the second case on are called the docket today is case number one one zero nine hundred four peterson kevin pietersen versus janet janet kellogg peterson agenda number town council for the problem you may i represent the petitioner janet kellogg peterson the issue before the court is whether the petition for contribution to college is an initial application for relief or is it a modification of a divorce judgment if the judgment reserves issue i just want to briefly give the court just a few feet over the facts of the case the parties were divorced in one thousand nine hundred nine at the time dr peterson was a general surgeon and janet was a part time hospice nurse the parties had three sons at that time none of the children was in college or about to go into college the divorce judgment specifically reserved the issue of contribution to college pursuant to section five thirteen of the thousand and seven and janet filed a petition to allocate college contribution for the party's three sons about this period of time janet herself had remarried and then had the financial resources to bring about this action at the time she filed her petition the youngest son had recently commence college the oldest child had graduated from cornell a one year prior and the middle child had attended his first year at wake forest university and then transferred to the university of texas the reason janet waited to file her position when she did as she stated in her trial court testimony was that it took her eight years to collect the seventy thousand dollars of the property award that was supposed to be given to her in the divorce judgment she had to initiate garnishment proceedings she had to wait for the bankruptcy settlement she testified that the that in pursuing dr peterson it had been hugely expensive time consuming and emotionally draining she simply could not come to court every year she needed to do this all at one time and then came to court when her youngest child started college because she knew the facts at that time the trial court ordered dr peterson to contribute seventy five it is janet's contention that the pope's court ruling is not supported by the statute it's not supported by the case law and it's not supported by the public policy of the state when janet filed her at but cation pursuant to section five thirteen she was seeking an adjudication of the judgment and not a modification of the judgment and when you look think i don't think the i five thirteen has been is necessarily ambiguous as much as it seems to be interpreted in conjunction with five ten and i don't think there has been a careful reading by the appellate decisions of the language is the language contained within five thirteen and five ten and i'm going to specifically get into that issue right now if i may justice when you look at section five thirteen five thirteen a specifically looks to the issue of support it's not until you get to five thirteen eighty two when you see the issue that the court may also and i emphasize the word also make provision for the educational expenses of the child so you have above it  addressing the issue of support and below it making specific findings than i about the issue of educational expenses when you look at five thirteen be it specifically states that in making awards are and i emphasize or pursuant to a petition our motion to decrease modify or terminate any such award the court shall consider the following relevant factors and i think from the language of the statute itself that  how do you respond to your opponents argument that it's unfair because this these factors that you just alluded to are being taken into consideration at a time other than when the trial court that each and every year dr peterson had outearned her at least by six times every year and he had increased financial ability to pay i do want to turn to section five ten because when yours does the record reflect what the trial court did with that in the trial court consider the come as of two thousand and two or two thousand and six or all of the years in the trial court's order it includes the stipulation of the various years it also concludes that the stipulation of two thousand and six and what the monies were in two thousand and six i'm not sure if the court pointed to any specific year when he made his order but he it is included in his rather lengthy or budget cuts lopez's rather lengthy order all the stipulations of the income of the parties for a period of four to five years from two thousand and two onward when you look at the language of section five ten a which it is specifically focusing on the issue specifically says that any provisions of any judgment respecting maintenance or support may be modified only as t installments occurring subsequent to do notice by the moving party of the filing of a petition or motion for modification the appellate court seems to think that this term support includes educational expenses but when you look specifically at five ten d and e that's when you see the interjection of the term educational expenses and you see it all through paragraph d n e for example the court says the right to petition for support for educational expenses or both under sections five zero five and five thirteen is sting extinguished by the death of the parents you see at that time the court the legislature is specific legislature specific usually interjecting the terms educational expenses and it back term is not included under a therefore we make the point that five ten ages not apply in this case there is no modification of an award because no original award has been met the issue has only been reserved and so it can't be a modification going forward when there has been nothing there to modify also when you look at some of the case law that the court has  various districts have how publish you look at a case like the french case which required the father to reimburse student loans after the child had actually graduate from college the child actually the hearing actually took place after the child