In re Marriage of Wilhelmsen, 2019 IL App (2d) 180898

1. Case citation and parties
In re Marriage of Wilhelmsen, 2019 IL App (2d) 180898 (Oct. 24, 2019). Petitioner-Appellee: Suzanne Wilhelmsen; Respondent-Appellant: Thilo Wilhelmsen.

2. Key legal issues
- Whether trial court abused its discretion in allocating post‑majority higher education expenses under 750 ILCS 5/513.
- Whether contributions (including payments of an MSA arrearage deposited into Section 529 plans) must be credited against a former spouse’s future obligation to pay a nonminor child’s college expenses under § 513(h).
- Whether bankruptcy classification of an arrearage as a nondischargeable domestic support obligation affects modifiability of the debt or crediting.

3. Holding/outcome
The Second District affirmed. The trial court’s allocation of 40% of Z.W.’s college expenses to Thilo (60% to Suzanne) was upheld, and the court properly declined to credit Thilo’s monthly 529 contributions (made pursuant to the MSA as repayment of an arrearage) against his § 513 obligation. The bankruptcy court’s nondischargeability ruling did not make the MSA arrearage modifiable.

4. Significant legal reasoning
- Standard of review: allocation of educational expenses—abuse of discretion; statutory interpretation—de novo. The appellant failed to provide the trial transcript or exhibits from the evidentiary hearing, so under Foutch the appellate court presumed the trial court applied the § 513(j) factors properly.
- § 513(h) treats preexisting 529 accounts as a resource of the child and directs courts to consider contributions “a contribution from that party,” but the court rejected the appellant’s contention that § 513(h) mandates automatic crediting of all 529 contributions against later awards. The statute’s language and structure show the accounts are a factor to consider (child resources) rather than a categorical offset against parental obligations.
- The MSA expressly required the arrearage payments to be placed in the children’s 529 plans; those payments were not “involuntary” in a legal sense and the agreement contained no provision that such payments would reduce future § 513 obligations. Finally, classifying the debt as nondischargeable in bankruptcy does not render it modifiable.

5. Practice implications
- Draft MSAs to state explicitly whether 529 contributions (or repayment of arrearages placed into 529s) will be treated as offsets or credited against future higher‑education obligations.
- If a party seeks credit, preserve a trial record and present evidence on all § 513(j) factors; omission of the transcript risks presumption in favor of the trial court.
- Understand that bankruptcy nondischargeability does not change modification rights; to alter property distribution or arrearage terms, obtain mutual agreement or meet the high standard for reopening a final judgment (750 ILCS 5/510(b)).