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In Re Marriage of Tennessa S. Spircoff

October 19, 2011

IN RE MARRIAGE OF TENNESSA S. SPIRCOFF,
AND ROBERT M. SPIRCOFF, RESPONDENT ROBERT M. SPIRCOFF, II,
THIRD-PARTY-BENEFICIARY-PETITIONER;
TRUSTEE OF THE ROBERT M. SPIRCOFF, II, TRUST,
THIRD-PARTY RESPONDENT.



Appeal from the Circuit Court of Cook County Petitioner, No. 87 D 1716 Honorable Mark J. Lopez, Judge Presiding.

The opinion of the court was delivered by: Justice Salone

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).*fn1 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 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.

ΒΆ 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 ...


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