In Re Marriage of Sawicki

806 N.E.2d 701, 346 Ill. App. 3d 1107, 282 Ill. Dec. 404, 2004 Ill. App. LEXIS 269
CourtAppellate Court of Illinois
DecidedMarch 18, 2004
Docket3-03-0328
StatusPublished
Cited by34 cases

This text of 806 N.E.2d 701 (In Re Marriage of Sawicki) 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 Sawicki, 806 N.E.2d 701, 346 Ill. App. 3d 1107, 282 Ill. Dec. 404, 2004 Ill. App. LEXIS 269 (Ill. Ct. App. 2004).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

The respondent, Todd Martin Sawicki, appeals from the judgment of dissolution of his marriage to the petitioner, Susan Gail Sawicki. On appeal, Todd contends that the trial court erred when it: (1) awarded Susan 50% of the marital portion of his disability pension; (2) calculated the marital share of his disability pension; (3) failed to allocate the cost of the joint and survivor annuity to Susan; (4) failed to reduce any portion of the disability pension awarded to Susan when his supplementary pension terminates; (5) directed a retroactive award of disability benefits to Susan; (6) set child support; and (7) failed to reopen the evidence. For the following reasons, we affirm in part, reverse in part and remand.

I. FACTS

Susan and Todd were married on July 26, 1985. They had one child during their marriage, a son, T.C., who was born on February 4, 1988. On June 8, 2000, Susan filed a petition for dissolution of marriage. The trial court awarded Susan $500 per month for temporary maintenance and child support.

On June 5, 2002, after protracted litigation, the trial court ruled on custody and visitation issues. It awarded the parties joint legal custody of their son and gave Susan primary physical custody. Todd was awarded extensive visitation rights with his son, including three weekends per month, one evening per week and the majority of the summer months. Todd is not appealing the custody award.

The trial court held additional hearings on the division of property and remaining issues. It was established that Susan was 47 years old and had a ninth-grade education. Before she married Todd, she worked at several minimum wage jobs, including factory work, bartending and as an apprentice painter. She also held a minimum wage job during the early years of her marriage to Todd. When she became pregnant with T.C., she quit her job to stay home. She remained a homemaker for the remainder of the marriage.

Todd was 52 years old at the time of trial. He worked as a construction laborer for 27 years before he was diagnosed with rheumatoid arthritis. His condition has left him physically disabled and unable to perform as a construction laborer. In 1999, he retired from his job with Ladd Construction and began receiving disability benefits. Since that time he has performed odd jobs such as stringing concrete and installing carpet. According to Todd, he can function, although he cannot be a “shovel and ditch guy.”

Todd’s pension is a defined benefit plan in which the amount of the benefit receivable per month is dependent upon the number of pension credits earned multiplied by the applicable contribution rates. Based upon the pension credits earned by Todd prior to and during his marriage, his disability pension would have paid him $3,702.35 per month. However, on February 1, 2000, Todd elected a 50% joint and survivor annuity for Susan. That annuity reduced the current gross amount payable to $2,795.27 per month. The annuity would provide Susan $1,397.64 per month if Todd predeceases her.

The evidence established that Todd is also entitled to a $300-per-month temporary supplemental benefit which will terminate when he reaches the age of 65 or earlier under certain circumstances. Prior to the entry of the qualified domestic relations order (QDRO), Todd was receiving $3,095.27 per month gross ($2,795.27 + $300). Todd also receives a veteran’s pension of $103 per month.

Todd began covered employment under the Central Laborers Pension Fund in 1972, 13 years before he married Susan. He was a participant in the plan for more than 27 years before he began to collect disability benefits. At the time he became disabled, Todd had earned 39.65 pension credits. He had earned 15.25 of those credits prior to his marriage to Susan.

Kevin Mason, a certified public accountant, testified on Susan’s behalf regarding the value of the disability pension. According to Mason, 87.6% of the disability pension should be considered marital property. Mason arrived at that figure by using the accrued benefit as of the date of the marriage and comparing it to the accrued benefit at the date of dissolution. Mason testified that 87.6% was a fair value for the marital portion of the pension because, “as earnings go up, the amount of contributions to the fund in a union-negotiated plan normally increase, so that there would have been more benefit accrued after the date of the marriage than prior.” Todd did not have an expert testify as to the value of the marital portion of the pension.

The parties stipulated that all payments on the marital home came from marital income except Todd’s initial down payment of $16,920.

In June 2002, prior to closing arguments, Todd’s counsel withdrew. Todd continued the case pro se. On September 20, 2002, the trial court issued a letter opinion and the judgment of dissolution was entered November 1, 2002. The trial court made the following pertinent rulings: (1) the marital portion of the Central Laborer’s Pension Fund was 87.5% 1 of the total value of the pension; (2) Susan was awarded one-half of the marital portion of the pension, which at that time was $1,298.06; (3) Susan’s portion of the disability pension was applied retroactively to July 2002; (4) each party was responsible for any tax liability incurred by that party’s receipt of any distribution and would hold the other party free, harmless and indemnified from any tax liability so incurred; (5) the marital residence was to be sold and the proceeds split equally between the parties after Todd received $16,920 for his nonmarital contribution; (6) Todd was ordered to pay $354.70 per month child support; (7) child support was retroactive to June 2002; (8) Todd was ordered to maintain medical insurance for T.C.; and (9) the issue of maintenance was reserved by the court. Todd’s motions for reconsideration were denied.

II. ANALYSIS

A. Division of Marital Property

On appeal, Todd first argues that the trial court abused its discretion in awarding Susan 50% of that marital portion of his disability pension. He claims that an equal distribution of the disability pension is unfair because his disability leaves him unable to pursue gainful employment and he is faced with ever-increasing costs for medical and living expenses.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that in a dissolution proceeding, the court is to divide the parties’ marital property in just proportions considering all relevant factors. 750 ILCS 5/503(d) (West 2000).

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Bluebook (online)
806 N.E.2d 701, 346 Ill. App. 3d 1107, 282 Ill. Dec. 404, 2004 Ill. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-sawicki-illappct-2004.