore, the
trial court could not change Richard's obligation for one-half of
Emily's college expenses. The trial court, however, did not
modify Richard's obligation to pay one-half of Emily's college
expenses.
The judgment of dissolution indicates it was approved
as to form and content by both Elizabeth and Richard and the pro-
vision for college expenses is referred to by both parties as an
agreed settlement incorporated into the judgment. This was an
agreement between the parties and not a judicial determination of
the parties' rights, so we are dealing with a contract between
the parties. Elliott v. LRSL Enterprises, Inc., 226 Ill. App. 3d
724, 728-29, 589 N.E.2d 1074, 1077 (1992). The construction of
the agreement is governed by principles of contract law.
Elliott, 226 Ill. App. 3d at 728-29, 589 N.E.2d at 1077.
It is not necessary for a contract to specify all de-
tails to be enforceable but it must provide enough information so
the details can be determined from the contract. Kane v.
McDermott, 191 Ill. App. 3d 212, 217, 547 N.E.2d 708, 712 (1989).
The agreement at issue here stated:
"IT IS FURTHER ADJUDGED that in the event
that the minor children of the parties shall
evidence the aptitude and desire for a college
education, [Richard] shall contribute one-half
of such educational expenses."
Elizabeth argues since the agreement between the par-
ties provided Richard shall contribute one-half of Emily's educa-
tional expenses subject only to her aptitude and desire for high-
er education, the agreement is unambiguous and must be enforced
as written, requiring Richard to pay one-half of Emily's college
expenses, whatever amount that might be. She contrasts the lan-
guage here with that found in In re Marriage of Oldham, 222 Ill.
App. 3d 744, 745-46, 584 N.E.2d 385, 387 (1991), where the
father's obligation to pay for college expenses was conditioned
on the father being "'financially able so to do'" as well as the
"'interest'" and "'scholastic aptitude'" of the child and, final-
ly, on the expenses being "necessary and reasonable." She notes
Richard could have included language conditioning his obligation
on reasonableness and his ability to pay but did not do so and
Elizabeth argues she gave up any claim to maintenance or on his
property when she signed the agreement and she cannot now adjust
those areas as he is trying to do. An obligation to pay college
expenses is specifically enforceable due to the rights the ex-
wife gave up in the settlement agreement. See Gaddis v. Gaddis,
20 Ill. App. 3d 267, 271-73, 314 N.E.2d 627, 631-32 (1974).
Richard does not contend his obligation to pay college
expenses for Emily is not specifically enforceable nor does he
quibble with using contract law to govern the agreement. He
argues the agreement does not set forth a specific price or even
a method by which a specific price can be determined. It only
establishes the proportion of the cost that each party must bear.
In Illinois, when a contract is silent as to price, a reasonable
price will be implied. Victory Memorial Hospital v. Rice, 143
Ill. App. 3d 621, 623, 493 N.E.2d 117, 119 (1986).
Victory Memorial dealt with a service contract in which
a patient agreed to pay the hospital's regular charges for ser-
vices rendered. When a dispute arose, the hospital argued the
agreement indicated a definite price, the regular price charged
by the hospital. However, the court held on appeal the term was
not definite and, when a contract is silent as to a price term,
it will be implied a reasonable price was intended. Victory
Memorial, 143 Ill. App. 3d at 623-24, 493 N.E.2d at 119.
The opinion in Victory Memorial was cited as control-
ling in the case of Ingrassia, when the court was asked to in-
terpret an almost identical provision requiring the father to pay
the entire educational expenses for his daughter conditioned only
upon her "'desire and aptitude for a college education.'"
Ingrassia, 156 Ill. App. 3d at 494, 509 N.E.2d at 737.
In Ingrassia, the mother filed an emergency motion for
college expenses after enrolling her daughter in a private col-
lege without notice to the father. Ingrassia, 156 Ill. App. 3d
at 493, 509 N.E.2d at 736-37. She argued the agreement required
the father to pay the costs of their daughter's education no
matter how much it cost. The question for the courts was how
much the father was obligated to pay under the agreement. Both
the trial and appellate courts agreed the agreement was silent as
to how expensive a college education the father was required to
provide. The courts stated the term missing was a price term and
under the decision in Victory Memorial a reasonable price was
implied. Ingrassia, 156 Ill. App. 3d at 494, 509 N.E.2d at 737.
The trial court considered detailed evidence with respect to the
cost of attending the college chosen by the daughter and found it
to be reasonable. On appeal, the trial court's finding of rea-
sonableness was affirmed. Ingrassia, 156 Ill. App. 3d at 497,
509 N.E.2d at 739.
Elizabeth argues the Ingrassia case differs from this
case as it arose from a petition to modify; however, a careful
review of the opinion indicates the college expense issue arose
on the mother's motion to enforce the provision requiring the
father to pay the expenses (Ingrassia, 156 Ill. App. 3d at 493,
509 N.E.2d at 736-37). Nothing in the Ingrassia opinion suggests
the father filed a counterpetition requesting modification of his
obligation to pay college expenses.
