                                ILLINOIS OFFICIAL REPORTS
                                     Appellate Court




                     In re Marriage of Koenig, 2012 IL App (2d) 110503




Appellate Court          In re MARRIAGE OF JOYCE P. KOENIG, Petitioner-Appellant, and
Caption                  JAMES E. KOENIG, Respondent-Appellee.



District & No.           Second District
                         Docket No. 2-11-0503


Filed                    April 27, 2012


Held                     The trial court’s order barring petitioner from seeking college and law
(Note: This syllabus     school expenses for the parties’ only child that were incurred prior to the
constitutes no part of   filing of her petition was reversed and the cause was remanded, since the
the opinion of the       parties’ settlement agreement did not contain an explicit reservation of
court but has been       contribution for college expenses under section 513 of the Illinois
prepared by the          Marriage and Dissolution of Marriage Act but, rather, it assigned
Reporter of Decisions    financial responsibility for their child’s college and postgraduate
for the convenience of   expenses to the parties and an order entered pursuant to the petition
the reader.)             would not “adjust, change or alter” the obligation imposed under the
                         agreement, regardless of the fact that no dollar amount or other basis for
                         determining the parties’ contributions was set in the agreement.


Decision Under           Appeal from the Circuit Court of Du Page County, No. 99-MR-956; the
Review                   Hon. Patrick J. Leston, Judge, presiding.



Judgment                 Reversed and remanded.
Counsel on                  Barry A. Schatz and Brendan J. Hammer, both of Berger Schatz, of
Appeal                      Chicago, for appellant.

                            No brief filed for appellee.


Panel                       JUSTICE BURKE delivered the judgment of the court, with opinion.
                            Justices Bowman and Birkett concurred in the judgment and opinion.




                                               OPINION

¶1           Petitioner, Joyce P. Koenig, appeals the order of the circuit court of Du Page County
        granting summary judgment in favor of respondent, James E. Koenig, on Joyce’s postdecree
        petition for contribution for college and law school expenses, which accrued prior to the
        petition,1 for the parties’ only child, Tiffany. The trial court’s order barred Joyce from
        seeking college and postgraduate expenses that were incurred prior to the filing of the
        petition, predicated upon the First District Appellate Court’s opinion of Petersen v. Petersen,
        403 Ill. App. 3d 839 (2010), aff’d in part & rev’d in part by In re Marriage of Petersen, 2011
        IL 110984. In Petersen, the appellate court ruled that the allocation of college expenses was
        in the nature of a modification of child support under section 510 of the Illinois Marriage and
        Dissolution of Marriage Act (Act) (750 ILCS 5/510 (West 2010)) because the trial court had
        expressly reserved the issue of contribution pursuant to section 513 of the Act (750 ILCS
        5/513 (West 2010)), and, thus, costs predating the petition were barred. Petersen, 403 Ill.
        App. 3d at 846.
¶2           Joyce appeals, arguing, inter alia, that the holding in Petersen is limited to a situation
        where a judgment or marital settlement agreement (settlement agreement) contains an
        explicit reservation of contribution for college expenses under section 513. Here, because the
        parties’ settlement agreement did not contain such a reservation, but instead assigned to the
        parties financial responsibility for Tiffany’s college and postgraduate expenses, Joyce argues
        that the holding in Petersen is inapplicable. Although James has not 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). For the following
        reasons, we reverse and remand.



                1
                 Although the trial court dismissed the petition for contribution upon entry of the summary
        judgment order, Joyce has a claim remaining for law school expenses that were incurred by Tiffany
        after the filing of the petition. The order states that there is no just reason for delaying appeal
        pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).

