In re Marriage of Sullivan

2020 IL App (1st) 191337-U

• Court: Appellate Court of Illinois
• Decided: June 8, 2020
• Docket: 1-19-1337
• Status: Unpublished

Opinion

2020 IL App (1st) 191337 No. 1-19-1337 Order filed June 8, 2020 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) In re MARRIAGE OF SULLIVAN, Appeal from the Circuit Court ) of Cook County. ) (JUANITA M. SULLIVAN, ) ) Petitioner-Appellant, No. 06 D 05086 ) ) and ) The Honorable ) JOHN E. SULLIVAN, Jeanne R. Cleveland-Bernstein, ) Judge, presiding. ) Respondent-Appellee).

JUSTICE HYMAN delivered the judgment of the court. Justices Pierce and Walker concurred in the judgment.

ORDER

¶1 Held: After a marriage is dissolved and the parties agree in the marital settlement agreement to share pension benefits equally, an ex-wife does not have a present right to receive a portion of an ex-husband’s “disability pension” benefits which he receives after becoming disabled but before he reaches regular retirement age.

¶2 After a 12 1/2-year marriage, petitioner Juanita Sullivan and respondent John Sullivan

divorced. The trial court allocated all real and personal property, bank accounts, investment and

retirement funds, and life insurance. Shortly afterwards, John was found to be totally disabled 1-19-1337

and eligible for his Social Security Disability Benefit, which allowed him to receive a “disability

pension” before reaching his normal retirement age. Juanita sought a portion of John’s disability

pension.

¶3 We affirm. The court properly held that in the marital settlement agreement intended the

parties share equally in John’s pension benefits, to which Juanita was entitled when John reached

retirement age. Had John never become disabled, he would not be receiving any payments under

a “disability pension.” The plans Juanita refers to differentiate between a disability pension and a

retirement pension, the latter being a “normal” pension, allowable at age 65.

¶4 Background

¶5 The judgment of dissolution of marriage incorporated the marital settlement agreement.

John had an interest in (i) the Electrical Contractors’ Association and Local Union 134, I.B.E.W.

Joint Pension Trust of Chicago Pension Plan No. 5 defined contribution pension plan; (ii) the

Electrical Contractors’ Association and Local Union 134, I.B.E.W. Joint Pension Trust of

Chicago Pension Plan No. 2 defined benefit pension plan; (iii) the IBEW Pension Benefit Fund

defined benefit pension plan, and (iv) the National Electrical Benefit Fund defined benefit

pension plan. The marital settlement agreement divided these plans equally between John and

Juanita. After enumerating the plans, the agreement stated:

"G. *** The aforementioned pension/retirement plans in this paragraph shall be divided

as follows:

1. Pension Plan No. 5: JUANITA shall receive an amount equal to Fifty (50%) of the

following sum from his Pension Plan No. 5.

2. Pension Plan No. 2, IBEW Pension Benefit Fund plan and National Electrical Benefit

Fund Plan: JUANITA shall receive Fifty (50%) percent of the marital portion *** of his

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(i) Pension Plan No. 2, (ii) IBEW Pension Benefit Fund plan, and (iii) National Electrical

Benefit Fund plan to JUANITA, as valued on the date of entry of Judgment, as well as

any income or losses relative to said amounts between the date of entry of Judgment

herein and the date of transfer to JUANITA.”

¶6 After the divorce had become final, John applied for Social Security Disability Income

benefits as a precondition of receiving long-term disability insurance. After being awarded the

SSDI, he was able to apply for “disability pension” benefits under the pension plans. John began

receiving “disability pension” benefits from I.B.E.W. Joint Pension Trust of Chicago Pension

Plan No. 2 Defined Benefit Pension Plan, and the National Electrical Benefit Fund Defined

Benefit Pension Plan. Months later, Juanita learned that John was receiving these benefits and

petitioned the trial court for a portion of them, arguing she was entitled to half of the payments

under the marital settlement agreement. John argued the parties contemplated Juanita would

receive a 50% interest in his retirement pension, not his disability income, and that Juanita was

not entitled to any share of the disability pension benefits because those benefits were income

replacement.