graduated also in the weight case you have the or you have the father being ordered to reimburse two thirds of college expenses this this is a president in some of the cases that have been before the court but i think one of the other bigger issues before this court is the whole issue of public policy and in one thousand nine hundred eighty eight this court in the case said the purpose of section five thirteen was to minimize any economic and educational disadvantage to children of divorced parents that's really the purpose of this case and now i recognize  that every child of a divorced parent has an absolute right to college education because there are certain five thirteen b factors like the ability to pay that come into play but it's an important benefit that the parent of a divorce child tries to seek relief under five thirteen and i think when you look at the case law and what has transpired one of the things that the distinction in mind is six and has not been made is really what's the difference you have to think that under five o five you know you have state programs you have the state's attorney who's prosecuting child support that doesn't happen for college for college contribution you have federal programs like four d programs that the state has to adhere to receive economic relief that must be adhered to there is no federal mandate or any federal requirement about contribution to college you also when you think about the amount of just in terms of getting child support it's five o five is a very formulaic guideline that's laid out a push the content of their paycheck to a contender i w two and child support can easily be calculated that does not hold true for college generally you have to look at the five thirteen b factors and then the court has to assess the income and the property of the parties in determining should an award be made or should not award be made stark for just a minute about your position with respect to gregory yes as i understand your position it's that the language of five thirteen only provides a limitation which prevents a petition seeking contribution for a graduate degree it were the stance is already to make provision for education expenses terminates when the child receives his undergrad degree which is the case greg correct and that's what i believe that's why he could not seek relief from the trial court actually i was reading for the on the wrong course the authority under the section to make provision for educational expenses except where the child is mentally or physically disabled and not otherwise in manson mans terminations when the child receives a for money for the undergraduate degree i say yes and here's why judge i have this particular case before the trial court right now where the the mother has filed a petition for college and because of a docking schedule in cook county it appears that we will not be set for trial and till after the child has graduated has she come to court before it's not really from the court yes she's come to court every year almost to seek relief from the court for the for that off father to contribute to college but other things come into play such as the scheduling where her titian is timely filed it's when can the matter be heard so i under applying your analysis the fact that these children graduate after so i guess the question is does the statute say or do you say it doesn't say that the court has authority i'm only talking with respect to gregory i understand authority only until that  undergraduate degrees today it's my distaste was attained prior to even bringing about your correct it's it's it's our position that the that the undergraduate degree obviously was obtained before if before the petition was filed however we are seeking relief and when we looked at the we were seeking relief for that degree is for that child as well when we looked at the legislative history and to try ascertain when this came to be it's one of the general assembly actually removed the age requirements and i am allowed to and there here is and then allowed it to be until and a baccalaureate degree was obtained so basically what i'm trying to say i believe i believe that is proper for the court to at least and that it has the authority to award for the undergraduate degree but nothing beyond the undergraduate degree based on the legislative hearings of the time yes according to your understanding five thirteen court is really with regard to the child of the parents particular case i mean she obviously did not sleep on her rights for years she waited to the last child went to school i think when you look at pases that council has brought up in terms of people seeking relief for child support like the connor case in a really case where people come back fourteen or twenty years i think the court in its discretion could consider that but in this case you have actually some judicially khana me coming into play where you know one person coming to court for all three children to seek application at one time so you're saying it is available you still think it's ok yes i think it's up to the court to have the discretion to make to make that call have so it has someone rested on their rights efforts have they made has the father been unable to be found over a period of years or a period of time those are all factors i believe the trial court has the right to consider i just wanted to continue by saying that i think that when this court reviews the reviews the statutes because you have the ability to look at everything to novell i think that you can see that the appellate court really needs to be reversed and the trial court  because it's janet who's actually making an initial application for an adjudication of the judgment she's not seeking to modify at and the reservation of the issue in the judgment does not does not actually make an award and so when you look at the language of five thirteen i think clearly under b she's making award and the retroactive application to five ten do not apply if you think your position would be different