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¶3                                       BACKGROUND
¶4       On December 8, 1993, the trial court entered a judgment for dissolution of marriage,
     dissolving the parties’ 23-year marriage. The judgment incorporated the parties’ settlement
     agreement, which included, among other things, support arrangements for Tiffany, who was
     born March 3, 1985.
¶5       Article VII of the settlement agreement established the parties’ financial responsibility
     for Tiffany’s higher educational expenses, requiring the parties to pay certain expenses for
     Tiffany’s college and postgraduate education. Article VII provides:
             “7.1 The Husband and Wife shall pay for university, college or post-graduate school
         education for Tiffany herein based on their respective financial abilities and resources at
         said time.
             7.2 For purposes of this Article, the expenses of a university, college or post-graduate
         school education shall include, not by way of limitation, any and all charges for tuition,
         room, board or lodging, and other necessary and usual expenses and transportation
         expenses between the school and the child’s home not to exceed Five (5) round-trips per
         school year.
             7.3 The parties’ obligation under this Article shall terminate upon the last to occur
         of the following:
                 (a) The child’s completion of a four year undergraduate or post-graduate degree.
                 (b) The child’s discontinuance of said educational pursuit. For purposes of this
             Article, a child shall be deemed to have discontinued said education pursuit when
             said child is no longer actively engaged in a course of study which leads to university,
             college or post-graduate diploma or degree.
             7.4 All decisions affecting Tiffany’s education, including the choice of university, or
         college shall be made jointly by the parties and shall consider the expressed preferences
         of Tiffany. Neither party shall unreasonably withhold his or her consent to Tiffany’s
         expressed preference.
             7.5 That the parties’ obligation to provide for the education of Tiffany set forth in this
         Article is conditioned upon the following:
                 (a) That the child has, at the time, the desire and aptitude for a university, college
             or post-graduate education;
                 (b) That said education is limited to five (5) consecutive years beginning not
             more than one year after graduation from high school for a college or university
             degree and a total of eleven (11) years for a post-graduate degree, except that the time
             shall be extended in the case of serious illness or other good cause shown;
                 (c) That to the extent [sic] the Husband and Wife are financially able to
             reasonably afford to pay for the educational expenses.
             7.6 That the Wife shall control the use of Tiffany’s monies in existence at the time
         of this Agreement, together with earnings or proceeds thereon, during her minority
         pursuant to the Illinois Uniform Transfer to Minors Act.”

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¶6          On April 16, 2010, Joyce filed a petition for contribution for higher educational expenses
       seeking reimbursement from James for approximately $257,000 in undergraduate and
       postgraduate educational expenses incurred by Tiffany and paid by Joyce on Tiffany’s behalf.
       Tiffany’s undergraduate tuition and room and board at the University of California, Santa
       Barbara, during the 2003 through 2007 academic years, accounted for approximately
       $77,000. Tiffany’s law school tuition and room and board at Pepperdine University Law
       School from fall 2007 through February 2010, as Tiffany was finishing her final year of law
       school, accounted for approximately $179,000. Joyce alleged that, prior to and throughout
       Tiffany’s attendance at both schools, she and Tiffany attempted to discuss with James
       Tiffany’s choice of schools, as well as the parties’ obligation to pay the expenses associated
       therewith, but James did not participate in the process.
¶7          On September 30, 2010, James filed a three-count motion to strike and dismiss Joyce’s
       petition. The motion was denied. James subsequently filed an amended response to the
       petition based on the holding of Petersen, in which James argued that Petersen prohibited
       the retroactive collection of college and postgraduate expenses under section 513 of the Act
       (750 ILCS 5/513 (West 2010)). Thereafter, on November 29, 2010, James filed a motion for
       summary judgment, raising the same arguments regarding Petersen. Following argument, the
       trial court granted James’ motion for summary judgment. The trial court applied Petersen,
       reasoning that, although the settlement agreement did not mention section 513, contribution
       by the parties was reserved for the trial court to modify, because the settlement agreement
       did not set an amount, percentage, or other method of determining what each party’s
       contribution would be. Joyce timely appeals.

