In rе MARRIAGE OF TENNESSA S. SPIRCOFF, Petitioner, and ROBERT M. SPIRCOFF, Respondent (ROBERT M. SPIRCOFF II, Third-Party-Beneficiary-Petitioner; Trustee of the Robert M. Spircoff II, Trust, Third-Party Respondent).
Docket No. 1-10-3189
Appellate Court of Illinois, First District, Third Division
October 19, 2011
2011 IL App (1st) 103189
JUSTICE SALONE delivered the judgment of the court, with opinion. Presiding Justice Steele and Justice Murphy concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County, No. 87-D-1716; the Hon. Mark J. Lopez, Judge, presiding.
Judgment: Certified question answered.
OPINION
¶ 1 This permissive interlocutory appeal pursuant to
“If the ruling in Petersen bars a party from contribution from a former spouse from contribution for college expenses incurred prior to the date of filing of a petitiоn brought pursuant to
750 ILCS 5/513 , does the same bar to retroactive relief for college expenses incurred prior to the filing date apply to a petition brought by a third[-]party beneficiary to enforce a provision of his parents[‘] marital settlement agreement to contribute to his college education[?]”
¶ 2 We granted third-party bеneficiary‘s petition for leave to appeal and answer the certified question in the negative.
¶ 3 Although neither petitioner, respondent nor third-party respondent has filed a brief on appeal, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976).
¶ 4 BACKGROUND
¶ 5 Third-party beneficiary commenced this breach of contract action on February 2, 2009, to enforce a provision of his parents’ marital settlement agreement that was incorporated into the parties’ dissolution of marriage judgment and concerned the payment of his college
¶ 6 The trial court noted in its written order of October 15, 2010, that unlike in Petersen, the moving party in the instant case sought relief as a third-party beneficiary and filed his petition after he completed his college education. Paragraph seven of the parties’ marital sеttlement agreement, which was entered on January 28, 1988, provides that “[e]ach of the parties shall contribute to the trade school or college and professional school education expenses of their child in accordance with Section 513 in the Illinois Marriage and Dissolution of Marriage Act, Illinois Revised Statutes Chaрter 40.” The trial court concluded that the language in paragraph seven of the marital settlement agreement was a reservation of the issue of college contribution and not an enforcement as argued by the third-party beneficiary because it “failed to describe a sum certain or a percentage obligatiоn of either party for the Court to enforce and reserves that determination for a future hearing pursuant to 513 of the Act.” The trial court further noted that the issue was proper for an interlocutory appeal and subsequently certified the question that is the subject of this appeal under
¶ 7 DISCUSSION
¶ 8 Our scope of review is governed by
¶ 9 Third-party beneficiary makes the following contentions on appeal: (1) Petersen applies to a parental contribution not a child‘s сontractual enforcement of a divorce judgment; (2) he can only seek a remedy in contract as he has no standing to pursue relief under the Act; and (3) the instant matter is clearly distinguishable from Petersen because the provision contained in the parties’ marital settlement agreement was not permissive or discretionary as it contained the word “shall.”
¶ 10 As a preliminary matter, we note that it is clear that an adult child of divorced parents has standing to enforce the educational provision of the divorce decree on the basis that he or she is a third-party beneficiary. Orr v. Orr, 228 Ill. App. 3d 234, 238 (1992); Miller v. Miller, 163 Ill. App. 3d 602, 612 (1987). Moreover, children who are beneficiaries under a contract
¶ 11
“The court may also make provision for the educational expenses of the child or children of the parties, whether of minority or majority age, and an application for educational expenses may be made before or after the child has attained majority ***.”
750 ILCS 5/513(a)(2) (West 2008) .
It is well settled that orders entered pursuant to section 513 are always mоdifiable. In re Marriage of Loffredi, 232 Ill. App. 3d 709, 712 (1992). Such orders remain modifiable because a provision for payment of college expenses is in the nature of child support, rather than a property settlement. In re Marriage of Dieter, 271 Ill. App. 3d 181, 190 (1995).
¶ 12 Turning to the question on appeal, we begin with a discussion of this court‘s holding in Petersen.
¶ 13 In Petersen, 403 Ill. App. 3d at 840-41, the parties were married on September 1, 1983, and three children were born to thе marriage. A judgment for dissolution of marriage was entered on August 27, 1999. Petersen, 403 Ill. App. 3d at 841. With respect to the college expenses of the children, the judgment provided:
“The Court expressly reserves the issue of each party‘s obligation to contribute to the college or other education expenses of the parties’ children pursuant to sectiоn 513 of the [Illinois Marriage and, Dissolution of Marriage Act].” (Internal quotation marks omitted.) Petersen, 403 Ill. App. 3d at 841.