¶7 After a hearing, the trial court ruled that John’s disability pension from the Electrical

Insurance Trustees Health & Welfare Plan for Construction Workers Pension Plan 2 was income

replacement as opposed to a pension as contemplated by the parties in the marital settlement

agreement. Juanita appealed, and in an unpublished Rule 23 Order, this court held that the trial

court properly determined that Juanita was not entitled to any portion of the disability pension

benefits. Sullivan v. Sullivan, 1-17-0446, Rule 23 Order (June 4, 2018). Relying on In re

Marriage of Belk, 239 Ill. App. 3d 806, 808 (1992), and In re Marriage of Davis, 266 Ill. App.

3d 1065, 1067 (1997), this court found the parties “agreed to divide pension benefits, with the

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understanding that the pension benefits would be available for retirement, not for any potential

disability.” Sullivan, 1-17-0446, ¶ 16. The issue pertained to the “disability pension benefit”

payments John was receiving under the “Electrical Insurance Trustees Health & Welfare Plan for

Construction Workers” Pension Plan No. 2 until he began receiving pension payments after

either taking an early retirement or reaching the “normal” retirement age of 65.

¶8 Thereafter, John moved to modify the Qualified Domestic Relations Order for his

International Brotherhood of Electrical Workers Pension Benefit Fund. The trial judge approved

the amended QDRO provided that when John “goes into payment status,” Juanita would receive

one-half of the monthly benefit earned by John during the marriage. Regarding “Disability

Retirement Benefits,” the order specifically excluded payments made to John “on account of

[his] disability prior to [his] attainment of the earliest retirement age.” Juanita also was ordered

to pay $1,755 to John as reimbursement for payments she already received and $2,000 to his

lawyers for fees. The trial court denied Juanita’s motion for reconsideration.

¶9 Juanita appeals the order granting John’s motion to modify the Qualified Domestic

Relations Order and for turnover of funds, and the denial of Juanita’s Motion to Reconsider.

¶ 10 Standard of Review

¶ 11 We review the interpretation of a marital settlement de novo as a question of law. In re

Marriage of Farrell & Howe, 2017 IL App (1st) 170611, ¶ 21. The rules of contract construction

apply and the court’s primary objective in interpreting the terms of a marital settlement

agreement is to give effect to the intent of the parties. Id. ¶ 12.

¶ 12 Analysis

¶ 13 On March 12, 2020, this court entered an order taking the case on Juanita’s brief only.

See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976)

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(allowing consideration of appeal on appellant’s brief only where record is simple and errors can

be considered without additional briefing).

¶ 14 In our analysis, the intent of the parties is paramount. See Belk, 239 Ill. App. 3d at 808

(interpreting marital settlement agreement). Courts must “discover and give effect to the intent of

the parties at the time they entered into the contract.” Id.

¶ 15 Certainly, pension benefits are marital property. Section 503(b)(2) of the Illinois

Marriage and Dissolution of Marriage Act addresses the disposition of property and debts and

defines pension benefits as marital property and makes no mention of disability benefits. See 750

ILCS 5/503(b)(2) (West 2008)) (“[A]ll pension benefits (including pension benefits under the

Illinois Pension Code, defined benefit plans, defined contribution plans and accounts, individual

retirement accounts, and non-qualified plans) acquired by or participated in by either spouse after

the marriage and before a judgment of dissolution of marriage or legal separation or declaration

of invalidity of the marriage are presumed to be marital property.”).

