Agreements

Parents can override the provisions of the statute by private agreement provided they do not do so in a way that the court finds unconscionable or not in the best interests of the child. See Blisset v. Blisset, 144 Ill.App.3d 1088, 495 N.E.2d 608, 99 Ill.Dec. 161 (4th Dist. 1986)(mother’s indication that she did not expect father to contribute to college expenses not binding on court at later proceeding), aff’d in part, rev’d in part on other grounds, 123 Ill.3d 161 (1988). The parents can, for example, redefine the types of expenses they wish to cover; make specific allocation of the expenses, including creating obligations for the child to contribute to the expenses as they deem appropriate; and limit the types of schools or programs. If the parents do make an agreement defining and/or allocating the educational expenses, then IMDMA §513 is not applicable (unless their agreement is simply to apply §513 at a later date). In re Marriage of Houston, 150 Ill.App.3d 608, 501 N.E.2d 1015, 103 Ill.Dec. 698 (5tyh Dist. 1986); In re Marriage of Holdrrieth, 181 Ill.App.3d 199, 536 N.E.2d 946, 129 Ill.Dec. 896 (1st Dist. 1989). Thus, parents can, for example, agree reasonably to limit the type of school for which they will agree to pay. Holderrieth, supra (vocational school attended by child not covered by parents’ agreement regarding college expenses; agreement enforced as written).

If one parent has agreed to pay college expenses but the amount or nature of the expenses is not precisely stated, the court will set them at a reasonable amount, Ingrassia v. Ingrassia, 156 Ill.App.33d 483, 509 N.E.2d 729, 109 Ill.Dec. 68 (2d Dist. 1987). Until that amount is set, however, a contempt proceeding to enforce the obligation will be ineffective, so a petition to modify and allocate the educational expenses must be brought if the agreement is imprecise as to the responsibilities of the parents.

In In re Marriage of Schmidt, 292 Ill.App.3d 229, 684 N.E.2d 1355, 226 Ill.Dec. 152 (4th Dist. 1997), Elizabeth Miller filed a petition to enforce a provision of the settlement agreement incorporated into the judgment for dissolution between herself and the respondent, Richard Schmidt, Jr., that required him to pay one half of their daughter’s education 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. The petitioner appealed, contending that the trial court did not enforce the judgment as entered but modified it to include a requirement that the college costs be reasonable and, in so doing, improperly based its decision on factors under IMDMA §513(b). The appellate court affirmed the trial court, holding that the agreement did not set forth a specific price or even a method by which a specific price could be determined but only established 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, 493 N.E.2d 117, 119, 97 Ill.Dec. 635 (2d Dist. 1986). Additional support for finding that a reasonable price is implied in an agreement between two divorcing parents when one is required to pay for an expense of the children may be found in In re Marriage of Roth, 99 Ill.App.3d 679, 426 N.E.2d 246, 55 Ill.Dec. 271 (1st Dist. 1981).

A parent’s marital settlement agreement that obligated him to continue making child support payments until a child’s full emancipation (defined to be the first of the child’s reaching 23 or completing college) as well as to pay a certain percentage of that child’s college expenses was found to be enforceable and not to create a windfall for the former wife and child in In re Marriage of Mulry, 314 Ill.App.3d 756, 732 N.E.2d 667, 247 Ill.Dec. 612 (4th Dist. 2000).

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