                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                      In re Marriage of Spircoff, 2011 IL App (1st) 103189




Appellate Court            In re MARRIAGE OF TENNESSA S. SPIRCOFF, Petitioner, and
Caption                    ROBERT M. SPIRCOFF, Respondent (ROBERT M. SPIRCOFF II,
                           Third-Party-Beneficiary-Petitioner; Trustee of the Robert M. Spircoff II,
                           Trust, Third-Party Respondent).



District & No.             First District, Third Division
                           Docket No. 1-10-3189


Filed                      October 19, 2011


Held                       A certified question under Supreme Court Rule 308 as to whether the
(Note: This syllabus       holding in Peterson barring contributions for college expenses incurred
constitutes no part of     prior to the filing date of a petition for dissolution of a marriage also
the opinion of the court   barred retroactive relief for such expenses incurred prior to the filing date
but has been prepared      when a third-party beneficiary seeks to enforce a provision of his parents’
by the Reporter of         settlement agreement requiring contributions to his college expenses was
Decisions for the          answered in the negative where payment of the expenses was not
convenience of the         expressly reserved for future consideration by the trial court in the initial
reader.)
                           proceedings.



Decision Under             Appeal from the Circuit Court of Cook County, No. 87-D-1716; the Hon.
Review                     Mark J. Lopez, Judge, presiding.



Judgment                   Certified question answered.
Counsel on                  Kalcheim Haber, LLP, of Chicago, for third-party beneficiary-petitioner.
Appeal
Panel                       JUSTICE SALONE delivered the judgment of the court, with opinion.
                            Presiding Justice Steele and Justice Murphy concurred in the judgment
                            and opinion.




                                               OPINION

¶1          This permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff.
        Feb. 1, 1994) by third-party-beneficiary petitioner Robert M. Spircoff II asks us to consider
        a question certified by the trial court regarding the application of the holding in a recent
        decision issued by this court, Petersen v. Petersen, 403 Ill. App. 3d 839 (2010).1 Third-party-
        beneficiary petitioner (third-party beneficiary) filed a breach of contract action to enforce a
        provision contained in his parents’, Tennessa (petitioner) and Robert (respondent) Spircoff,
        dissolution of marriage judgment concerning payment of college education expenses. Also
        named as a party was the trustee of the Robert M. Spircoff II trust (third-party respondent).
        The trial court certified the following question for our review:
            “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 petition 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 beneficiary’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


                1
                  The Illinois Supreme Court has since issued an opinion on the Petersen appeal, affirming
        the part of the appellate court’s decision which held that support could not be ordered for expenses
        which predated the filing of the wife’s petition. In re Marriage of Petersen, 2011 IL 110984.

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       expenses. A full evidentiary hearing was conducted and the trial court continued the matter
       for closing arguments. However, in the time period between the close of proofs and closing
       arguments, this court issued the opinion in Petersen. In Petersen, this court held that a party
       seeking contribution to college expenses pursuant to section 513 of the Illinois Marriage and
       Dissolution of Marriage Act (Act) (750 ILCS 5/513 (West 2008)) that was reserved in the
       parties’ judgment is barred from any relief for expenses incurred prior to the date the petition
       was filed. Petersen, 403 Ill. App. 3d at 845-46.
¶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
       settlement 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 Chapter 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 obligation 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
       Supreme Court Rule 308 (eff. Feb. 1, 1994). We granted third-party beneficiary’s application
       for leave to appeal.

¶7                                          DISCUSSION
¶8          Our scope of review is governed by Supreme Court Rule 308(a) (eff. Feb. 1, 1994). Rule
       308 provides an avenue of permissive appeal for interlocutory orders where the trial court
       has deemed that they involve a question of law as to which there is substantial ground for
       difference of opinion and where an immediate appeal from the order may materially advance
       the ultimate termination of the litigation. Ill. S. Ct. R. 308(a) (eff. Feb. 1, 1994); Brookbank
       v. Olson, 389 Ill. App. 3d 683, 685 (2009). We are generally limited to the question certified
       by the trial court, which, because it is must be a question of law and not fact, is reviewed de
       novo. Brookbank, 389 Ill. App. 3d at 685.
¶9          Third-party beneficiary makes the following contentions on appeal: (1) Petersen applies
       to a parental contribution not a child’s contractual 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


