In re Marriage of Vondra
Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
In re Marriage of Vondra
,
Appellants; Eugenia Sabadaska, Plaintiff; and David Vondra, Individually and David Vondra as Trustee of the David Vondra Revocable Trust Dated November 20, 2007, Defendant).
District & No. Frist District, Second Division
Docket No. 1-12-3025
Filed June 28, 2013
Held The trial court properly dеnied the motion of the parties’ adult children to intervene in the marriage dissolution action, notwithstanding their ( Note: This syllabus contention that the divorce judgment might have an adverse effect on constitutes no part of the opinion of the court their interest in having their college expenses paid, since there was no but has been prepared settlement agreement providing for college expenses that gave the by the Reporter of children rights they could enforce as third-party beneficiaries, provision Decisions for the for post-high school expenses is discretionary, not mandatory, respondent convenience of the mother’s request for educational expenses showed that she would reader. ) adеquately represent the children’s interests, and the children’s rights
under section 506 of the Illinois Marriage and Dissolution of Marriage Act applied only to minors.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 10-D-10580, 12- CH-06686 cons.; the Hon. Carole K. Bellows, Judge, presiding. Review *2 Judgment Affirmed.
Counsel on Paul L. Feinstein, Ltd., of Chicago (Paul L. Feinstein, of counsel), for appellants. Appeal
Deutsch, Levy & Engel, Chtrd., of Chicago (Melvyn H. Berks, of counsel), for appellee.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Connors and Simon concurred in the judgment and opinion.
OPINION Appellants Nicholas and Michaеl Vondra appeal the order of the circuit court denying
their motion to reconsider its determination that Nicholas and Michael have no standing to intervene in the marriage dissolution proceedings of their parents, David and Mika Vondra. On appeal, Nicholas and Michael contend the trial court misapplied the law and should have allowed joinder pursuant to section 2-406 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-406 (West 2010)), since a judgment in the proceedings regarding the payment of their college expenses could adversely affect their interests. Alternatively, Nicholas and Michael argue that the trial court should allow them to intervene as a matter of right in the dissolution proceedings pursuant to section 2-408 of the Code (735 ILCS 5/2-408 (West 2010)). For the following reasons, we affirm. JURISDICTION The circuit court entered its order on May 22, 2012. Nicholas and Michael filed a motion
to reconsider on June 21, 2012, which the trial court denied on September 20, 2012. The [1] court also made a finding pursuant to Illinois Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) that “there is no just reason for delaying appeal.” Nicholas and Michael filed a notice of appeal on October 11, 2012. Accordingly, this court has jurisdiction pursuant to Rule 304(a) governing appeals from judgments entered below as to fewer than all parties or claims.
*3 ¶ 4 BACKGROUND
¶ 5 David Vondra filed for divorce from Mika on October 28, 2010. The parties have two
adult children: Nicholas, who was born on Dеcember 18, 1992, and Michael, born on March 11, 1991. The divorce case is pending before the circuit court. Eugenia Sabadaszka, Mika’s mother, also filed a claim in chancery against David seeking $68,000 for monies she contends belong to her. Her case was consolidated with David and Mika’s divorce case.
¶ 6 On December 21, 2011, Mika filed a petition pursuant to section 513 of the Illinois
Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/513 (West 2010)). Her petition requests that David contribute toward the college expenses of Nicholas and Michael, as well as to Mika’s living expenses while the children reside with her. In his response, David stated that Michael has assets totaling $85,832 and Nicholas has assets totaling $126,961, much of which is in a “college fund” for purposes of providing them a college education. He also alleged that Mika was alienating their children agаinst him. Mika was granted leave to file an amended petition. On April 9, 2012, Nicholas and Michael filed a motion for leave to be joined pursuant to section 2-406 of the Code.
¶ 7 The trial court denied the motion on May 22, 2012, finding that Nicholas and Michael
did not have standing under section 513 of the Marriage Act to bring their own claim since the dissolution proceedings are pending and no judgment of dissolution or settlement agreement yet exists. On June 21, 2012, Nicholas and Michael filed a motion to reconsider which the trial court denied on September 20, 2012. The trial court made a finding pursuant to Rule 304(a), and Nicholas and Michael filed this timely appeal.
¶ 8 ANALYSIS Nicholas and Michael argue that they have standing to bring their own claim in their
parents’ divorce proceeding, and the trial court therefore erred in denying their motion to
reconsider. Alternatively, they claim that the trial court should have allowed them to
intervene as a matter of right. They contend the trial court misapplied the law because it did
not consider the factors under which statutory joinder or intervention is mandatory. Since this
particular case involves a motion to reconsider basеd solely on the trial court’s
misapplication of existing law, our standard of review here is
de novo
.
Bank of America, N.A.
v. Ebro Foods, Inc.