if there was no reservation in the original agreement incorporated in the judgment it would be different because of this i think the reservation has given mr dr pierce the notice that that either party has the right to come to court and seek relief if there was if the judgment was silent in that regard i would think that a claim might be able to be made that they weren't aware of the law in illinois some claim such as that but i think the actual reservation has made it very clear that either party had the right to come to court and seek relief so your time's out but i just want to ask this when you said either party there's nothing in five thirteen or five ten or any statute that dictates who must bring the petition is that correct time exactly all right thank you counsel for the  makes a difference if there were no reservation in the second second question is it was there anything that prevented your client from bringing a petition earlier to establish there was nothing to prevent it and chief justice killed write clearly  a petition but i do think that your question is important on that and what is and what is not a modification you have an original nine hundred ninety nine judgment that says the issue of college expenses it is reserved that's one could put it that that's an award of zero dollars to either side for college expenses when years later in two thousand and seven there's a petition filed and there is an award pursuant to that petition i think in a general sense just as perky he he knew his son was going to college and there was conflicting testimony about letter writing and things of that nature as to what the details of going gregory going to cornell were but other than a general gregory's going to college there was no specific disclosure or petition saying here's the tuition here's the room and board here's the books here all the details and i'm assuming and this is peterson testified she was assuming dr peterson would pay for most of this there was no such  disclosure of course in a general sense he knew about that sadly his relationship wasn't great at that point with his son but that i don't think that's really dispositive so we don't dispute that generally was taken to mean zero dollars zero zero dollars at that point justice thomas i'm not saying i made zero dollars in future zero forever i think at that point there was a decision made that on on the college expenses there would not be either a dollar amount at tributed because nobody was in college at that point or a percentage allocation and it could you could have that without dollar amounts  i think it was a decision that we're going to leave it where it is that issue where it is at the moment for for subsequent consideration but as we say in our brief when there is then an award made and i admit i've never cited black's law dictionary this court before but it defies modification as a change to something and i think the focus yes we have to focus on the one thousand nine hundred judgement but the fact is when that petition is filed in two thousand and seven and an award is made that is a change to something so you have an issue that is mentioned but not disposed of entirely and then you have an award both in terms of dollars and percentage allocation that is a change alteration however one wants to look at it and justice broke i don't mean to be disrespectful in answer your question this way i think the initial nine hundred ninety nine judgement is a decision or judgment not to decide specifics but to deal to know that th issue has been considered but not completely disposed of but if if or if the court reserves it's not case the pataki case there's another one sided which had treated this very topic as a final judgment as a judgment that reserves the issue for subsequent complete adjudication those cases have been the law this state for twenty years when this petition was filed in two thousand and seven those cases had been on the books for twenty years and the legislature never indicated any displeasure whatsoever with that that treatment of a reserved issue and then subsequent adjudication the connor case i'm sorry which a fourth one dealt with child support generally and then the other three deal with education expenses specifically and all of them unanimously in an unbroken line of decisions have said that a petition to allocate child support and education expenses is a petition to modify even though the original issue was reserved so i think by therefore we're dealing with a final judgment that's being that's being modified to answer your direct question to me as to whether it was a final judgment and i think here the timing is crucial and i think i believe justice to this in his question we have a nine hundred ninety nine judgment and then a two thousand to three years later gregory goes to cornell there's no petition filed at that point in time dr peterson was not working as a doctor in two thousand and two he was working as a computer programmer making ninety four thousand dollars a year that was his status for the next four years the entire time while gregory is at cornell dr peterson is not practicing medicine he's practicing computer programming earning ninety four thousand dollars a year thereafter he goes back to the practice of medicine and by the end of two thousand and six he's making two hundred forty thousand dollars a year so his circumstances change dramatically in at the time right mediately before the time of the filing of this petition under petitioners theory they have an unlimited period of time to file a pacific they well the real issue is what amount of occasional right or not right because if it's a modification the at least the appellate case i would say that no retroactive application right that and the issue you raise justice thomas on the express statutory provision as to gregory that you can't regular court didn't have a regular forty at all after the fact yeah gregory's of a second issue i carry with it but if we look at just the language it says in making awards under paragraph one