ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

In re 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).

 District & No. First District, Third Division

Docket No. 1-10-3189

Filed October 19, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

A certified question under Supreme Court Rule 308 as to whether the

holding in Peterson barring contributions for college expenses incurred

prior to the filing date of a petition for dissolution of a marriage also

barred retroactive relieffor such expenses incurred prior to the filing date

when a third-party beneficiary seeks to enforce a provision of his parents’

settlement agreement requiring contributions to his college expenses was

answered in the negative where payment of the expenses was not

expressly reserved for future consideration by the trial court in the initial

proceedings.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 87-D-1716; the Hon.

Mark J. Lopez, Judge, presiding.

Judgment Certified question answered.
Counsel on

Appeal

Kalcheim Haber, LLP, of Chicago, for third-party beneficiary-petitioner.

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). Third-party1

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

The Illinois Supreme Court has since issued an opinion on the Petersen appeal, affirming 1

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-partybeneficiary’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 maymaterially 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 beneficiarymakes 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 preliminarymatter, 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:

“TheCourt 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

[IllinoisMarriage and, Dissolution of Marriage Act].” (Internal quotationmarks 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 ILApp (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 properlybe construed as a timelymotion 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 IL110984, ¶ 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-partybeneficiaryand such expenses were not expressly

reserved by the trial court. Anydispute 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). We therefore find the holding in Petersen to be inapplicable to the present case as 2

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

beneficiaryof 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

The educational expense clause in Pearson provided as follows: 2

“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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