Standing To Enforce

Although the support belongs to the child in a technical sense (i.e., the custodial parent does not have the right to waive the support), the issue of whether the child can enforce the right to college education expenses against the parent is unsettled. The court in In re Marriage of Garrison, 99 Ill.App.3d 717, 425 N.E.2d 518, 54 Ill.Dec. 653 (2d Dist. 1981), refused to allow a child to enforce a college expense provision against a parent, saying that the child lacked standing because he had not been a party to the lawsuit that engendered the decree. Garrison involved a decree issued by a court, not an agreement between parents. Similarly, the court in Miller v. Miller, 160 Ill.App.3d 354, 513 N.E.2d 605, 112 Ill.Dec. 191 (3d Dist. 1987), ruled that a child did not have standing to try to enforce the provisions of IMDMA §513 when the original judgment did not address the issue of college expenses.

However, in another case coincidentally of the same name, Miller v. Miller, 163 Ill.App.3d 602, 516 N.E.2d 837, 114 Ill.Dec. 682 (1st Dist. 1987), the child did have standing to sue the father who had, in collusion with the mother, modified the settlement agreement to eliminate the college expense provision and instead give the mother additional money. The court found that the child was a third-party beneficiary of the parents’ original contract and found detrimental reliance based on his having been enrolled in college over a period of six years and having incurred over $19,000 in expenses.

The third-party beneficiary issue was reargued to the appellate court in Orr v. Orr, 228 Ill.App.3d 234, 592 N.E.2d 553, 170 Ill.Dec. 117 (1st Dist. 1992). The trial court judge declined to give the child in Orr standing as a third-party beneficiary of the parents’ agreement to enforce it against an unwilling father, but the appellate court reversed and granted the adult child standing.

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