## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption In re MARRI AGE OF TENNESSA S. SPI RCOFF, Petitioner, and ROBERT M. SPI RCOFF, Respondent (ROB ERT M. SPI R C OF F I I
, Third-Party -B enef

iciary -Petitioner; Trustee of the Robert M. Spircoff I I
, Trust, Third-Par

ty Respondent).

District & N o. First District, Third Division Docke t No. 1-10-3189

Filed October 19, 2011

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A cer tified question under Supreme Court Rule 308 as to whether the holding in Peterson barr ing c ontributions for colleg e ex penses incur red prior to the filing date of a peti tion for dissoluti on of a marria g e also barr ed retroa ctive relief for such expenses incurre d prior to the filing date when a third-par

ty benef iciary seeks to enfor ce a provision of his pare nts’ settlement ag ree ment requiring contributions to his colleg e expenses was

answe red in the neg ative wher e pay ment o f the expenses was not expressly rese rved for future consideration by the trial court in the initial
proce eding s.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 87-D-1716; the Hon. Mark J. L opez, J udg e, pre siding.

J udg ment Certified que stion answere d.Counsel on

Appea l Kalche im Habe r, L L P, of Chicag o, for third-par ty benef iciary -petitioner.

Panel J USTI CE SAL ONE de livered the judgme nt of the cour t, with opinion. Presiding J ustice Steele and J ustice Murph y concur red in the judgme nt and opinion.

OP INION

¶ 1 This permissive interlocutory appea l pursuant to I llinois Supreme Court Rule 308 (eff

. Fe b. 1, 1994) by third-par ty -bene ficiar

y petitioner Robert M. Spircoff I I asks us to consider

a question cer

tified by the trial co u rt re gar d i n g the application of the holding in a rec ent decision issued by this court, Peterse n v. Peterse n , 403 I ll. App. 3d 839 (2010). Third-pa rty

1 benef iciary petitioner (third-pa

rty benef iciary ) filed a brea ch of contra ct action to enfor ce a provision contained in his pare nts’, Tenne ssa (petitioner) and Robert (re spondent) Spircoff, dissoluti on of marria g e judgme nt conce rning pay ment of colleg e education expenses. Also named as a party was the trustee of the Robert M. Spircoff I I trust (third-pa rty responde nt). The trial c ourt ce rtified the f ollowing que stion for our re view:
“I f the ruling in Peters en b ar s a party from contribution from a former spouse from contribution for colleg e expenses incurre d prior to the date of filing of a petition broug ht pursuant to 750 I L CS 5/513, does the same bar to retroa ctive relief for colleg e expenses incurre d prior to the filing date apply to a petition broug ht by a third[-] party benef iciary
to enfor ce a provision of his pare nts[ ’] marital settlement ag ree ment to contribute to his colleg e educ ation[? ]” ¶ 2 We g rante d third-par ty benef iciary ’s petition for leave to appea l and answe r the cer tified question in the neg ative. ¶ 3 Although neither petitioner, responde nt nor th i rd -p ar t y respondent has filed a brief on
appea l, we will consider the appea l pursuant to the pri nciples set forth in First Capitol Mortgage Corp. v. Talandis Cons truction Corp. , 63 I ll. 2d 128, 131-33 (1976).

¶ 4 BA CKGROUND ¶ 5 Third-pa

rty benef iciary commence d this brea ch of contra ct action on Fe bruar y 2, 2009,
to enfor ce a provision of his pare nts’ marital settlement ag ree ment that was incorporated into the parties’ dissoluti on of marria g e judgme nt and conce rned the p ay ment of his colleg e

T he I ll ino is Supr eme Cour t has sin ce is sue d an opi nio n on the Pet ers en app eal
, af fi rming 1 the par t of the app el la te cou rt ’s dec is ion whic h hel d tha t sup por t cou ld not be ord er ed for exp ens es whic h pr eda te d t he f

il ing of th e wi fe ’s pet it ion

. In re Ma rri age of Pet ers en , 201 1 I L 110 984.