Additional support for finding a reasonable price is
implied in an agreement between two divorcing parents, i.e.,
where one is required to pay for an expense of the children, is
found in In re Marriage of Roth, 99 Ill. App. 3d 679, 426 N.E.2d 246 (1981). Roth dealt not with college expenses but with an
agreement whereby the father would pay for a bar mitzvah or con-
firmation celebration and party for each of the three children of
the parties. The agreement set no limit on the cost of such a
party. The ex-wife argued the agreement's terms were unambiguous
and set no limit. The father argued a condition of reasonable-
ness was implied. On appeal, the court agreed reasonableness was
implicit, but found the father failed to show the party for his
son was unreasonably expensive for a person with the father's
income and standard of living. Roth, 99 Ill. App. 3d at 684, 426 N.E.2d at 250.
We find Ingrassia to be on point. Richard is not con-
testing his obligation to pay one-half of the college expenses
for Emily, only the reasonableness of the expenses proposed by
Elizabeth. Although the agreement itself could have used the
term "reasonable," as the agreement in Oldham did, we find it is
an implied term under contract law where a contract is silent as
to price or another, more specific method of determining price.
The trial court did not modify the agreement without a
motion to do so on file. Instead, it implied a reasonable price
term in interpreting the contract in order to enforce it.
Elizabeth next argues the trial court erred in resort-
ing to factors such as Richard's financial resources and the
comparative costs of the University and the state colleges in
Illinois in determining a reasonable price for college expenses
where the obligation to pay those expenses has been provided for
in a settlement agreement.
Section 513(a)(2) of the Act provides, upon applica-
tion, the trial court may make awards from the property and in-
come of either or both parents for the educational expenses of
their children. 750 ILCS 5/513(a)(2) (West 1996). In making
such awards the Act provides the court shall consider the finan-
cial resources of both parents, the standard of living the child
would have enjoyed if the marriage had not been dissolved, the
financial resources of the child and other relevant factors. 750
ILCS 5/513(b) (West 1996). Other relevant factors have been held
to include the cost of the school, the programs offered at the
school, the child's scholastic aptitude, how the school meets the
child's goals, and the benefits the child will receive from at-
tending the school. In re Marriage of Spear, 244 Ill. App. 3d
626, 630, 613 N.E.2d 358, 360-61 (1993). Another factor that may
be considered is whether a divorced parent needs to pay for a
private school education when adequate public schools are avail-
able. In re Support of Pearson, 111 Ill. 2d 545, 551-52, 490 N.E.2d 1274, 1277 (1986).
Elizabeth argues the parties have not requested the
trial court to determine their parental responsibilities for a
child's educational expenses under section 513(a)(2) of the Act
but they have already agreed they are responsible for Emily's
college expenses. Therefore, the factors used to make determina-
tions under section 513(b) are inapplicable. Elizabeth relies on
the cases of In re Marriage of Houston, 150 Ill. App. 3d 608, 501 N.E.2d 1015 (1986), and In re Marriage of Holderrieth, 181 Ill.
App. 3d 199, 536 N.E.2d 946 (1989), to support her argument.
Although both cases contain language discussing the fact a set-
tlement agreement controls the rights and obligations of the
parties over section 513(b) factors, neither case dealt with the
issue of a reasonable price for college costs and neither case
supports Elizabeth's position in this case.
In Houston, the mother filed a petition for a rule to
show cause why the father should not be held in contempt for
failure to comply with the settlement agreement that required the
father to pay college expenses for the daughter of the parties
"'if she attends college.'" Houston, 150 Ill. App. 3d at 610,
501 N.E.2d at 1016-17. The court noted the mother sought en-
forcement of the settlement agreement. Houston, 150 Ill. App. 3d
at 614, 501 N.E.2d at 1019. The father simply stopped paying for
college expenses when he was unemployed and then also argued he
should not have to pay for any more than two years at a junior
college. He wanted to relieve himself of his obligation to pay
college expenses altogether. The court in Houston found the
agreement to pay college expenses was unqualified and the
father's obligation to pay college expenses was not qualified by
his financial ability or his right to participate in the selec-
tion of college attended or course of study by his daughter.
Houston, 150 Ill. App. 3d at 614, 501 N.E.2d at 1019. The court
stated neither these factors nor any others under section 513(b)
of the Act would excuse his duties under the settlement agree-
ment.