¶8                                          ANALYSIS
¶9         Since the filing of Joyce’s appellate brief, the First District Appellate Court issued In re
       Marriage of Spircoff, 2011 IL App (1st) 103189, which involved retroactive college
       expenses as in Petersen but with a different factual scenario, more similar to that presented
       here. We granted Joyce’s motion for leave to cite Spircoff as supplemental authority in
       support of her appellate brief. Joyce contends that the trial court erred by concluding that
       determining the parties’ obligations to pay for college and postgraduate expenses was
       essentially a modification under section 513 because the settlement agreement did not set an
       amount, percentage, or other method of determining what each parties’ contribution would
       be. Joyce argues that, whether or not the settlement agreement provided a basis for
       determining each party’s contribution, the parties expressly agreed to pay those expenses.
¶ 10       Because the facts are not disputed and the trial court entered summary judgment on a
       question of law, this court may consider the determination de novo. See Mid-Century
       Insurance Co. v. Founders Insurance Co., 404 Ill. App. 3d 961, 966 (2010) (considering the
       existence of a contract).
¶ 11       In order to better understand the holdings set forth in Petersen and Spircoff, we initially
       note that section 513 of the Act grants the circuit court the discretion to extend a parent’s
       obligation to support his or her children beyond their minority when that support is for
       educational purposes. See 750 ILCS 5/513 (West 2010). Section 513(a)(2) of the Act


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       regulates support for nonminor children and educational expenses. It states, in part, that “an
       application for educational expenses may be made before or after the child has attained
       majority.” 750 ILCS 5/513(a)(2) (West 2010). Orders entered pursuant to section 513 are
       always modifiable. In re Marriage of Loffredi, 232 Ill. App. 3d 709, 712 (1992). These
       orders remain modifiable because a provision for payment of college expenses is considered
       in the nature of child support rather than a property settlement. In re Marriage of Dieter, 271
       Ill. App. 3d 181, 190 (1995).
¶ 12        In Petersen, a judgment for dissolution of marriage was entered for the parties, Janet and
       Kevin, on August 27, 1999. The judgment awarded Janet sole custody of the children. Kevin
       was ordered to pay child support. Petersen, 403 Ill. App. 3d at 841. With respect to the
       college expenses of the children, the judgment provided a blanket reservation under section
       513, with no mention of either party being obligated to pay college expenses:
                “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 section 513 of the
            [Act].” (Internal quotation marks omitted.) Id.
¶ 13        Eight years after the entry of the judgment, on May 17, 2007, Janet filed a petition
       requesting an allocation for college expenses for the parties’ children. The oldest child had
       graduated in 2006, and the youngest two children were then attending college. Id. The trial
       court ordered Kevin to pay 75% of all college expenses, including $227,261 for expenses that
       already were incurred. Kevin appealed the trial court’s ruling, contending, inter alia, that the
       trial court erred in ordering him to pay college expenses that accrued prior to the filing of
       Janet’s petition. The appellate court agreed with Kevin and reversed the trial court’s ruling.
       The 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,” Janet’s “petition
       for allocation of college expenses [was] in the nature of a modification of child support under
       section 510,” which precluded her from obtaining from Kevin contributions for expenses that
       predated the filing of her petition. Id. at 845-46.
¶ 14        The supreme court affirmed the appellate court’s judgment, finding first that section 510
       of the Act applies to education payments ordered pursuant to section 513 of the Act.
       Petersen, 2011 IL 110984, ¶¶ 12-13. The court then held that the “legislature intended the
       verb ‘modify’ as it is used in section 510 to connote any action taken to adjust, change or
       alter the obligations of one or more of the parties subsequent to entry of the final divorce
       decree.” Id. ¶ 16. Because the parties’ divorce decree reserved the issue of college expenses
       pursuant to section 513, the court observed that neither party had a concrete obligation to
       provide for education expenses under the decree. Id. ¶ 18. The court stated:
                “Prior to the filing of Janet’s petition, Kevin had no concrete obligation to provide
            for educational expenses under the decree. Janet, however, in 2007 sought to change the
            status quo between the parties and alter Kevin’s obligations under the decree.” Id.
       Thus, by filing a petition for contribution for college expenses, Janet was seeking to change
       the status quo between the parties and to alter Kevin’s obligations under the decree. The
       court concluded that the action brought Janet within the purview of section 510, which limits