-2-expenses. A full evidentiar y hear ing was conducte d and the trial court continued the matter for closing arguments. Howeve r, in the time period betwee n the close of proofs and closing
arguments, this court issued the opinion in Peterse n

. In Peterse n , this court held that a party seeking contribution to colleg e expenses pursuant to section 513 of the I llinois Marr iag e and Dissolution of Marriag e Act (Ac t) (750 I L CS 5/513 (West 2008)) tha t was reserve d in the parties’ judgme nt is barr ed from any relief for expenses incurre d prior to the date the petition was filed. Peterse n , 403 I ll. App. 3d at 845-46. ¶ 6 The trial court noted in its written order of October 15, 2010, that unlike in Peterse n , the moving party in the instant case soug ht relief as a third-par ty benef i ci ar y and filed his petition afte r he completed his colleg e education. Paragraph seven of t h e p ar ties’ marital settlement ag ree ment, which was enter ed on J anuar y 28, 1988, provides that “[e]ach of the parties shall contribute to the trade school or colleg e and profe ssi o n al s ch ool education
expenses of their child in acc ordanc e with Sect i o n 513 in the I llinois Marr iag e and Dissolution of Marr iag e Act, I llinois Revised Statutes Chapter 40.” The trial court conclude d that the languag e in pa

ragraph seven of the marital settlement ag ree ment was a rese rvation of the issue of colleg e contribution and not an enfor ceme nt as argued by the third-par ty benef iciary beca use it “fa iled to describe a sum ce rtain or a perc entag e oblig ation of either party for the Court to enfor ce and re serve s that determination for a future hear ing pursuant to 513 of the Act.” The trial court further noted that the issue was proper for an interlocutory
appea l and subsequently cer tifie d the question that is the subject of this appea l under Supreme Court Rule 308 (ef f. Fe b. 1, 1994). We g rante d third-par ty benef iciary ’s application for lea ve to appe al.

¶ 7 DI SCUS SI ON ¶ 8 Our scope of revie w is g overne d by Supreme Court Rule 308(a) (ef f. Fe b. 1, 1994). Rule 308 provides an avenue of permissive appea l for i n t er l o cutory order s wher e the trial court h as deeme d that they involve a question of l aw as to which there i s substanti al gro u n d fo r differ ence of opinion and wher e an immediate appea l from the order may materia lly advanc e the ultimate termination of the litigation. I ll. S. Ct. R. 308(a) (ef f. Fe b. 1, 1994); Brookbank

v. Olson
, 389 I ll. App. 3d 683, 685 (2009). We are g ener ally limit ed to the question cer tified by the trial court, which, beca use it is must be a question of law and not fac t, is revie wed de

novo

. Brookbank, 389 I ll. App. 3d at 685. ¶ 9 Third-pa

rty benef iciary makes the following contentions on appea l: (1) Peterse n applies to a par ental contribution not a child’s contra ctual enforce ment of a divorce judgme nt; (2) he can onl y seek a

reme dy in contrac t as he ha s no standing to pur sue re lief under the Act; and (3) the instant matter is clea rly distinguishable from Peterse n beca use the provision contained in the par t ies’ marital settlement ag ree ment was not permissive or discretionar y as it contained the word “ shall.” ¶ 10 As a preliminary matter, we note that it is clea r that an adult child of divorce d pare nts has standing to enfor ce the educational provision of the divorce decr ee on the basis that he or she is a thi rd-pa

rty benef iciary

. Orr v. Or r , 2 2 8 I l l

. App. 3d 234, 238 (1992); Miller v. Mill er , 163 I ll. App. 3d 602, 612 (1987). Moreove r, children who are benef iciarie s under a contra ct