or two into would be the educational expenses of subsection a or pursuant to a petition or a motion to decrease modify which is your position or terminate any such award so is it that there are clear language it says in making awards and then considered in the original word rather than a modification otherwise what is the or me well i think that the or means that what chief justice kilbride was alluding to when when he asked me to start with where he left off which is this if if college education expenses were never mentioned at all in the original judgment silent child support silence and then somebody can still file a petition under that section under the disjunctive or and come in and say i want to original award of child support or educational expenses it at that point one could argue i don't want to be understood as conceding the point but but because we're relying on for appellate cases that have been decided over twenty years that say it is as a matter of law a modification even when we've never looked at it right i agree with that ok that's absolutely true but  here you have a considered recognition that this is an issue for the parties but an issue we're not going to quantify or allocate in a percentage way until another time and and i understand of course position but respectfully on behalf of dr peterson i think one needs to go to the next point was which is if it is not a modification what limit is there on the petitioners ability to come in and ask for a so called original award multiple multiple years after the fact i mean my daughter took eight years to finish undergraduate if one can imagine there are many other situations out there that are analogous under th scenario the petitioner can just wait and wait and wait and come in years later and say oh by the way i want reimbursement which implicates when you determine what the resources of the parties ward are and i think is a matter of public policy since public policy is being raised here i think the public policy of illinois surely is that both parties should have input on their  justice but we do not dispute that he could've been the petition as his council lou to he was going through a bankruptcy he came out of it became a computer programmer didn't practice medicine for a while obviously there was evidence of his dislocations and financial difficulties sure he could have retained counsel we don't we don't dispute that point but what we do argue is i this on the crucial modification question five thirty says the court may award for the support of the child or children educational expenses of the child or children counsel says in her brief this is in the nature of support i would argue to this court it is support the statute says it is support there is no in the nature of and given the fact that it is child support what we're talking about here it's it may not be groceries but it's another form of child support therefore the  for child support should apply just like it does and any other child support context so you really you raise an interesting point you are just irks question about timing activity which is analogous to a land she's argument that ok the law on petitions is that relate any recovery relates back to the date of the filing of the petition after all he didn't trial counsel never contended that as to ian and ellis the other two sons here that there could be retro activity from the date of the filing a petition we've talked a lot about gregory this morning but we conceded the point that if there are a prospect of expenses that apply after the petition is filed that that's recoverable i think what was made was somewhat of a latch as argument  if my memory serves me correctly leches lack of diligence and prejudice and i think you would you might be fomenting fact based litigation on was there prejudice or wasn't there prejudice the petition is filed whatever award is made is retroactive to the date of the filing the petition that's our principle as justice thomas said that's our principle argument on appeal that's that's pretty straight forward everybody was such a rule there is no fact based issue once the petition was on file that's it it could be retroactive to that date and prior to that date writing letters general awareness of of kids in college and that nature is not disp i would never say there's no at that i mean we're dealing with there's there's been a bright line rule in so far as how the appellate court has treated the issue and we would argue in so far as how the legislature has treated the issue they've denominated in five thirteen educational expenses as child support and child support under five ten their word of child support is only retroactive to the date the petition is filed so and let me go one step further justice if the court is going to apply an equitable standard here i i think that the issue raised by justice commoner is very important because when gregory starts college his father is making money as a computer programmer that that increases five or six years later when he goes back to presidency medicine so if one is going to start balancing equities i think one has to look at all the equities and not merely one cannot change the fact that educational expenses for post majority children is is child support and therefore we would ask this court for the reason allocation because it is our position that one can only look at that allocation as based upon the two thousand and six and thereafter physicians income of d peterson and not on his two thousand and two and three and four and five income as a computer programmer when these when his first child gregory and ian who by the time th petition is file was a junior in college was was was a lot less that income was a lot less when the first two kids start college than what the allocation is based upon at the time of the hearing and at the time of the petition i thank the court for the court's consideration thank you yes i did want to start the season clarify one thing because i know justice o'connor had asked about the incomes of the party