¶ 16 Juanita contends “[t]he omission of disability benefits cannot be construed as a reflection

of the parties’ intent to exclude these benefits, as disability benefits are a component of [John]’s

retirement benefits.” Juanita argued to the trial court that the disability determination for Social

Security Disability Benefits meant that John was actually retired and, under their marital

settlement agreement, she was entitled to one-half of his disability pension. This argument

ignores the benefit plans’ requirement that John had to apply for Social Security to receive

disability payments under his benefit plans that labeled these payments “disability pension.”

¶ 17 At the hearing on the motion to modify the QDRO, John argued “if it was intended for

Mrs. Sullivan to receive part of his disability pension that replaced income, it would have said so

in the judgment because he was already receiving it at that time.” This argument is well-taken.

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For example, in Belk, neither “disability benefits” nor “disability retirement” or “disability

pension” was mentioned by the parties Belk, 239 Ill. App. 3d at 808. The absence of an express

or even implied reference to disability or disability benefits persuaded the Belk court that the

parties did not contemplate benefits at the time of dissolution. Id. at 809-10.

¶ 18 In another analogous case, Davis, 286 Ill. App. 3d 1065, the parties’ divorce judgment

referenced a division of the husband’s retirement benefit plans but made no mention of disability

benefits payable under the same pension plan. The Davis court followed the Belk decision,

noting “[t]he absence of any reference to disability or disability benefits suggest that the parties

did not contemplate such benefits at the time they entered the agreement. Id. at 1067. Davis

characterized the wife’s portion a “windfall” should the husband be injured and go on disability.

¶ 19 Further supporting our decision is Farrell & Howe, 2017 IL App (1st) 170611. The 61-

year-old ex-husband elected to receive disability benefits until age 63 when he would be eligible

for his fireman’s annuity. Id. ¶ 5. This court affirmed the trial court’s finding that as a matter of

law the marital settlement agreement unambiguously referred to the “pension” that the ex-

husband would begin to receive when he retired. Id. ¶ 1. The ex-wife was not entitled to a

portion of his disability benefits until then. Id. ¶ 20.

¶ 20 Although In re Marriage of Sawicki, 346 Ill. App. 3d 1107 (2004), and In re Marriage of

Schurtz, 382 Ill. App. 3d 1123 (2008), held an equal division of the ex-husband’s “disability

pension” was proper, both cases are factually distinguishable. In both Schurtz and Sawicki, the

ex-husband was of retirement age and entitled to receive a pension.

¶ 21 In Sawicki, the ex-husband became disabled during the marriage and, at the time of the

divorce, was receiving a disability pension. Sawicki, 346 Ill. App. 3d at 1115. After lengthy

dissolution proceedings, the trial court awarded each party half of the pension. Id. On appeal, the

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addressed multiple issues but not the terms of a settlement agreement. Instead, section 503(d)

factors pertaining to the division of marital property were determinative. Id. at 1114.

¶ 22 In Schurtz, the parties’ settlement agreement did not refer to disability benefits in

addressing the husband’s retirement benefits, but the ex-husband was entitled to retirement pay

and receiving disability income. Schurtz, 382 Ill. App. at 1126. When a party is entitled to

receive retirement pay and receiving disability income instead, a settlement agreement providing

the other spouse a portion of retirement benefits may be reasonably interpreted as requiring that

the other spouse be paid the percentage of what would be the normal retirement benefits, whether

paid as normal retirement benefits or disability benefits. Id.

¶ 23 We conclude that the portion of the pension awarded to Juanita in the dissolution was not

intended for current support but for when John reaches his retirement, as was stated by this court

in the earlier unpublished Rule 23 Order. Sullivan, 1-17-0446, Rule 23 Order (June 4, 2018).

¶ 24 Finally, we note that in her motion for reconsideration Juanita accused John of perjury

because he represented his “disability pension” was not a pension. The accusation is meritless.

John was pursuing his legal argument, not perjuring himself. The benefit plans are distinct:

“normal,” “early,” or “disability” pensions. Juanita conflates the three types of plans and declares

John “retired and began receiving his pension benefits.”

¶ 25 Affirmed.

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