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In Re Marriage of Musser



APPEAL from the Circuit Court of Macon County; the Hon. JAMES J. HENDRIAN, Judge, presiding.


Rehearing denied December 11, 1980.

Margaret Musser appeals from the trial court's order awarding her ex-husband, James Musser, the entirety of a military pension and modifying its previous order that had given her 45 percent of the net proceeds of that pension. The Mussers were divorced in 1978. In an order entered May 1, 1978, the trial court directed James to pay $30 weekly as child support and $50 monthly for one year as maintenance. The trial court also held that James' pension was non-marital property and thus not subject to division between the spouses. This court reversed the portion of the trial court's decision concerning the pension (In re Marriage of Musser (1979), 70 Ill. App.3d 706, 388 N.E.2d 1289); 217/240's of the pension was held to be marital property, with that fraction representing the proportionate length of time in months that the two were married while James was serving in the military. We remanded the cause for division of the marital portion of the pension. A hearing pursuant to this court's mandate was held August 28, 1979. Margaret argued that she should receive half of 217/240's of each monthly pension check; James did not present any evidence or argument. By a docket order entered August 29, 1979, and a written order filed September 7, 1979, the trial court ordered James to pay Margaret 45 percent of the net amount of each monthly pension payment beginning in September 1979.

On the same day that the docket order was entered, James filed a section 68.3 petition (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) "to modify the Judgment of Dissolution of Marriage * * *, as heretofore modified by order of the Fourth District Appellate Court," alleging a material change in circumstances since the entry of the judgment of dissolution in 1978 and seeking to retain all the monthly pension benefits; his petition referred to medical expenses from a heart attack and his sporadic employment. Margaret did not receive a payment from James in September. She sought a rule to show cause for contempt on October 9, 1979.

Both James and Margaret testified at the hearing on his petition to modify. In its memorandum opinion the trial court recited the personal and financial information given at the hearing and ruled that modification of the August 29, 1979, order was permitted under section 68.3 of the Civil Practice Act. The trial judge then found that only by awarding James all the proceeds of the pension would the two parties be on a relatively equal financial footing. In its written order the trial court found that James' physical condition justified opening the August 29 order; that the petition to modify that order had been timely filed; that the evidence justified awarding James the entire amount of the pension.

Section 510(a) of the Marriage and Dissolution of Marriage Act provides:

"The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State." (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).)

Provisions regarding maintenance and support are more easily modifiable but still require "a showing of a substantial change in circumstances." (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).) Thus, changed circumstances alone cannot justify modifying a division of property. James' heart problems occurred after the judgment of dissolution was entered, May 1, 1978, when the pension was declared non-marital property.

In dividing the pension, the trial court was limited to the circumstances that obtained at the time of divorce, when the rest of the property was divided, and could not consider events that occurred after that time. Thus, the trial court correctly awarded Margaret 45 percent of the net benefits of the pension — half the marital portion — corresponding to the evenly proportioned division of the couple's other property when the divorce was granted. This situation is unlike In re Marriage of Aschwanden (1979), 76 Ill. App.3d 680, 395 N.E.2d 767, aff'd as modified (1980), 81 Ill.2d 31, where, in remanding for a more equitable division of property, including shares of corporate stock that had increased in value since the initial division of property, the court instructed the trial court to take judicial notice of the value of the stock on the day of the new trial. There the court overturned the entire division of property, but the intervening event — the stock's rise in price — pertained to the value of the asset rather than to the parties' personal circumstances.

Although a trial court retains jurisdiction over a case for 30 days or until a notice of appeal is filed, whichever comes first (Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App.3d 101, 390 N.E.2d 579), the trial court should not have opened its judgment of August 29. The evidence presented by James pertained only to the events following the May 1, 1978, dissolution. As we have just concluded, this evidence could not have been presented at the hearing on our remand, and it fell far short of the usual justifications for opening a judgment under section 68.3. James presented no evidence of fraud, and nothing indicated that the August 29 order was invalid or technically defective. The evidence presented here did not justify the result ultimately reached. Thus the order was in error.

We reverse and remand for the court to reinstate the order of August 29, 1979, granting Margaret 45 percent of the net monthly benefits from the military pension.

Reversed and remanded with directions.

MILLS, P.J., concurs.


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