and counsel he was making point of the fact that in two thousand and two dr peterson had moved to nevada and wasn't licensed to practice in nevada and therefore was earning only ninety four thousand dollars a year however the record is clear and i found my notes on this that from two thousand and three in two thousand and six janet had a combined total income of one hundred forty thousand four hundred ninety nine dollars dr peterson from two thousand and three to two thousand and six had earned eight hundred seventy seven thousand five hundred three dollars during that time period just to clarify that issue counsel has also raised the issue of me saying that educational expenses are in the nature of support and there is a vote for a decision that determined that modification of of a college contribution award is in the nature of support and therefore they uses section five ten i'm not disagreeing with the loaf weighty decision because i think that a modification is has it should be allowed however i do disagree with the fact that educational expenses equate to child support and i think when i pointed out previously when i was right before you that there is a distinction in the statute between making an application a versus making a modification and i'm not going to query with profanity case however the cases that counsel cited in his brief that he referred to were cases specifically with child support when you're talking about the connor case and then a rainy case in the conner case a party waited fourteen years to come back to seek retroactive relief and was to nod in the renia party waited years to seek retroactive relief for child support and was denied and that as i say child support is not the same as college education because at the time a judgment is entered or parentage judgment is entered there is ample opportunity for an award of child support at that time you could have the state involved to help support that the number of the parties income is known the number of children are now on a reservation in a child support order is vastly different than the reservation and and a judgment for divorce when the parties may not know what school the children may attend the parties will not know what their income and assets are in the future those factors are  different and i and so i think that to equal the child support and educational expenses the statute doesn't do it and i don't believe that this court should interpret it in the same vein he mentions the pataki case which also was silent deal with college but it was silent absolutely silent with regard to the issue of of the college contribution so just as justice kilbride had asked me about the difference between a reservation and silence i think we do see some distinction where silence they were denied because the parties weren't put on notice that this could come forward in this case distinctly different because there's a reservation and either party could come forward and seek relief from the trial court now the council has tried to make the argument that a judgment award a reservation is actually a judgment award of zero and i i agree with justice purpose there are zero it's just a reservation that's all it is there has been  application there's been no adjudication it's just not enough information to make any specific finding at that time i think that when you look at counsel's position and his his term that no relief should be granted prior to the following filing of opposition from modification application because he deems them both the same it really begs the question to this court when is an appropriate time to come and seek relief from a trial court as it is with the way the peterson decision is now i can assure you since i practiced in syria that there have been people who have been filing when their children are juniors and seniors in high school because that's when they start accruing across for college you have the s a t tests you have tutors for the s a t test you have college application costs you have all of these things going on without even a final determination of what school this child may go to so technically you can have a case pending in court waiting for additional information while a party is just trying to preserve their right to get reimbursed reimbursement for their right to get some allocation of the expenses that they're advancing for a child to go to any particular college so if you adopt his the view that is now once the appropriate time high school do we come back and i think that as he made the point with his own child and the cost of college and the number and the number of years it's taking people to go to college for example people because of the economic circumstances the country finds herself in now a lot of people are going to junior college before they make a decision about going to a major university people take a semester off all this is inviting more and more litigation and as i said previously a college hearing is not the same as a child support hearing it child support hearing can don't be done rather expeditiously with a paycheck with a w two form when this court court has to consider the income the property of the parties you're talking about a substantial issue in terms of the lack of judicially khana me that it would take take for a party to have one child or two children go through the process and to seek relief from the court i think they are when you look at the plain language of the statute as we've discussed here under five thirteen i think it's rather clear that miss janet yellen peterson was merely seeking an application and an award of college education i don't believe that that award was time barred by the language and five thirteen counsel is trying to bootstrap in statute five ten i'm on a modification basis to try and limit her recovery which i don't believe is appropriate in this circumstance and that reason i believe the court should reverse the appellate court's decision on the issue of retroactivity and affirm the seventy five percent allocation that it's a order dr peter