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The Spircoff loophole to the Peterson bar to retroactive college educational expenses
The Illinois Supreme Court’s decision in In re Marriage of Petersen,1 conclusively determined that the mother could not recover from the father for the children’s college educational expenses predating the filing of her petition. While mother is barred, the Appellate Court in In re Marriage of Spircoff, 2011 IL App (1st) 1103189 (October 19, 2011), held that the son could recover from the parents for retroactive college expenses as Petersen was no bar.
In Spircoff, the son, as a third-party beneficiary, brought a post-decree breach of contract action to enforce a provision of his parents’ marital settlement agreement concerning payment of his college expenses after he completed his college education. The trial court, pursuant to Supreme Court Rule 308, certified the question:
Does the [Petersen] 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[?]”
The Spircoff court answered the certified question in the negative. The court found that the holding in Petersen does not bar an action by a third-party beneficiary to enforce retroactively 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.”
The Spircoff court began its analysis by noting that an adult child has standing to enforce the educational provisions of the divorce decree on the basis that he or she is a third-party beneficiary.2 The court then noted that Section 513 orders are always modifiable because a provision for payment of college education expenses is in the nature of child support, rather than a property settlement.3
The Spircoff court turned to the language in the marital settlement agreement, “[e]ach of the parties shall contribute . . . in accordance with Section 513.” The trial court had concluded this language was a reservation because it failed to describe a sum certain or a percentage obligation of either party. The appellate court found the language was “clearly and affirmatively stated and was not expressly reserved . . . even though the actual allocation of those expenses was not made at the time judgment of dissolution was entered.” The court stated that, “[A]ny dispute as to the parties’ [mom and dad’s] individual contribution could always be settled by the trial court, which retained jurisdiction to make specific allocations for that contribution.”
Additionally, and perhaps more importantly, after reviewing Petersen and Chee,4 the appellate court determined that Petersen was inapplicable to the instant case. Petersen was inapplicable because this case 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.”
After the recent college contribution decisions in Petersen, Chee and Spircoff, it is crystal clear that whether a child may recover college educational expenses is primarily dependent upon the express language in the parents’ marital settlement agreement. Whether a third party right is created depends on whether the court interprets the language of the agreement as a reservation or as language that creates an enforceable right. If it were the parties’ intent to require contribution, then the following language would be appropriate:
• The Spircoff language “each of the parties shall contribute . . . in accordance with Section 513”; or
• The Orr5 language “the husband . . . agrees to participate.”
• The Alibani6 language “the parties shall pay and be equally responsible for.”
On the other hand, if it were the parties’ intent to reserve the issue as to any college contribution which determination must be brought by a spouse prior to college, then the language need be express:
• The Petersen7 language “expressly reserves the issue . . . pursuant to Section 513.”
• The Pearson8 language “either party may file an appropriate petition . . . pursuant to Section 513.”
After Petersen and Spircoff, practitioners must be extremely careful in drafting college expense provisions. When the provisions are examined when the children reach college age, the court will presume that the drafter was aware of both cases and their meaning.
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