divorced on april thirteenth one thousand nine hundred ninety eight they had one son max who was born on july twenty third one nine hundred eighty seven max reached his majority on july twenty third two thousand and five max badger waited from high school on june second two thousand and five thirteen a wannabe act provided that educational support may be awarded by the court after her son or daughter has reached the age of majority provided that they are not otherwise emancipated what does and i believe that one let me just quote the portion of that ship shell contained the contentions of the appellant in the reasons therefore was citation of the authorities in the pages of the record relied on do you believe that would you agree with the portion of the rule that says points not argued or waived and shall not be raised in the reply brief an oral argument or a petition for a hearing should we that's why start out with the initial question how much should we allow you to argue just what we feel in support of the apple e side of the argument but you made a six seven this argument in support so is it fair to us to allow him to argue based on the points that he raised in a brief which we had the opportunity there is not a lot of case there and there are no cases on point to this issues pacifically so whether opposing counsel chooses to cite one case or twenty three cases that is his right to do decision those things ok i believe portion of the reason for the rule is the fact that this court isn't a play advocate and i'm just every day or a difficult time saying i would not be a point advocate based on the  criminal sexual abuse of a minor and his conviction max was sentenced one years reporting supervision and as a condition of that supervision max was admonished by the trial court that any subsequent violation of any criminal statute would result in his immediate incarceration max as an adult was warned against the offender however despite this warning max made a choice max chose to commit the offense as a criminal sexual abuse and indecent solicitation he made those choices as a twenty year old adult max was sentenced to the only department of corrections for three years max was paroled in april of two thousand and nine and has projected discharge date of april two thousand and ten the trial court entered an order relieving krag of any future applications to contribute to max's post high school educational costs or expens as the court found that max's incarceration in the illinois department of corrections to be full emancipating but after max attained his majority and graduated from high school neither parent owed max a duty of support no parent in the state is required to support a son or daughter who has attained their majority pursuant to kragen susan's marital settlement agreement they each agreed to provide educational so to max pursuant to section five thirteen the legislature and writing section five thirteen only provided for educational support for a son or daughter who had retained their majority provided they were not otherwise emancipated if they did so desired the legislature could have allowed awards for educational expenses even in the case of emancipation other than by age but it does not choose to do so marriage and entry into the military service are emancipating events the trial court correctly found that max's incarceration is is is your client currently making monthly payments to provide for expenses for this board no once max reach the age of eighteen and graduated from high school  client was no longer required to pay child support and is that was there any petition to decrease or modified to terminate support filed at any time in this case no because no support was currently being paid so how do we even know that this wild may ever want to go to college i mean are we i don't we're taking a hypothetical question no your honor and i don't believe we are left to guess what he's going to do we know from the record what he did do he chose not to go to college he chose instead to embark on an unfortunate path that led him to the department of corrections as an adult that is what he chose to do but if he's if he's forty years old can they still make a file a petition with the court who he decides at some point in his life he wants to go to college is this is this is settlement agreement cover there i suppose theoretically it could but through max's actions he has left the print group and has just been emancipated but i'm sorry having trouble figuring out why this isn't just a that the parties agreed to follow in the marital settlement agreement is section five thirteen section five thirteen says that the trial court may end its discretion or an educational expenses provided that speaking of children who offend as minors and are found delinquent but when an adult in this state chooses a course of action that leads to criminal conviction as an adult i believe that now look to whether or not we feel the troad judge abused their discretion in this particular case was properly within her discretion to find that the set of circumstances max is going to prison as opposed to going to college wasn't a mess and is looking at your there's been nothing in the record that shows either parent would support a criminal lifestyle in any sense by max going against the wishes of his parents and society and choosing the path that he did which lead toward or to he was in the department of corrections or did he go to the department of corrections from living in an apartment somewhere else away from his parents he was living with his mother when he committed the first offense and was sent to reporting supervision from home from reflect what their intent might have been that they were going to over and above the dissolution at support their child in higher education now i believe their intent can only be contained in the marital settlement agreement there is nothing outside of they simply stated that max's post high school education would be provided for in whatever section of the act was applicable at the time  relied at least on perfect sense max would be a registered sex offender he couldn't be in the vicinity of any public park or private or public schools or right was that part of their i believe the  determination i've i believe that she found the fact that he went into the penitentiary to be a