In Holderrieth the father was obligated to pay college
or professional school expenses based on the desire and aptitude
of the children and his ability to pay such expenses.
Holderrieth, 181 Ill. App. 3d at 200-01, 536 N.E.2d at 948. The
mother again filed a petition for rule to show cause because the
father was refusing to pay education expenses for their son. She
sought enforcement of the settlement agreement. Holderrieth, 181
Ill. App. 3d at 201, 536 N.E.2d at 948. The mother then was
permitted to file an amended petition seeking relief under sec-
tion 513 of the Act. The issue involved the son's choice of
school. The son had chosen a trade school and, as the agreement
specifically stated a college or professional school, the father
claimed he had no duty to pay for his son's educational expenses
at a trade school. The trial court based its decision on section
513 and required the father to pay the trade school expenses for
the son. Holderrieth, 181 Ill. App. 3d at 201-02, 536 N.E.2d at
948. On appeal the court concluded the settlement agreement
controlled over the provisions of section 513 (Holderrieth, 181
Ill. App. 3d at 206, 536 N.E.2d at 951) and found the definition
of college or professional school as used in the settlement
agreement did not include a trade school (Holderrieth, 181 Ill.
App. 3d at 204-05, 536 N.E.2d at 950-51). Therefore, the father
was found to have no obligation under the settlement agreement to
pay for a trade school education. Holderrieth, 181 Ill. App. 3d
at 205, 536 N.E.2d at 951.
Richard is not seeking to use the section 513 factors
to avoid paying for one-half of Emily's college education. He is
only asking the trial court to interpret the contract as requir-
ing a reasonable price for that education. He then seeks a de-
termination of what is reasonable under the circumstances of this
case.
In order to make such an interpretation, the trial
court would have to use the factors found under section 513(b) of
the Act. Both the trial court and Richard suggest section 513(b)
factors were not considered but it is clear they were. We find
nothing wrong with their use here. The trial court was not read-
justing the parties' agreed obligations to pay Emily's college
expenses but simply interpreting the contract by determining a
reasonable price.
The standard of living the child would have enjoyed had
the marriage not been dissolved and the financial resources of
both parents are factors specifically set forth in section 513(b)
of the Act. 750 ILCS 5/513(b) (West 1996). There is no evidence
it was the intent of the parties when they entered into the
agreement for college expenses that Emily could attend any col-
lege, regardless of cost. This agreement took place 10 years
before their child was ready for college. If the parties had not
been divorced, they likely would have discussed the best college
situation for Emily and taken into consideration their income,
Emily's interests and aptitudes, and the costs of the various
schools Emily was interested in attending. One of the spouses
would not have simply gone out with Emily and chosen a school
without input from the other parent other than asking him to
write a tuition check. The only way to determine a reasonable
price would be to use the same factors two married parents would
use.
Elizabeth argues the trial court should not be allowed
to compare the price of state schools with that of a private
school to determine reasonableness because a private school would
always be more expensive than a state school. However, as noted
by the trial court, another factor to be considered is whether
there are special programs or attributes of a school that would
make the additional costs of a private school more reasonable
under the circumstances. See Pearson, 111 Ill. 2d at 551-52, 490 N.E.2d at 1277; Spear, 244 Ill. App. 3d at 630, 613 N.E.2d at
360-61. There was scant evidence of that here.
Elizabeth argues the burden of proof is on the party
seeking to determine a price is unreasonable as the complaining
party in both Ingrassia and Roth was required to do. See
Ingrassia, 156 Ill. App. 3d at 494, 509 N.E.2d at 737; Roth, 99
Ill. App. 3d at 684, 426 N.E.2d at 250. She contends Richard did
not show the cost of the University was unreasonable. However,
he did not need to present his own evidence in order to meet his
burden of proof when Emily's testimony itself did not provide
meaningful reasons for her choice of the University over the
state schools. He only needed to show the costs of the state
schools and his finances. The trial court then was able to draw
the conclusion there was no advantage shown to make Richard pay
more than the state school costs, particularly in view of his
financial situation.
We find the trial court did not err in using section
513(b) factors to determine a reasonable price for college ex-
penses. Elizabeth presented no evidence indicating why it was
necessary or more appropriate for Emily to choose the University
over state schools where she was also accepted. Richard's evi-
dence of the lower costs at those schools, coupled with the evi-
dence of his financial means, combined to make the higher costs
of the University unreasonable.
Finally, Elizabeth argued at the time she filed her
motion to reconsider the trial court's findings that Richard
should be estopped from complaining of Emily's choice of schools
because of his acquiescence in allowing her to enroll at the
University. She argues Richard's conduct and words amount to
either promissory or equitable estoppel.