,
Code because they hаve an interest that the divorce judgment may adversely affect. Section 2-406(b) provides that “[i]f a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct such person to be made a party.” 735 ILCS 5/2-406 (West 2010). Nicholas and Michaеl argue that in bringing their claim, they are trying to protect their
interests under section 513 of the Marriage Act. Section 513 allows the trial court to “make
provision for the educational expenses of the child or children of the parties, whether of
minority or majority age, and an aрplication for education expenses may be made before or
after the child has attained majority.” 750 ILCS 5/513(a)(2) (West 2010). However, this
provision for educational expenses is entirely discretionary.
In re Marriage of Spircoff
, 2011
IL App (1st) 103189, ¶ 11. See also
In re Marriage of Treacy
,
from his position as a third-party beneficiary to his parents’ settlement agreement contract. Miller v. Miller , 163 Ill. App. 3d 602, 612 (1987). “[A] third party who is the direct beneficiary of a contract has standing to enforce the obligations fоr his benefit incurred under that contract.” Id . Such an action is by nature a breach of contract action. Spircoff , 2011 IL App (1st) 103189, ¶ 21. Therefore, where the settlement agreement clearly provides for educational expenses, the child as third-party beneficiary to the agreement has standing to bring a claim to enforce his rights under the contract. Id . It follows that in order for a child to enforce such rights as a third-party beneficiary, his parents must have first executed a settlement agreement providing for educational expenses. Here, the Vondras’ divorce is pending and the parties have yet to execute a settlement agrеement. Mika has filed a petition for the children’s college expenses but the trial court has not ruled on the petition. The trial court did not err in finding that Nicholas and Michael lacked standing to bring their claim and denying their request to join in their parents’ dissolution proceedings. Nicholas аnd Michael also argue that due process requires that they have “an opportunity
to be heard” before potentially incurring loans or having to pay for college with their own funds. They have cited no cases in support of their argument. Their bare argument without support violates Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008), which provides that arguments “shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” Therefore, Nicholas and Michael have forfeited this argument on review. Express Valet, Inc. v. City of Chicago , 373 Ill. App. 3d 838, 847 (2007). Alternatively, Nicholas and Michael contend that the trial court should have allowed
them to intervene as a matter of right pursuant to section 2-408 of the Code. The trial court must grant a petition to intervene as a matter of right if (1) the petition is timely filed; (2) the representation by the parties already in the suit is inadequate; and (3) the party seeking intervention has a sufficient interest in the suit. Schwechter v. Schwechter , 138 Ill. App. 3d 602, 604 (1985). A petition to intervene is timely if filed prior to judgment. Id . at 604-05. Since the trial court here has not entered a judgment of dissolution, timeliness is not an issue.
¶ 15 Nicholas and Michаel, however, question whether their parents will adequately represent
their interests. They contend that Mika cannot adequately represent their interests because if she is unable to have David pay for their college expenses, “she may well prefer to have the children pay than to use her own resources.” They also argue that “in theory” Mika and David could come to an agreement whereby she would accept more marital property “in exchange for not pursuing college contribution.” In order to show inadequacy of reprеsentation, one must not engage in speculation but, rather, must allege specific facts demonstrating a right to intervene. Warbucks Investments Ltd. Partnership v. Rosewell , 241 Ill. App. 3d 814, 817-18 (1993).
¶ 16 Contrary to Nicholas and Michael’s argument, the facts show that Mika will adequately
represent their interests on this issue. As discussed, Mika has filed a petition for educational
and living expenses. In the petition, she acknowledges that Nicholas and Michael have
substantial funds in their accounts with Self Reliance Ukrainian American Federal Credit
Union. However, she also alleges that David “has the financial resources to pay the entire
eduсational expenses, including the living expenses sought for MICHAEL and NICHOLAS
by this Petition.” The petition requests timely and direct payment to Vondra “of the net
tuition (after application of grants) fees, books, room and board and other expenses” for
attendance at their respectivе universities. The petition does not seek contribution from
Nicholas or Michael. In determining the adequacy of representation, the court compares the
interests of the parties in the suit to the interests of the parties seeking to intervene.
Schwechter
, 138 Ill. App. 3d at 605. Mika’s interests, as evidеnced by her petition, are
squarely in line with those of Nicholas and Michael on the issue of college expenses. See
In
re Marriage of Lerner
,
based on section 506 of the Marriage Act, which allows the trial court to appoint an attorney,
guardian
ad litem
, or child represеntative to advocate for the rights of minor children in a
*6
dissolution proceeding. 750 ILCS 5/506(a) (West 2010). They argue that section 506 gave
them the statutory right as minors to representation in a divorce proceeding and “that right
should not have been extinguished when they reached age 18.” We are not persuaded by this
argument. First, section 506 applies to minor children while Nicholas and Michael are over
the age of 18. They provide no citations to any cases supporting their argument that section
506 applies to them even though they have passed the age of majоrity. In any event, the right
to representation under section 506 is not mandatory. Rather, it is subject to the trial court’s
sound discretion “and the failure of the trial court to appoint a guardian
sua sponte
is not an
abuse of discretion.”
In re Marriage of Ricketts
,
Notes
[1] They also filed a motion to certify a question of law pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), on May 22, 2012, which the trial court also denied on September 20, 2012. Nicholas and Michael do not challenge the denial of their motion to certify on appeal.