-3-enter ed into by their pare nts h av e standing to bring suit ag ainst their fathe r to compel his

compliance with the contra ct terms. Orr , 228 I ll. App. 3d at 238. ¶ 11 S ec t i o n 513 g rants the circ uit court the discretion to extend a pare nt’s o b l i gat i o n t o support his or her children beyond their minority when that support is for educational
purposes. 750 I L CS 5/513 (W es t 2 0 0 8 ). Section 513(a) (2) of the Act g overns support for nonminor children a

nd educa tional expenses. I t provides, in pertinent pa rt, as follows:
“The court may also make provision for the educational expenses of the child or children of the p ar t i es, whether of minority or majority ag e, and an application for educational

ex p en s es may be made befor e or afte r the child has attained majority ***.” 750 I L C S 5/513(a)( 2) (West 2008).
I t i s well settled that order s enter ed pursuant to section 513 are alway s modifiable. In r e Marriage of Loffr edi
, 232 I ll. App. 3d 709, 712 (1992). Such order s rema i n modifiable beca use a provision for pay

ment of colleg e expenses is in the nature of child support, rathe r than a pr operty

settlement. In re M

arriage of Dieter , 271 I ll. App. 3d 181, 190 (1995). ¶ 12 Turning to the question on appea l, we beg in with a discussion of this court’s holding in Peterse n

. ¶ 13 In Peterse n , the parties wer e marrie d on September 1, 1983, and three children wer e born
to the marria g e. Peterse n , 403 I ll. App. 3d at 840-41. A judgme nt for dissoluti on of marria g e

was enter ed on August 27, 1999. Peterse n , 403 I ll. Ap p

. 3 d at 841. Wit h respe ct to the colleg e expenses of the children, the judgme nt provided:
“The Court expressly rese rves the issue of eac h party ’s obligation to contribute to the colleg e or other educa

tion expenses of the parties’ children pursuant to section 513 of the [I ll in o is M a

r r ia g e and, Dissolution of Marr iag e Act].” (Interna l quotatio n ma r k s o mi tt e d

. ) Peterse n , 403 I ll. App. 3d at 841.
On May 7, 2007, the former wife filed a p etition reque sting an allocation for colleg e expenses for the children; howeve r, the oldest child had g raduated in 2006, and the y oung est two children were then attending college

. Peterse n , 403 I ll. App. 3d at 841. As previously discussed, the Peterse n court conclude d that beca use “the judgme nt of dis s o l u t i o n of marria g e did not deter

mine whether the parents we re re q uired to pay the college expenses of the children (a form of child support), but rese rved the issue to be decide d in the future,” the wife’ s “petition for allocation of colleg e expenses was in the nature of a modification of child support under section 510 [(750 I L CS 5/510 (W est 2008))].” Peterse n , 403 I ll. App. 3d at 845-46. The court subsequently held t hat s ection 510 (750 I L CS 5/ 510 (West 2008)) require s that contribution to the educational expenses by the nonmoving party beg ins on the notice date of the petition and that the trial court err ed in ordering pay m en t o f co l l eg e expenses that predated the notice of filing. Peterse n , 403 I ll. App. 3d at 845-46. ¶ 14 Since Peterse n was filed, this court has had another occa sion to consider t h e i ssue of whether under section 513(a) (2) (750 I L CS 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 afte r the ch i l d h ad g raduated. See In re Marriage of Chee
, 2011 I L App (1st) 102797. In Chee
, petitioner filed for dissoluti on of marria g e on Dec ember 4, 20 0 8

. Chee
, 2011 I L App (1st) 102797, ¶ 2. Howeve r, responde nt answe red that their marria g e was never

-4-leg ally valid beca use he was marrie d to another two months befor e the parties’ marria g e and that the biga

mous marria g e to petitioner s h o u l d b e d eclared null and void. Chee
, 2011 I L App (1st) 102797, ¶ 2. Petitioner then filed a motion for summary judgme nt reque sting that the court either dissolve the marria g e or decla re it void, but hold responde nt responsible for one-third of all past, curr ent, and future educational expenses o f t h e ch i l dren pursuant to section 513(a) (2) (750 I L CS 5/513(a)( 2) (West 2008)). Chee
, 2011 I L App (1st) 102797, ¶ 2. The trial court subsequently voided the mar riag e on May

