In Re Marriage of Bingham

537 N.E.2d 1158, 181 Ill. App. 3d 966, 130 Ill. Dec. 829, 1989 Ill. App. LEXIS 559
CourtAppellate Court of Illinois
DecidedApril 27, 1989
Docket2-88-0823
StatusPublished
Cited by9 cases

This text of 537 N.E.2d 1158 (In Re Marriage of Bingham) 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 Bingham, 537 N.E.2d 1158, 181 Ill. App. 3d 966, 130 Ill. Dec. 829, 1989 Ill. App. LEXIS 559 (Ill. Ct. App. 1989).

Opinion

JUSTICE LINDBERG

delivered the opinion of the court:

Petitioner, Vivianita Bingham, appeals the trial court’s dismissal of her petition for modification which sought 50% of respondent’s future military retirement benefits, as well as 50% of all such benefits received from February 1, 1983, to the present time. On appeal, petitioner contends that the trial court erroneously found that the judgment of dissolution, dated November 10, 1981, was not final and appealable as it reserved the issue of maintenance to a future date. Petitioner further argues that the trial court’s finding that section 510.1 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510.1) was not applicable was error. We agree with petitioner’s contentions, reverse the judgment of the trial court and remand the cause.

Respondent, Richard W. Bingham, joined the armed forces . in 1951. The parties were married on December 5, 1953. In March 1974, respondent retired from the armed forces after approximately 23 years of service.

On May 28, 1981, petitioner filed a petition for dissolution of marriage which was granted on November 6, 1981. On November 10, 1981, the trial court entered its judgment of dissolution and ordered the distribution of the parties’ property and the payment of the marital debts and attorney fees. The trial court further awarded custody of the couple’s remaining minor child, Debra, to petitioner and ordered respondent to make monthly child support payments in the amount of $200. Petitioner was not awarded monthly maintenance payments at the time of the dissolution, and the order specifically reserved the issue “until the minor child reaches 18, or until he [sic] finishes high school, whichever is later.” At the time of the dissolution, Debra was 16 years old.

Shortly before Debra graduated from high school, petitioner filed a petition for modification seeking maintenance. The trial court granted the petition on August 6, 1984, and ordered respondent to make monthly maintenance payments of $100 to petitioner for 18 months.

On March 5, 1986, petitioner filed a petition for modification seeking an award of 50% of respondent’s future military retirement benefits as well as 50% of all such benefits received by respondent from February 1, 1983, to the filing of the petition herein. Respondent resisted the petitioner’s request for modification on the ground that the dissolution order of November 10, 1981, was not “final” within the meaning of section 510.1 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510.1). This statute provides for the reopening of dissolution orders, judgments or agreements that became final between June 26, 1981, and February 1, 1983, for the purpose of reconsidering the distribution of military retirement benefits. (Ill. Rev. Stat. 1987, ch. 40, par. 510.1.) Respondent argued that the dissolution order did not become final until the trial court issued its modification order which awarded petitioner maintenance payments on August 6, 1984, a date which fell outside the window of opportunity provided by the statute.

In an order filed August 1, 1988, the trial court found that the dissolution judgment of November 1981 did not become final and ap-pealable until August 6, 1984, with the entry of the court’s maintenance order; thus, section 510.1 was not applicable, and petitioner’s petition to modify filed March 5,1986, was dismissed.

Some months prior to the dissolution of the parties’ marriage, the United States Supreme Court issued its decision in McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, in which it declared that Federal law precluded State courts from dividing military nondisability retirement pay pursuant to State property distribution laws in a dissolution of marriage proceeding. We note that on the date of dissolution in the instant case, neither party presented any testimony whatsoever regarding respondent’s receipt of military retirement benefits, nor did petitioner make any request for an award of a portion of such benefits.

On February 1, 1983, Congress enacted the Uniformed Services Former Spouses Protection Act (10 U.S.C.A. §1408(c)(l) (West 1983)), which provides:

“Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” (10 U.S.C.A. § 1408(c)(1) (West 1983).)

The legislative history of this Act reveals Congress’ purpose as follows:

“ ‘The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court [in McCarty] and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.’ ” In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 756-57, 475 N.E.2d 1333, 1335-36, quoting S. Rep. No. 502, 97th Cong., 2d Sess. 16, reprinted in 1982 U.S. Code Cong. & Admin. News 1596, 1611.

Thus, by the enactment of the Uniformed Services Former Spouses Protection Act, Congress abrogated the application of the McCarty decision to all dissolutions of marriage retroactive to the issuance of the McCarty decision.

The State of Illinois thereafter enacted section 510.1 of the Illinois Marriage and Dissolution of Marriage Act, which provides, in pertinent part:

“Sec. 510.1. Division of military retirement benefits.
(a) Agreements, judgments or orders that became final on or after June 26, 1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal law and the law of this State as it existed before June 26, 1981, and as it has existed since February 1, 1983. (Ill. Rev. Stat. 1987, ch. 40, par. 510.1(a).)

Section 510.1 became effective September 23, 1987, and provides an exception to the two-year limitation on the reopening of judgments set forth in section 2 — 1401(c) the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(c)).

The issue before us centers on the meaning of the word “final” as stated in section 510.1 of the Act.

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Bluebook (online)
537 N.E.2d 1158, 181 Ill. App. 3d 966, 130 Ill. Dec. 829, 1989 Ill. App. LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-bingham-illappct-1989.