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In Re Marriage of Evans



APPEAL from the Circuit Court of Peoria County; the Hon. JOHN D. SULLIVAN, Judge, presiding.


On June 15, 1978, in the circuit court of Peoria County, the marriage of the petitioner, Rae A. Evans, and the respondent, Duane E. Evans, was dissolved. Following several contested hearings the trial court entered a property settlement order on December 11, 1978. The petitioner-wife filed a post-trial motion which the court denied.

The petitioner has appealed only from the property settlement order of the trial court. On appeal the petitioner has put her issues as follows:

"(1) Whether the trial court erred and thereby abused its discretion in failing to award to wife:

A. Any interest in Husband's retirement income plan and social security benefits accrued during the marriage.

B. Any interest in Husband's non-vested shares in his employee's investment plan accrued during the marriage.

C. Any maintenance.

(2) Was the trial court's valuation of the marital home contrary to the manifest weight of the evidence."

Contrary to the narrow issue lastly phrased by the petitioner, the more general issue she argues is whether the trial court erred in failing to equitably apportion all marital assets of the parties.

The marriage of the parties to this appeal had endured for 28 years. There were no minor children. The petitioner was 50 years of age at the time of the dissolution and was employed as a tenured school teacher in the Peoria school district. The respondent was 49 years old at the time of the trial court proceedings. He has a college degree in mechanical engineering and has been employed with the Caterpillar Tractor Company since 1952. The parties own a residence in Peoria which had an approximate value of $45,000. Both parties had acquired substantial non-marital property which the trial court awarded to each respectively. The marital settlement order included as marital property the respondent's non-vested shares of stock in the Caterpillar Employees Investment Program which the trial court awarded to the respondent. Also listed in the marital settlement order were the pension benefits of both parties which the trial court awarded to each respectively. The respondent-husband's pension benefits, which are in issue, were vested and were wholly funded by his employer, Caterpillar. He was not entitled to receive his retirement benefits at the time of the dissolution of marriage because he was not then eligible to retire.

The wife's first argument is that the trial court erred in failing to award to her an interest in her husband's retirement benefits. Mrs. Evans computed her husband's total interest in his Caterpillar employees' pension by using standard life expectancy tables showing his life expectancy at age 49 to be 23.2 years. Computation by the husband's employer, Caterpillar, in July of 1978 showed the respondent at age 65 will receive $805 per month from his Caterpillar pension, and in addition $380 per month would be available to him from social security benefits based upon his past Caterpillar earnings. The monthly figures were based upon only the period of time during the respondent's employment with Caterpillar and during the life of their marriage. The petitioner asserts that the pension benefits from her husband's employer and his social security benefits are marital property and that she is entitled to one-half of the pension dollar from both sources that have accrued during their marriage.

• 1 At the outset we reject the argument that petitioner should be entitled to one-half of her husband's social security benefits. The record contains almost no argument or facts which aid in determining either party's projected social security retirement benefits, and under the Federal social security law, it is well settled that the petitioner, as a divorced wife, having been married to the respondent for 28 years, will be entitled to receive retirement benefits from her divorced husband's social security account. Her receipt of these benefits is not altered by the divorce and does not reduce the respondent's social security benefits in any way. The right to receive social security benefits is derived from statute and not from the common law. The Federal statute, consistent with its remedial purpose, provides for the various contingencies of life including the dissolution of marriage. Since the statute itself provides for an equitable distribution of its benefits to dependents, spouses, divorced spouses, and other family members in the event certain contingencies occur, we will not disturb the statutory scheme by suggesting any award of any part of the actual social security retirement benefits to which respondent may be entitled upon his reaching retirement age.

• 2 As indicated, the petitioner contends that the trial court erred in failing to award her an interest in the respondent's vested Caterpillar employee retirement benefits. The petitioner argues that a property settlement order, which was drafted by the respondent's attorney, listed the Caterpillar pension benefits and other benefits of the respondent as marital property, and therefore precludes his argument on appeal that the pension benefits are not property. We reject this argument. The pension rights of the parties are not labeled specifically as either marital property or non-marital property in the order finally entered. We also believe that such a classification by the trial court in its order, whether drafted by one of the parties to the litigation or by the trial judge himself, would not be binding upon us in our decision of the nature of the parties' pension rights upon the dissolution of their marriage.

In the case at bar, the trial court awarded each party his own respective pension benefits. Our Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101-802) does not mention pension rights and therefore does not specify them to be either marital or non-marital property. In order to determine certain issues presented in ...

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