5, 2010, but retaine d jurisdiction over the petition, children and responde nt un d er s ection 513(a) (750 I L CS 5/513(a) (West 2008)). Chee
, 2011 I L App (1st) 102797, ¶ 3. A few wee ks later, on J une 1, 2010, petitioner filed a second peti tion, entitled “ ‘Petition for Section 513 College Support,’ ” and ag ain
reque sted one-third of the children’ s colleg e expenses. Chee
, 2011 I L App (1st) 102797, ¶ 4. The parties’ son had g raduated in May 2008, prior to the filing of the petition for dissoluti on

o f m ar ri age, and their daug hter g raduated in May 2009, while the petition was pending

. Chee
, 2011 I L 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 eac h child g raduated from colleg e, and the trial court g rante d the motion. Chee , 2011 I LApp (1st) 102797, ¶ 5. ¶ 15 The Chee court noted that the decision in Peterse n did not prec lude adjudication of the petition for ed u ca t i onal costs, beca use unlike Peterse n , wher e the petition was filed eig ht
y ear s afte r final judgme nt in the dissoluti on case , no final judgme nt had been enter ed in the pending case

. Chee
, 2011 I L App (1st) 102797, ¶ 17. Additionally
, the court noted that while the children’ s colleg e expenses slightly predated the petition for dissoluti on, they could have
proper ly been considere d during the pendenc y of t h e s u i t contempora neously with other ancillar y issues. Chee , 2011 I LApp (1st) 102797, ¶ 17. Alternatively
, the court found t hat petitioner’s section 513 petition could proper ly be construed as a timely motion to r e c o n s ide r, and that under either scena rio, the court cou l d proper ly consider the petition for both children’ s educa

tional expenses and that Peterse n did not control. Chee
, 2011 I L App (1st) 102797, ¶ 17. ¶ 16 Ou r s up re m e court g rante d leave to appea l in Peterse n to deter mine the appr opriat e means by which to apportion post dissoluti on decr ee colleg e ex penses where th e judgment of dissoluti on rese rved the issue for future consideration. Peterse n , 2011 I L 110984, ¶ 1. The
court aff irmed the appellate court’s decision that support could not be order ed for expenses which predated the filing of the wife’ s petition, althoug h it reve rsed the portion of the appellate court’s decision rela ted to the proportion of educational expenses the husband was to pay

. Peterse n , 2011 I L110984, ¶¶ 18, 25. ¶ 17 Turning to the instant case , we find it to be distinguishable from Peterse n

. First, we note that unlike the situation prese nted in Peterse n , here the obligation of the parties fo r educational expenses was clea rly and aff

irmatively stated and was not expressly rese rved. We rea ch this conclusion even though the actua l allocation of those expenses was not made at the time the judg ment of dissolution was entere d. ¶ 18 Support for this co n cl u s i o n i s fo u n d i n Orr

. In Orr
, the court found that the father’s obligation for educational expenses was aff irmatively stated in the marital s et t l em ent ag ree ment as follows: “Husba nd desires that t h e m i n o r chil dren shall attend a colleg e or

-5-profe ssional school and he ag ree s to participate in the financ ial responsibility for said

education.” (Interna l quotation marks omi t t ed

. ) Or r , 228 I ll. App. 3d at 239. Where such obligation to provide for a child’s colleg e expense s i s i n cl u ded in a proper ty settlement
ag ree ment that is later incorpora ted in a divorce decr ee, that obliga tion is even more definite and obligatory

. Orr
, 228 I ll. App. 3d at 239 (citing Larsen v. Larsen
, 126 I ll. App. 3d 1072 (1984))

. ¶ 19 Additional support for this conclusion can be found in In re Marriage of Albiani
, 159 I ll. App. 3d 519 (1987). In Albiani
, the m ar i tal settlement agree ment incorporated into the judgme nt for dissoluti on contained the following provision: “That the parties shall pay and be equally responsible for the tuition, room, an d b o ard and rea sonable transportation
expenses in connec tion with MARK ALBI ANI ’s pharma cy school expenses.” (Interna l quotation marks omitted.) Albiani
, 159 I ll. App. 3d at 522. On appea l, the appellant argued that the trial court had err ed in its judgme nt of dissoluti on by fa iling to adjudicate the ultimate responsibility for pay ment of the future aca demic costs of the parties’ minor child. Albiani
, 159 I ll. App. 3d at 525. The court aff irmed, noting that should the parties i n t h e future disagree as to how to divide the child’s aca demic co s t s , t h e circ uit court reta ined jurisdiction to settl e the dispute. Albiani , 159 I ll. App. 3d at 526-27. ¶ 20 We rea d para g raph seven of the parties’ marital settlement ag ree ment in the instant c ase in the same manner

