Jim Dey | Dad's challenge over order to pay for daughter's college has big implications

Jim Dey | Dad's challenge over order to pay for daughter's college has big implications

Charles Yakich was more than willing to pay for his daughter's college education, but not at what he considered to be a "party school" in Florida.

So he challenged a court order requiring him to pay 40 percent of his daughter's college expenses. By the time the litigation concluded earlier this month in DuPage County Circuit Court, Yakich not only was excused from contributing financially to his daughter's college education, but also won a potentially groundbreaking judicial ruling that held a state law requiring either divorced or never-married parents to contribute to a child's college education to be unconstitutional.

The reason it is unconstitutional, Judge Thomas Else ruled, is that since married parents can't be compelled to pay for a child's college education, neither can never-married or divorced parents.

Yakich "contends that he has been denied equal protection of the law because (Illinois law) requires the parents of divorced or unmarried couples to pay for the college expenses of their children, while not requiring the same of married couples," Else stated in his written ruling.

While Else's ruling is significant to the litigants in this case, it remains only potentially significant to Illinois residents. Unless and until Else's ruling is affirmed by the Illinois Supreme Court, its effect is confined solely to this case and current law stands.

If the ruling is appealed, it will go straight to the high court for resolution, as is always the case when a state trial court holds any Illinois law unconstitutional.

Vince DiTomasso, Yakich's lawyer, speculated the other side may not appeal because both parties are well off financially, the daughter is already almost done with college, and it may cost more in time and money to appeal than it is worth.

"From a pure economic point of view, I'm not sure it makes a lot of sense" to appeal, said DiTomasso, who indicated it could cost "six figures of attorney's fees."

"What the upside? I don't know," he said.

Opposing lawyer William Arendt was unavailable to comment.

The dispute in the case of Yakich vs. Aulds had nothing to do with Yakich's willingness to pay for daughter Dylan's college education. He supported her desire to pursue a degree in marine biology, took her on "many dive excursions" to exotic locales and was willing to pay all of her expenses at the Scripps Institute of Oceanography in San Diego or at the University of Hawaii.

But, without consulting Charles Yakich, Dylan and her mother, Rosemary Aulds, decided she would attend Florida Gulf Coast, which does not offer a marine-biology degree.

At the time Else held a 2016 hearing in the case, Dylan was 21 and an upperclassman at Florida Gulf Coast.

To win the issue on constitutional grounds, DiTomasso had to overcome a 40-year-old ruling upholding the constitutionality of requiring divorced or non-married parents to pay for their child's college education.

In that 1978 case — Kujawinski vs. Kujawinski — the high court held that different rules were justified because "children of divorced parents were less likely to receive assistance from their parents for college education than children of married or single parents."

That ruling was predicated on what the high court called a "normal family relationship" — two married parents in a household. But what was normal in 1978, DiTomasso argued and the judge agreed, is not normal now because of steady family disintegration.

"...in 2018, (two-parent, married families) make up less than half. In fact, if considered in statistical terms, children from either non-married or divorced parents would be considered 'normal' based on today's demographics. Unmarried women account for 40 percent of the birth rate in the United States as of 2014. The divorce rate in Illinois as 2011 was 46 percent," Else wrote.

He concluded that the legal standard used in Kujawinski "presumes that never-married or divorced couples are less normal and less likely to provide post-secondary education for their offspring than couples who are married, or single parents. While this may have been true in 1978, there is no basis for such a conclusion today."

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

-