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       modifications of maintenance and support “only as to installments accruing subsequent” to
       the filing of a modification petition. (Internal quotation marks omitted.) Id.
¶ 15        In Spircoff, a third-party beneficiary brought a breach of contract action to retroactively
       enforce a provision of his parents’ settlement agreement, which was incorporated into the
       parents’ dissolution of marriage judgment, that concerned the payment of his college
       expenses. Prior to the closing arguments in his case, the First District Appellate Court issued
       its Petersen decision. Spircoff, 2011 IL App (1st) 103189, ¶ 5. The settlement agreement
       provided 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.”
       (Internal quotation marks omitted.) Id. ¶ 6. Similar to the trial court here, the trial court in
       Spircoff concluded that the language of the settlement agreement was a reservation of the
       issue of contribution for college expenses and not an enforceable obligation, as argued by the
       third-party beneficiary, because it “failed to describe a sum certain or a percentage obligation
       of either party for the Court to enforce and reserves that determination for a future hearing
       pursuant to 513 of the Act.” (Internal quotation marks omitted.) Id.
¶ 16        The Spircoff court distinguished its case from Petersen. First, in Spircoff, “the obligation
       of the parties for educational expenses was clearly and affirmatively stated and was not
       expressly reserved,” even though the actual allocation of the expenses was not made when
       the judgment for dissolution was entered. Id. ¶ 17. In contrast, that the dissolution judgment
       in Petersen expressly reserved the issue for the trial court to decide. Id. ¶ 20. The Spircoff
       court found support for this distinction in Orr v. Orr, 228 Ill. App. 3d 234, 239 (1992), and
       In re Marriage of Albiani, 159 Ill. App. 3d 519, 526-27 (1987), wherein the settlement
       agreements contained provisions obliging the parties to pay for college or postgraduate
       expenses. Orr, 228 Ill. App. 3d at 239; Albiani, 159 Ill. App. 3d at 522. The fact that the
       settlement agreement in Spircoff did not set a dollar amount or some basis for determining
       contributions did not alter the court’s decision, as it noted that contributions could always
       be settled by the trial court, which retained jurisdiction to make specific allocations for those
       contributions. Spircoff, 2011 IL App (1st) 103189, ¶ 20. Accordingly, the court found that
       the holding in Petersen did not bar the action by the third-party beneficiary to retroactively
       enforce the provision of his parents’ settlement agreement related to the payment of
       educational expenses, “where such payment of such expenses was not expressly reserved for
       future consideration by the trial court in the initial proceedings.” Id. ¶ 23.
¶ 17        We agree with Joyce that Spircoff is factually similar to this case and supports her
       arguments on appeal. Here, unlike in Petersen, the parties’ settlement agreement, which was
       incorporated into the judgment for dissolution, contained neither a reservation clause on the
       issue of college and postgraduate expenses nor any reference to section 513; rather, it
       affirmatively assigned responsibility to both parties for Tiffany’s college and postgraduate
       expenses, and therefore any order entered pursuant to Joyce’s petition would not “adjust,
       change or alter” this obligation as set forth in the settlement agreement’s plain language. See
       id. ¶ 16. As noted in Spircoff, it is inconsequential that the settlement agreement did not set
       a dollar amount or some basis for determining contributions, since contributions could
       always be settled by the trial court. Thus, we find that Joyce is not barred from retroactively
       seeking to enforce the provision of the settlement agreement related to responsibility for

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       Tiffany’s college and postgraduate expenses. Accordingly, we reverse the trial court’s order
       granting summary judgment in James’s favor and remand the cause to the trial court.

¶ 18      Reversed and remanded.




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