APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
516 N.E.2d 837, 163 Ill. App. 3d 602, 114 Ill. Dec. 682
Appeal from the Circuit Court of Cook County; the Hon. Richard H. Jorzak, Judge, presiding. 1987.IL.1726
JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
The trial court dismissed the petition of Ward Anthony Miller, appellant, to compel his father, Glenn E. Miller, defendant-appellee, to comply with his property settlement agreement and the decree of divorce to pay Ward's college education expenses. Ward appeals. We reverse.
On May 23, 1967, Martha Ward Miller filed a complaint against her husband, Glenn E. Miller, for separate maintenance, which was subsequently amended to a complaint for divorce. The complaint alleged, inter alia, that one child, Ward Anthony Miller, was born of the parties and the complaint prayed that Martha be awarded the custody, maintenance and education of Ward and that Glenn be required to pay Martha child support for Ward. Martha and Glenn entered into a property settlement agreement on January 16, 1968. The agreement stated in part:
"Glenn E. Miller shall pay for the expenses including the tuition incident to the attendance in college by the child of the parties, Ward Anthony [Miller], even though he may have attained the age of majority . . .."
This provision of the property settlement agreement was incorporated into a divorce decree which was entered in the case on January 17, 1968. The divorce decree further provided that Glenn pay alimony to Martha and child support for Ward.
It appears that throughout the years after the January 17, 1968, divorce decree, Martha and Glenn were in constant post-judgment litigation to compel Glenn's compliance with the alimony and child support provisions of the decree. On May 18, 1979, over 10 years after the entry of the divorce decree but only one week before Ward's 18th birthday, Glenn and Martha entered into a second agreement, which they labeled "amendment to the Property Settlement Agreement." At that time Ward was and since June 1978 had been attending Central YMCA College. This May 18, 1979, agreement significantly stated:
"The parties hereto entered into [a] . . . Property Settlement Agreement . . . which was incorporated in a Decree for Divorce . . ..
Wife and Husband have filed several Post-Decree Petitions relating to non-payment and abatement of alimony and child support, denial of visitation rights with the parties' child and payment of college education expenses for WARD MILLER.
1. The parties agree that it is in their best interests to resolve, once and for all, all differences between them concerning the [Property] Settlement Agreement and to put an end to the necessity for Post Decree Petitions.
2. Husband [Glenn E. Miller] agrees to pay wife [Martha Ward Miller] the sum of Eleven Thousand Five Hundred Fifty Dollars ($11,550.00) at the time of execution of this Amendment to Property Settlement Agreement as and for full and complete settlement of all claims for alimony and child support which wife now has or may hereafter have against husband in full and final settlement of the husband's obligation to support and maintain wife and pay child support. Wife hereby acknowledges that she has received all child support payments to and including May 25, 1979.
3. Both parties hereby waive all claims to alimony and support from the other party whether past, present or future except as set forth herein.
4. Wife agrees not to seek any modification of the provisions of the oral Property Settlement Agreement and this Amendment thereto with respect to alimony or maintenance.
5. Wife agrees that after WARD MILLER reaches the age of majority on May 25, 1979, she will not seek to enforce, on his behalf, any of his rights under the order of Court of January 17, 1968, and the oral Property Settlement Agreement between the parties." (Emphasis added.)
It is significant that this post-divorce decree amendment to Martha and Glenn's 1968 agreement was entered into on May 18, 1979, one week before their son Ward reached majority. It is also significant that this May 18, 1979, post-divorce decree agreement did not mention Glenn's obligation in the 1968 agreement and divorce decree to pay Ward's college expenses. Even more importantly, the May 18, 1979, post-divorce decree agreement provided that Martha would not seek to enforce on Ward's behalf Ward's right in the 1968 divorce decree to have Glenn pay Ward's college expenses.