On May 7, 2007, the former wife filed a petition requesting an allocation for college expenses for the children; however, the oldest child had graduated in 2006, and the youngest two children were then attending college. Petersen, 403 Ill. App. 3d at 841. As previously discussed, the Petersen court concluded that because “the judgment of dissolution of marriage did not determine whether the parents were required to pay the college expenses of the children (a form of child support), but reserved the issue to be decided in the future,” the wife‘s “petition for allocation of college expenses was in the nature of a modification of child support under
¶ 14 Since Petersen was filed, this court has had another occasion to consider the issue of whether under
¶ 15 The Chee court noted that the decision in Petersen did not preclude adjudication of the petition for educational costs, because unlike Petersen, where the petition was filed eight years after final judgment in the dissolution case, no final judgment had been entered in the pending case. Id., ¶ 17. Additionally, the court noted that while the children‘s college expenses slightly predated the petition for dissolution, they could have properly been considered during the pendency of the suit contemporaneously with other ancillary issues. Id., ¶ 17. Alternatively, the court found that petitioner‘s section 513 petition could рroperly be construed as a timely motion to reconsider, and that under either scenario, the court could properly consider the petition for both children‘s educational expenses and that Petersen did not control. Id., ¶ 17.
¶ 16 Our supreme court granted leave to appeal in Petersen to determine the appropriate means by which to apportion postdissolution decree college expenses where the judgment of dissolution reserved the issue for future consideration. Petersen, 2011 IL 110984, ¶ 1. The court affirmed the appellate court‘s decision that support could not be ordered for expenses which predated the filing of the wife‘s petition, although it reversed the portion of the appellate court‘s decision related tо the proportion of educational expenses the husband was to pay. Petersen, 2011 IL 110984, ¶¶ 18, 25.
¶ 17 Turning to the instant case, we find it to be distinguishable from Petersen. First, we note that unlike the situation presented in Petersen, here the obligation of the parties for educational expenses was clearly and affirmatively stated and was not expressly reserved. We reach this conclusion even though the actual alloсation of those expenses was not made at the time the judgment of dissolution was entered.
¶ 18 Support for this conclusion is found in Orr. In Orr, the court found that the father‘s obligation for educational expenses was affirmatively stated in the marital settlement agreement as follows: “Husband desires that the minor children shall attend a college or
¶ 19 Additional support for this conclusion can be found in In re Marriage of Albiani, 159 Ill. App. 3d 519 (1987). In Albiani, the marital settlement agreement incorporated into the judgment for dissolution contained the following provision: “That the parties shall pay and be equally responsible for the tuition, room, and board and reasonable transportation expenses in connection with MARK ALBIANI‘s pharmacy school expensеs.” (Internal quotation marks omitted.) Albiani, 159 Ill. App. 3d at 522. On appeal, the appellant argued that the trial court had erred in its judgment of dissolution by failing to adjudicate the ultimate responsibility for payment of the future academic costs of the parties’ minor child. Albiani, 159 Ill. App. 3d at 525. The court affirmed, noting that should the parties in the future disagree as to how to divide the child‘s aсademic costs, the circuit court retained jurisdiction to settle the dispute. Albiani, 159 Ill. App. 3d at 526-27.
¶ 20 We read paragraph seven of the parties’ marital settlement agreement in the instant case in the same manner. Both parties expressly and affirmative agreed to be responsible for the college educational expenses of third-рarty beneficiary and such expenses were not expressly reserved by the trial court. Any dispute as to the parties’ individual contribution could always be settled by the trial court, which retained jurisdiction to make specific allocations for that contribution. See Loffredi, 232 Ill. App. 3d at 712 (orders entered pursuant to section 513 are always modifiable). In cоntrast, the marital settlement agreement at issue in Petersen expressly reserved the issue of college expenses for the trial court to decide. See also In re Support of Pearson, 111 Ill. 2d 545, 551 (1986) (educational expenses clause in the property distribution reserved the question of educational expenses under section 513 until a later date).2 We therefore find the holding in Petersen to be inappliсable to the present case as educational expenses were not expressly reserved for future consideration by the trial court.
¶ 21 Moreover, we conclude that Petersen is inapplicable to the present case because this is an action by a third-party beneficiary seeking enforcement of the provisions of a marital settlement agreemеnt, which is, by nature, a breach of contract action, and not an action to modify a section 513 order. See Miller, 163 Ill. App. 3d at 612 (a third party who is the direct beneficiary of a contract has standing to enforce the obligations for his benefit incurred under that contract). In Miller, the trial court dismissed the child‘s motion to compel his father to comply with the mаrital settlement agreement and divorce decree to pay his college
¶ 22 The same conclusion is warranted in the instant case. Here, third-party beneficiary filed a breach of contract action, seeking to compel respondent‘s compliance with the marital settlement agreement by which both of his parents agreed to pay his college expenses.
¶ 23 For the foregoing reasons, we therefore аnswer the certified question in the negative, finding that the holding in Peterson does not bar an action by a third-party beneficiary to retroactively enforce a provision of his or her parents’ marital settlement agreement related to payment of educational expenses where such payment of such expenses was not exprеssly reserved for future consideration by the trial court in the initial proceedings.
¶ 24 CONCLUSION
¶ 25 Certified question answered.