In Re Marriage of Richardson

884 N.E.2d 1246, 381 Ill. App. 3d 47, 319 Ill. Dec. 1, 2008 Ill. App. LEXIS 172
Appellate Court of Illinois·Decided March 4, 2008·No. 1-07-1201·Published·Cited by 13 cases

Opinion

JUSTICE KARNEZIS

delivered the opinion of the court:

Petitioner Paul Richardson and respondent Patricia Kennedy Richardson were divorced in 1995 after 10 years of marriage. Pursuant to the terms of the parties’ settlement agreement, the judgment of dissolution of marriage awarded respondent one-half of petitioner’s pension “as it has accrued” from the date of the marriage to the date of the dissolution judgement. Petitioner, a police officer, accrued pension benefits in the Village of Hoffman Estates Police Pension Fund from 1973 until his retirement in 2002. In March 2007, the court apportioned the pension benefits, ordering petitioner to pay respondent $1,112.67 per month as her half share of the marital portion of petitioner’s monthly pension benefit, pay her any arrearage due on her share and “pass along” to respondent any 3% cost of living benefit increases when he received them. Petitioner appeals, arguing the court erred in apportioning his pension benefits because (1) its benefit calculation violates the language of the settlement agreement and (2) respondent should not receive the “full” 3% cost of living increases. We affirm, but remand for correction of the order.

Background

Petitioner started participating in the pension plan when he was hired by the Village of Hoffman Estates police department on October 12, 1973. He married respondent on June 14, 1984. The court entered the dissolution of marriage order on March 27, 1995. Pursuant to the terms of the parties’ oral settlement agreement, the judgment of dissolution of marriage provided:

“Wife is hereby awarded one-half (V2) of Husband’s pension as it has accrued form [sic] the date of the marriage to the date of the entry of this Judgment of Dissolution of Marriage. This court shall retain jurisdiction of this cause for the purpose of entering a Qualified Domestic Relations Order.”

In December 2002, petitioner retired and started collecting his benefits.

Pursuant to the Illinois Pension Code (40 ILCS 5/3 — 111 (West 2006)), for service in excess of 20 years, a pension is calculated at 50% of the employee’s final salary, plus an additional 2.5% of salary for each full year of service up to 30 years. Petitioner worked 29 full years. His yearly benefit was, therefore, calculated at 72.5% of his final salary, for a monthly benefit of $6,012.83 gross. This amount is uncontested.

In September 2003, petitioner started paying respondent what he considered her share of the benefits, admittedly guessing at the amount. He contacted the pension fund requesting a calculation of how much he should be paying respondent. The fund informed him he should be paying respondent $625.40 per month, and petitioner started remitting that amount in December 2003, plus additional sums to cover the arrearage due to his failure to pay this monthly sum as of the date he started collecting his pension in December 2002.

In July 2003, respondent moved for compliance with the judgment for dissolution and requested the court order petitioner to consent to having respondent’s share of the pension remitted directly to her by the pension fund through a qualified domestic relations order. When the court dismissed her motion, respondent filed a rule to show cause and other relief, asserting petitioner’s calculation of respondent’s share of the pension was incorrect and requesting a judgment for the correct monthly amount and payment of any arrearage. She subsequently filed a petition for modification or clarification of the judgment of dissolution, requesting the court determine the exact amount she should be receiving as her half share of the marital portion of the pension.

Respondent asserted her half share of the marital portion of petitioner’s pension should be either $1,118.44 or $1,112.67 per month, depending on which of the two allocation formulas suggested by her expert applied, plus her share of the 3% cost of living increases petitioner would receive annually starting in January 2005. Petitioner responded that respondent’s half share of the marital portion of his pension should be $625.40 per month, asserting respondent should not receive the benefit of the years he worked before and after the divorce.

At the hearing, it was uncontested that the parties’ intent was that respondent receive 50% of the marital portion of petitioner’s pension. However, the parties did not agree on how to calculate the marital portion and presented testimony by pension valuation experts to support their respective benefit calculations. Both parties’ experts agreed that petitioner’s pension plan was a “defined benefit plan,” whereunder the value of the benefit is determined at retirement based on years of service and final salary. It was not a “defined contribution plan,” where the value of the pension is based on contribution/deposits made to the plan and investment risk and can be determined before retirement. Under the terms of the pension plan, petitioner’s benefits had not vested or matured at the time of dissolution. Petitioner had neither the age nor the years of participation in the plan to be able to collect his pension on the date of dissolution. Further, if petitioner died before he started collecting his pension, neither he nor respondent would collect any benefits.

Respondent’s expert suggested two approaches to determining the marital portion of the pension: the subtraction approach and the reserved jurisdiction approach. Using the subtraction approach, she determined respondent’s half share of the marital portion of the pension to be $1,118.44 per month. She reached this conclusion by, as she explained, interpreting the allocation provision in the judgment for dissolution to require subtracting the benefit petitioner had accrued by the date of the marriage from the benefit petitioner had accrued by the date of the dissolution in order to determine the increase in petitioner’s benefit accrued from the date of the marriage to the date of the dissolution, of which respondent would be awarded a half share, $1,118.44 per month. 1

Using the reserved jurisdiction approach, also called the fractional approach, she calculated respondent’s half share of the marital portion would be $1,112.67 per month. To determine the marital portion of the pension, she divided the length of time petitioner accrued benefits during the marriage (129.38 months) by the total length of time petitioner accrued pension benefits before his retirement (349.60 months), and concluded it to be 37.01%. She then determined the value of the marital portion of petitioner’s pension benefit by taking the marital 37.01% of the $6,012.83 monthly benefit the parties agree petitioner received upon retirement in December 2002: 37.01% x $6,012.83 = $2,225.35 per month, of which respondent would be awarded a one-half share: $1,112.67 per month.

Petitioner’s expert, the actuary for the Village of Hoffman Estates and the pension fund, determined respondent’s half share of the marital portion of the pension to he $625.40 per month.

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In Re Marriage of Richardson, 884 N.E.2d 1246, 381 Ill. App. 3d 47, 319 Ill. Dec. 1, 2008 Ill. App. LEXIS 172 (Ill. Ct. App. 2008).

884 N.E.2d 1246 (In Re Marriage of Richardson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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