The elements of promissory estoppel are (1) an unam-
biguous promise; (2) reliance on such promise by the promisee;
(3) the promisor expects and foresees such reliance; and (4) the
promisee relies on the promise to her injury. Cullen Distribut-
ing, Inc. v. Petty, 164 Ill. App. 3d 313, 318, 517 N.E.2d 733,
737 (1987). Elizabeth argues the unambiguous promise made by
Richard was his agreement to pay one-half of Emily's college
education expenses. The reliance was the fact the agreement
provided a portion of the consideration for the settlement agree-
ment and her waiver of maintenance as well as all her rights in
any of Richard's property. Elizabeth asserts Richard expected
and foresaw her reliance on his promise when he signed the agree-
ment, approving it as to form and content. Her injury, she ar-
gues, occurred when she paid all of Emily's expenses to the date
of the court hearing and her injury will increase with the re-
ceipt of the initial statement for payment from the University,
which Elizabeth expected in July 1996.
This argument is flawed because Richard has not broken
his promise to pay one-half of Emily's college expenses. This
case involved a contract without a price term, which required the
determination of a reasonable price. This case does not involve
the breach of an unambiguous promise nor did the evidence support
such a finding.
The evidence indicated Richard was willing to pay one-
half of reasonable college expenses. There was no indication in
the record Richard's promise to pay one-half of the college ex-
penses was even part of the reason Elizabeth waived maintenance
and gave up any rights in Richard's property. Finally, Elizabeth
obligated herself to pay for tuition and room and board at the
University without first consulting Richard as to the reasonable-
ness of the costs.
Next Elizabeth argues Richard should be equitably es-
topped from complaining of Emily's choice of colleges. The ele-
ments of equitable estoppel are (1) words or conduct amounting to
misrepresentation or concealment of material facts; (2) knowledge
on the part of the person against whom the estoppel is asserted
that the representations were untrue; (3) the truth of the repre-
sentations must be unknown to the party asserting the estoppel;
(4) the party making the representations must reasonably expect
they will be acted upon by the party asserting estoppel or the
public generally; (5) the party asserting the estoppel must have
relied upon the conduct or representations in good faith; and (6)
the party asserting the estoppel must have so acted because of
such representations or conduct that she would be prejudiced if
the first party is permitted to deny the truth thereof. Vaughn
v. Speaker, 126 Ill. 2d 150, 162-63, 533 N.E.2d 885, 890 (1988).
Elizabeth argues Richard's conduct in failing to file a
petition to modify amounted to concealment of the material fact
he would attempt to modify the settlement agreement at the time
of her enforcement proceeding. She argues his signature on the
settlement agreement coupled with his later successful modifica-
tion of the dissolution order in this case indicated his original
approval of the agreement was a misrepresentation. She had no
way of knowing his representations were untrue and she reasonably
relied on them by both signing the agreement and then enrolling
Emily in the University based upon Richard's promise to pay one-
half of Emily's expenses there. Elizabeth contends Richard must
have intended her to rely on his representations and she has been
prejudiced by her reliance on them. Elizabeth argues Richard sat
by and did nothing even though he knew Emily had decided to en-
roll at the University. She contends he acquiesced in Emily's
choice and should now be estopped from challenging the cost for
her to attend the college of her choice.
The evidence is not so clear-cut, however. The only
mention of the University in the testimony was that Emily once
called Richard and told him she needed $5,000 to attend the Uni-
versity. The testimony indicated the parties never sat down
together to discuss Emily's choice of college, the expenses in-
volved or the available funds to pay for her choice. Perhaps
Emily made her decision based on her and Elizabeth's belief Rich-
ard was responsible for one-half of whatever expense she chose to
incur. That belief was not induced by any misrepresentations by
Richard nor does the evidence show he acquiesced in Emily's
choice of college.
There is no evidence Richard was aware Emily had al-
ready enrolled at the University. There is, however, evidence
Richard obtained information regarding the costs of state schools
to which Richard knew Emily had been accepted. This was some-
thing Elizabeth and Emily did not do. Richard testified he was
not consulted in any way about Emily's specific college plans,
although he was aware she had a general desire to attend college
and he was proud of her academic ability. Elizabeth testified,
however, Richard refused to discuss college plans. The discrep-
ancy here was a credibility issue, which is within the province
of the trial court to resolve. People v. Sanchez, 131 Ill. 2d 417, 426, 546 N.E.2d 574, 579 (1989).
Equitable estoppel was not proved by Richard's failure
to file a petition to modify, which he did not need to do, nor
was there evidence he acquiesced in Emily's decision to attend
the University.
The judgment of the trial court is affirmed.
Affirmed.
GARMAN and GREEN, JJ., concur.
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