. Both parties expressly and aff irmative ag ree d to be responsible for the colleg e educa

tional e xp e n s e s o f third-par ty benef iciary and such expenses wer e not expressly

rese rved by the trial court. Any dispute as to the parties’ individual contribution could alway s be settled by the trial court, which reta ined jurisdiction to make specific allocations for that contribution. See Loffr edi
, 232 I ll. App. 3d at 712 (orde rs enter ed pursuant to section 513 are alway s modifiable). In contra st, the marital settlement ag ree ment at issue in Peterse n expressly rese rved the issue of colleg e expenses for the trial court to de cide. See also In re Support of

Pearson
, 111 I ll. 2d 545, 551 (1986) (educ ational expenses clause in the proper ty distribution rese rved the quest i o n o f ed ucational expenses under section 513 until a later date). W e t h er efor e find the holding in Peterse n to be inapplicable to the prese nt case as 2 educational expenses wer e not expressly rese rved for future consideration by the trial court. ¶ 21 Moreove r, we conclude that Peterse n is ina pplicable to the prese nt c ase beca use this is

an action by a third-par

ty benef iciary seeki ng enfor ceme nt of the provisions of a marital settlement ag ree ment, which is, by nature , a bre ach of

contra ct ac tion, and not a n action to modify a section 513 order

. See Miller
, 163 I ll. App. 3d at 612 (a third party who is the direc t benef iciary of a contra ct has standing to enfor ce the obligations for his benef it incurre d under that contra ct). In Miller
, the trial court dismiss ed the child’s motion to c ompel his f ather to comply with the marital settlement ag ree ment and divorce d ec ree to pay his colleg e

T he e duc at ion al exp ens e c la use in Pear son pr ovidedas fo ll ows: 2 “W it h re gard to K EI T H PEA R S O N, now emancip at ed, at suc h ti m e as he has app li ed for and bee n a c c e p t e d to a col le ge, uni versi ty, or tr ade sch ool
, ei the r par ty m ay fi le an app rop ri at e pet it ion see king f ina nci al con tr ibu ti on fr om the oth er in con nec ti on wit h s a i d col le ge edu cat ion exp ens e pur sua nt to Sec ti on 513 [of the I ll ino is Ma rr ia ge and Dis sol uti on of Ma rr ia ge Act] .” ( I nte rna l q uot at ion m ar ks om it te d.) Pear son , 111 I ll . 2d at 547

.
-6-expenses. Miller
, 163 I ll. App. 3 d at 6 1 7

. This court reve rsed, finding that the child, as a

direc t third-par

ty benef iciary of his pare nts’ agree ment, had standing to seek by court order his fathe r’s compulsory compliance with his ag ree ment to pay the child’s colleg e expenses. Miller , 163 I ll. App. 3d at 617. ¶ 22 The same conclusion is war rante d in the instant case

. Her e, third-par ty benef iciary filed

a brea ch of contra ct action, seeki n g to compel responde nt’s compliance with the marital settlement ag ree ment by

which both of his par ents ag ree d to pay his colleg e expenses. ¶ 23 Fo r t he fore g oing rea sons, we there fore answe r the cer tified question in the nega t i v e, finding that the holding in Peterson d o es not bar an action by a third-par ty benef iciary to retroa ctively enfor ce a provision of his or her pare nts’ marital settlement ag ree ment related
to pay ment of educational expenses wher e such pay ment of such expenses was not expressly

rese rved f or future considera

tion by the trial cour

t in the initi al proc eeding s.

¶ 24 CONCLUSI ON

¶ 25 Certified que stion answere d.

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