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       entered into by their parents have standing to bring suit against their father to compel his
       compliance with the contract terms. Orr, 228 Ill. App. 3d at 238.
¶ 11        Section 513 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. 750 ILCS 5/513 (West 2008). Section 513(a)(2) of the Act governs support for
       nonminor children and educational expenses. It provides, in pertinent part, as follows:
            “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 modifiable. 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, the parties were married on September 1, 1983, and three children were born
       to the marriage. Petersen, 403 Ill. App. 3d at 840-41. 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 section 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 section 510 [(750 ILCS 5/510 (West 2008))].” Petersen, 403 Ill. App.
       3d at 845-46. The court subsequently held that section 510 (750 ILCS 5/510 (West 2008))
       requires that contribution to the educational expenses by the nonmoving party begins on the
       notice date of the petition and that the trial court erred in ordering payment of college
       expenses that predated the notice of filing. Petersen, 403 Ill. App. 3d at 845-46.
¶ 14        Since Petersen was filed, this court has had another occasion to consider the issue of
       whether under section 513(a)(2) (750 ILCS 5/513(a)(2) (West 2008)) a court had authority
       to adjudicate a petition to share a child’s undergraduate school expenses, even if the petition
       was filed after the child had graduated. See In re Marriage of Chee, 2011 IL App (1st)
       102797. In Chee, petitioner filed for dissolution of marriage on December 4, 2008. Chee,
       2011 IL App (1st) 102797, ¶ 2. However, respondent answered that their marriage was never

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       legally valid because he was married to another two months before the parties’ marriage and
       that the bigamous marriage to petitioner should be declared null and void. Chee, 2011 IL
       App (1st) 102797, ¶ 2. Petitioner then filed a motion for summary judgment requesting that
       the court either dissolve the marriage or declare it void, but hold respondent responsible for
       one-third of all past, current, and future educational expenses of the children pursuant to
       section 513(a)(2) (750 ILCS 5/513(a)(2) (West 2008)). Chee, 2011 IL App (1st) 102797, ¶ 2.
       The trial court subsequently voided the marriage on May 5, 2010, but retained jurisdiction
       over the petition, children and respondent under section 513(a) (750 ILCS 5/513(a) (West
       2008)). Chee, 2011 IL App (1st) 102797, ¶ 3. A few weeks later, on June 1, 2010, petitioner
       filed a second petition, entitled “ ‘Petition for Section 513 College Support,’ ” and again
       requested one-third of the children’s college expenses. Chee, 2011 IL App (1st) 102797, ¶ 4.
       The parties’ son had graduated in May 2008, prior to the filing of the petition for dissolution
       of marriage, and their daughter graduated in May 2009, while the petition was pending.
       Chee, 2011 IL App (1st) 102797, ¶ 4. Respondent filed a motion to dismiss, contending that
       the Act should be construed as depriving the trial court of authority to adjudicate educational
       expenses as soon as each child graduated from college, and the trial court granted the motion.
       Chee, 2011 IL App (1st) 102797, ¶ 5.
¶ 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. Chee, 2011 IL App (1st) 102797, ¶ 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. Chee, 2011 IL App (1st) 102797, ¶ 17. Alternatively, the court found that
       petitioner’s section 513 petition could properly 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. Chee, 2011 IL App (1st)
       102797, ¶ 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 to 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 allocation 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

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       professional school and he agrees to participate in the financial responsibility for said
       education.” (Internal quotation marks omitted.) Orr, 228 Ill. App. 3d at 239. Where such
       obligation to provide for a child’s college expenses is included in a property settlement
       agreement that is later incorporated in a divorce decree, that obligation is even more definite
       and obligatory. Orr, 228 Ill. App. 3d at 239 (citing Larsen v. Larsen, 126 Ill. App. 3d 1072
       (1984)).
¶ 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 expenses.” (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 academic 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-party 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 contrast, 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 inapplicable 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 agreement, 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 marital settlement agreement and divorce decree to pay his college

              2
               The educational expense clause in Pearson provided as follows:
              “With regard to KEITH PEARSON, now emancipated, at such time as he has applied for
              and been accepted to a college, university, or trade school, either party may file an
              appropriate petition seeking financial contribution from the other in connection with said
              college education expense pursuant to Section 513 [of the Illinois Marriage and Dissolution
              of Marriage Act].” (Internal quotation marks omitted.) Pearson, 111 Ill. 2d at 547.

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       expenses. Miller, 163 Ill. App. 3d at 617. This court reversed, finding that the child, as a
       direct third-party beneficiary of his parents’ agreement, had standing to seek by court order
       his father’s compulsory compliance with his agreement to pay the child’s college expenses.
       Miller, 163 Ill. App. 3d at 617.
¶ 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 answer 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 expressly
       reserved for future consideration by the trial court in the initial proceedings.

¶ 24                                     CONCLUSION

¶ 25      Certified question answered.




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