controlling factor she didn't specifically state that other things did that come up at all  our actual self support child is out living on their own making a living or putting a roof over their head they're buying their own groceries marriage and joining the military service now all those require factual both in your grade for forty six you know frankly for these cases or if the court would prefer me to restrict myself to the brief i'm trying to address some of the  used an elbow i believe years suggestion is to know as well as that right yes you're right but procedurally this case comes to us on the petition that was filed to amend the dissolution judgment that had previously incorporated the marital settlement graham to the parties rights corrector on that petition to amend it when the trial court makes that in the first instance what's the standard what's the burden of proof by the addition party what do it's the context of how this case comes to us it did is i think that answer some of the questions for the justices over on this side of the bench that procedurally what happened in the trial court was that that hlne brought a petition the modified post dissolution judgment provided that the parents would share college expenses after max finish how high school past the age of majority  once craig i'm sorry once max was incarcerated mr brown gardner brought a petition to terminate his obligation to pay for those college expenses as they were incurred on the theory of a change in circumstances with which is the standard for modifying a child support obligation mr baumgartner however the record does show there is the transcript of the hearing on that petition the record i'm sorry offhand i don't have the page numbers for appendix mr baumgartner presented no evidence he did on his petition alleging a change of circumstances carry the burden of proof at that point of the court heard only argument counsel there was no evidence arrived at this court the change in circumstances that's the legal standard and then whether the facts of the father situation his income the mother's income the child circumstances if the child does has fewer needs has increased needs certainly changes a change in circumstances can be on the increase needs of the child those then the factual issues that would be subject to  an abuse of discretion standard well in this case mr kurt max was twenty years old right when he was incarcerated that's correct you're right he was going to be in prison for a few years he would come out a registered sex offender right correct your honor and i don't know if you do even dispute whether he really had shown much interest in his education at this point but that that fact was disputed on the petition mr baumgartner had max had started college would be going to tending college she was in college for year well what i'm getting at is if this court believes and i think you stated it this way you said that emancipate whether uncurse ration is an emancipating event is a legal but then whether that emancipation occurred is a factual question that is subject to abuse of discretion right right you're all right so if this court believes that incarceration can be in a man based on those facts makes being twenty years old and curse or rated a sex offender arguably not showing interest in education i know there's a factual issue there where did the trial court go wrong i mean how can we say the tr abused their discretion in saying in this particular case emancipation had occurred unless you're making the argument which you know mr service that that isn't the argument unless you're making the argument that question your first question if i understand you correctly if we take it as a given they have incarceration is really answer paving then we do have the factual analysis we do have the undisputed fact that max committed these crimes pled guilty to them was in jail was twenty years old the disputed fact that is whether or not he had any remaining interest in college and the the court  which i do cite to in my brief don't have the citation off hand or to now top stated specifically that the provision for educational expenses the reason that that stance with zero s is to provide for educational expenses when the need it specifically anticipates that we cannot tell from what's happening today what happened yesterday what that child will need in the future or want in the future or be capable of in the future what about the the sex offender nature the reporting nature and some of the prohibitions that go along with it is further being that a private or public school feel that we factored in are we taking  taken as a given yes i think there needs to be taken into consideration and under the facts of this case what i would like the score to understand is that for macs in particular he can go to college that the particular statute in the code of corrections that restricts the sex offenders access to certain public places does not prohibit entirely anybody's present in offenders presence in a public park they may not loiter there they may not be there when children are there for an adult offender at a place of higher education i believe there's an age limit in the statute but if it is directed towards colleges post secondary education that sex offenders may be there they may attend classes i believe there's a check and requirement in that that every morning when that offender enters the school they must check in with the the dean the principal the you know the chief administrative officer and when they leave the school they must also check out it's a daily routine but it does not preclude a sex offender from attending places of secondary education or his university colleges locational schools it's not limited to two universities there are different requirements that do not apply under the facts of this case there are different requirements an offender entering secondary or certainly primary education daycare centers things like that those they're prohibited from so yes that would be a factual consideration as to my argument the the police argument that incarceration should never be emancipating about it goes to the nature of these factual issues it certainly goes to the nature crime that this young man committed but for the other common law means of emancipation marriage self support the cases that analyze those a