It is noteworthy that the $11,550 paid Martha by Glenn under the 1979 post-divorce decree agreement was for " full and complete settlement of all claims for alimony and child support . . . and final settlement of the husband's obligation to support and maintain wife and pay child support." The $11,550 was not for the costs of Ward's college education. Moreover, it is of no small concern that this May 18, 1979, post-divorce decree agreement between Martha and Glenn was not presented to a Judge in the divorce case for judicial approval or for incorporation as an amendment to or modification of the 1968 divorce decree. Thus, the question presented in the case at bar, as the question was similarly presented in Hartman v. Hartman (1980), 89 Ill. App. 3d 969, 972, 42 N.E.2d 711, is whether the parents were "looking after their own interests, [because] the interest of this child may be seriously neglected."
In Hartman, the husband and wife entered into a property settlement agreement which waived alimony. The agreement was later incorporated in a divorce decree, which barred alimony but granted the wife $1,000-per-month child support. Two years later, the husband and wife agreed to a $500-per-month reduction of the child support payment. The agreement further provided $500 monthly alimony payments to the wife by the husband. The husband presented the agreement to the court, without notice to the wife, and the divorce decree was modified in accordance with the new agreement. Thereafter, the wife filed a petition to vacate the modified divorce decree and the petition was denied. The wife contended in the trial court and on appeal that she was coerced by the husband into signing the agreement for modification of the divorce decree. She urged that she desired to remove their minor child from Illinois and that her husband agreed not to object to the removal if she would agree to the aforesaid modification. The husband did not apprise the trial Judge of these facts when he presented the agreement to modify the divorce decree. This court stated that these facts, if proved, would establish a fraud by the husband upon the court, and in reversing the denial of the wife's petition to vacate the modified divorce decree, the court stated:
"Should there be any further proceedings between these parties we draw the trial court's attention to section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 506), which provides for the representation of a child by a court appointed attorney. It is clear that the parents here are looking after only their own interests and the interest of this child may be seriously neglected." (Emphasis added.) Hartman v. Hartman (1980), 89 Ill. App. 3d, 969, 972, 412 N.E.2d 711.
Section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 506), to which the court referred in Hartman, provides:
"The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation. . . . The court shall enter an order for costs, fees and disbursements in favor of the child's attorney . . .. The order shall be made against either or both parents, or against the child's separate estate."
Although this statute does not provide for the appointment of an attorney to represent the interest of a child with respect to payment of the child's college expenses, this statute does recognize that circumstances may exist in which a child's interest may need protection by an attorney "with respect to his support, custody and visitation" from the conflicting interest of the child's parents.
In Hartman, it was discernible from the face of the post-divorce decree agreement that the husband's obligations thereunder were basically unchanged from his obligations under the original divorce decree, i.e., a $1,000 monthly child support payment under the divorce decree and a $1,000 monthly payment -- $500 child support and $500 alimony -- under the post-divorce decree agreement. In Hartman, the post-divorce decree agreement revealed that the mother benefitted therefrom in the amount of $500 monthly, to the child's detriment in that same amount. Although it is undiscernible from the record before us whether the mother derived a benefit from the 1979 post-divorce decree agreement, it is clear that the mother's agreement therein was detrimental to her son, Ward. She agreed not to pursue against Ward's father Ward's right in the January 16, 1968, agreement and in the divorce decree to have his father pay his college expenses. Ward's mother attempted to terminate that part of the 1968 agreement and divorce decree which was for the benefit of her minor child. This, she was powerless to do, under the authority of Joslyn v. Joslyn (1944), 386 Ill. 387, 401, 54 N.E.2d 475, wherein the supreme court held:
"[Appellant] could not, had she desired so to do, which she did not, by consent or act, terminate that part of the contract which was entered into in part for the benefit of her minor children. The contract was a valid one under seal. The record does not establish that she repudiated it and she could not do so, so far as the rights of her minor children are concerned."
This language of Joslyn answers Glenn's contention before us that the 1979 post-divorce decree agreement provided that Martha would "not seek to enforce, on [Ward's] behalf, any of his rights under the order of court of January 17, 1968, and the oral Property Settlement Agreement between the parties." Martha could not so validly agree and such purported agreement therefore did not bar Ward from pursuing his claim against his father for payment of his college expenses.
The colloquy between the trial court and Glenn's attorney on his presentation of Glenn's motion to dismiss Ward's motion to compel Glenn's compliance with his obligation to pay Ward's college expenses cleary reveals that the trial court recognized this principle enunciated in ...