In Re Marriage of Alshouse

627 N.E.2d 731, 255 Ill. App. 3d 960, 194 Ill. Dec. 394, 1994 Ill. App. LEXIS 57
CourtAppellate Court of Illinois
DecidedJanuary 20, 1994
Docket3-93-0245
StatusPublished
Cited by7 cases

This text of 627 N.E.2d 731 (In Re Marriage of Alshouse) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Alshouse, 627 N.E.2d 731, 255 Ill. App. 3d 960, 194 Ill. Dec. 394, 1994 Ill. App. LEXIS 57 (Ill. Ct. App. 1994).

Opinion

JUSTICE LYTTON

delivered the opinion of the court:

Merrill A. Alshouse appeals from an order of the circuit court of Bureau County awarding his former wife, Martha J. Alshouse, a portion of his pension benefits in the sum of $83,000. He asserts that the following rulings were erroneous: (1) the valuation of Martha’s interest at $83,000; (2) the denial of his motion to vacate the trial court’s order; and (3) the award of attorney fees to Martha in the sum of $2,600. We affirm.

PENSION BENEFITS

Martha J. Alshouse filed a petition for dissolution of marriage against her husband, Merrill A. Alshouse, in the circuit court of Bureau County in April of 1982, and a judgment of dissolution was entered on July 1, 1982. The parties’ phase II settlement agreement was incorporated into the judgment of dissolution on May 20, 1983, including a provision that the determination of the value of Martha’s interest in Merrill’s pension plan would be reserved until his retirement. That particular provision was as follows:

“The parties further agreed the value of [Martha’s] interest in [Merrill’s] pension plan at Northern Illinois Gas Company, if any, shall be reserved until [his] retirement based on his marital and non-marital contribution to said plan. Items to be considered in the formula to arrive at the value of the pension plan are the dates of employment of [Merrill] with his employer on February 9, 1958, the date of marriage of November 25, 1961, the date of dissolution of July 1, 1982, the total years of non-marital contributions and the date of retirement all to be considered in arriving at some type formula to be used in calculating the marital value of the pension, if any, at the time of retirement.”

Merrill retired on July 1, 1990, at age 60 and elected to receive his retirement benefits in a lump sum payment of $220,875. Martha filed a motion on August 7, 1990, requesting the court to determine the value of her interest in the pension plan.

At the hearing on Martha’s motion, Merrill’s expert witness, John C. Whitney, a consulting actuary employed by the firm that prepared the pension plan in question, testified that at the time of the divorce in 1982, Merrill was entitled to a monthly benefit of $732 at age 65 which would require $57,075 to be fully funded by the company. He stated that the present value of the plan on July 1, 1982, was $33,000, while on July 1, 1990, the value of the $732-per-month benefit was $57,000.

Whitney explained that the lump sum benefit of $220,000 was the present value of the $1,794 monthly benefit to which Merrill was entitled beginning July 1, 1990, at age 60. The increase in monthly benefit from 1982 to 1990 was attributable to additional years of service, increases in pay, and changes in the pension plan adopted by the employer in 1984.

Martha’s expert witness, F.J. Martinaitis, a certified public accountant, also testified that, as of July 1, 1982, Merrill would be entitled to a monthly pension benefit of $732 when he reached age 65. Using a life expectancy of 16.9 years, the witness concluded that in 1990 the present value of that benefit was $57,000.

Martinaitis also testified to an alternative method of computation using the formula approved in In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511, where the court held that the marital portion of the pension is computed by multiplying the present value of the pension benefit by a fraction whose numerator is the number of months of marriage during which benefits were being accumulated and whose denominator is the total number of months of employment during which benefits were accumulated. This computation produces a marital portion of $145,483 to which the witness added interest of $19,009 to arrive at a total value of $164,492.

After the hearing, the court used the formula set forth in Hunt to find that Martha’s 50% share, including interest from the date of Merrill’s retirement to October 31, 1992, was $82,246. Since Merrill had continued to earn interest on the pension benefit during the five months since the interest was first computed, the trial court “rounded off” Martha’s share to $83,000.

Merrill contends that the court erred in determining the value of the marital portion of the pension plan on the basis of the formula used in the Hunt case rather than adopting the valuation testified to by his expert witness. Merrill argues that the court improperly awarded Martha the benefit of the additional years worked, the increases in earnings occurring after the dissolution, and the changes in the pension plan, all of which contributed to the increased value of the pension. In effect, Merrill is saying that Martha’s interest in his pension benefits should have been “frozen” as of the date of dissolution and that she should not be allowed to realize any of the growth in value of the marital share occurring during the eight years of Merrill’s employment after the divorce and before his retirement.

At the time of the dissolution of their marriage, the parties expressly agreed that the formula used to determine the value of the pension plan was to include the date of Merrill’s employment, the date of his retirement, and the total years of nonmarital contributions as well as the date of marriage and the date of dissolution. Merrill’s computation does not take into account the date of retirement or the total years of nonmarital contributions.

The Hunt formula used by the trial court has been widely accepted by Illinois courts. (See People v. Davis (1991), 215 Ill. App. 3d 763, 773, 576 N.E.2d 44, 51; Helber v. Helber (1989), 180 Ill. App. 3d 507, 509, 536 N.E.2d 110, Ill.) The trial court has broad discretion in the valuation and distribution of marital assets, and absent an abuse of that discretion whereby no reasonable person could adopt the court’s position, the reviewing court will not substitute its judgment for that of the trial court. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 286, 518 N.E.2d 1316, 1322.) Here the valuation determined by the trial court was within the range testified to by Martha’s expert witness and, therefore, was not an abuse of discretion. See In re Marriage of Hunter (1992), 223 Ill. App. 3d 947, 956, 585 N.E.2d 1264, 1271.

MOTION TO VACATE

Merrill also asserts that the trial court’s denial of his motion to vacate the judgment entered on March 2, 1993, was error. A detailed review of the proceedings leading up to the motion to vacate must be set forth to better understand the issue before the trial court.

A hearing on the motion for determination of Martha’s interest in the pension plan was first set for August 10, 1990. Thereafter, the common law record discloses some eight continuances, six of which are identified as being at the request of Merrill, prior to a hearing on the merits held on December 16,1992.

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Bluebook (online)
627 N.E.2d 731, 255 Ill. App. 3d 960, 194 Ill. Dec. 394, 1994 Ill. App. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-alshouse-illappct-1994.