factual analysis it's a given that marriage is emancipated emancipating event the courts then look at whether the facts of the case constitute a valid marriage is the child living at home still with their parents where holding the vic ace is that i've seen a believer both or for women are they living with their husband are they self supporting for self for self support those are insurance cases where i've seen self support analysis again is the child living at home are they living in a park and someplace in their own home either earning a living if this court decides to announce a rule that incarceration is emancipating then the fact that you begin to look a not whether or not self support has occurred whether the child is truly out on their own making their way in the world making a positive contribution to society what you're looking at is the nature of the crime how severe is the crime is this crime bad enough to warrant taking child support out with transport obligation what if that's the other way to look at this whole the whole problem mr kerr yes you're if you're suggesting that we he further went on to say that a mess had really truly abandoned any desire for what the record shows because he really only went to one hour or two semesters at oakton community college and received four or failing grade i certainly debate and from the record or take issue with whether or not to be naked fact of max's incarceration by itself weeds to the completion that match didn't want to go to college anymore is there a is there a middle ground that it becomes a factual determination as to whether or not the facts and circumstances of this this case  this person is is is an emancipating event no your honor i don't think so and why not that that brings us into the the policy her which which i think this question is is almost as a legal question is almost entirely a policy question do we want to establish the policy in the state of illinois that once somebody has done something wrong we remove the means of support in means of bettering that means making them a useful citizen and i think a finding a middle ground even a middle ground would you're into the realm of punishment and that's in the realm of the general assembly that that question needs to be addressed by the general assembly picking up on just this burke's highlighting of the sense that what's wrong with justice had abandonment occurred when one of the twenty year old pled guilty to two felonies involving sexual abuse of a child that that showed his intention to abandon his you're going to do something here i think we're all taught not to do i respect justice will see a lot i have had the pleasure of great opportunity to meet the man he is now the dean of my alma mater i believe i read many of his opinions he is a careful jurist he is solid on his law this is a sex crime justice wilson's opinion with all again all due respect to him although  top i believe does stand for the proposition that one may abandon their education in the aisle top hades what was it issue there was a young man who would reach his majority it was not an immense patient question but the father had petitioned to end his obligation size that expensive the provision for college expenses is there for when the need arises they have emphasized that this is a very difficult case because it's a sex crime it is a very repulsive it's very difficult thing to look out but again i urge the court to to remember that we are fashioning a rule here that will try to all and that if we find a middle ground then then on a case by case basis we're asking the the circuit courts to decide the severity of this crime does this crime put me off enough is it if a father is shot tired of his child support obligations child gets into trouble what encouragement is there under rule that incarceration is emancipated what encourage myth is there for parents whose children are in trouble to help their parents or just leave them to the system let's see what happens if you don't have to pay support anymore let's say the child's twelve thirteen fourteen they didn't trouble they serve and don't sentences the that's this question goes beyond the facts of max's case so with you know his very began with with great respect to justice wilson reading that dissent in reading his other opinions i see in that what is unavoidable here that we all have an emotional reaction to these facts and that's why i said i know you're not supposed to do that but honor there are no cases directly on point anywhere in the nation all of the research that the trial court did counsel and i did we couldn't find a single case directly on point people of the state of need guidance on this issue it sends the wrong message to the people of the state illinois to state that if you get married you join the military that's emancipating but if you choose as an adult and we are not asking you to decide anything regarding minors a fifteen year old boosting a car is not before you a twenty year old re offender is before we are asking that choice is made as an adult be treated as such as an adult max made the choice to re offend which led him to prison which led him away from parental control and his family's influences those were choices as an adult i believe the state and the people need guidance as to what is unacceptable and it is unacceptable to say that you can do positive things and be emancipated but if you do a very very negative thing so much though that you offend the laws of the state of illinois and are incarcerated but that's ok the trial court should have the discretion to decide these matters and i believe the trial court appropriately did so and regarding the i'll tough case that child was living at home saving for money for college and had immediate plans to attend a specific did that in this context and there was no there was an agreement by the parties that that the facts that were presented were the facts so there was not there's not any testimony as to th their purview but here under the marriage the dissolution of marriage act the trial court has to deal with what's before it and before the trial court was an adult who chose to follow a path that led to the department of corrections and i believe those facts are controlling i don't believe that it sends an appropriate message that it's ok to be incarcerated parents will still have to