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In Re Marriage of Papeck



APPEAL from the Circuit Court of Cook County; the Hon. MARION E. BURKS, Judge, presiding.


In a supplemental judgment following the dissolution of marriage between Rose and Raymond Papeck, the circuit court ordered respondent Retirement Board Firemen's Annuity and Benefit Fund (fund) to restore to Mrs. Papeck (petitioner) $17,765.39 that she had previously paid into the fund on behalf of her husband. On appeal, respondent raises these issues: (1) the circuit court lacked jurisdiction to order the pension board to refund the money to petitioner; (2) the pension fund's monies cannot be attached or garnished; (3) the pension fund's monies cannot be refunded prior to termination of employment; (4) the circuit court erred in allowing provisions of the marriage dissolution act to prevail over the provisions of the Firemen's Pension Fund Act which exempt the fund from attachment or garnishment; and (5) the $17,765.39 was marital property. We reverse in part and remand.

The parties were married in July of 1977. Petitioner filed the dissolution petition on April 28, 1978, naming as a party defendant the Chicago Fire Department as stakeholder of the $17,765.39 which she had paid into the pension fund during the marriage. *fn1 The circuit court denied the pension fund's motion to dismiss. On December 29, 1978, the court entered a judgment dissolving the parties' marriage.

A hearing on the parties' property rights was held on July 13, 1979, at which time petitioner moved for entry of a supplemental judgment against the pension fund. She contended that the money she paid into the fund was her non-marital property, which should be directly refunded to her. The pension board filed its opposition to the motion, contending that there was a strict statutory prohibition against attachment or garnishment of pension funds. Petitioner's responsive petition alleged that the pension board's discretionary powers empowered it to refund her money.

Following oral arguments on the motion on August 28, 1979, the trial court ruled in favor of petitioner and entered an order directing the pension fund to pay her the money. Following the denial of its motion to vacate the August 25 supplemental judgment, the pension board brought this appeal.


The dispositive issue in this case is whether the circuit court, in distributing property pursuant to a marriage dissolution action, has the power to order the firemen's retirement fund to refund money paid into it by a non-employee spouse. We believe that it does not.

• 1 We first consider respondent's challenge to the trial court's jurisdiction. The Firemen's Annuity and Benefit Fund Act (Act) (Ill. Rev. Stat. 1979, ch. 108 1/2, pars. 6-101 through 6-223) governs the creation and administration of the fund. Exclusive original jurisdiction over all matters relating to the fund is vested in the Retirement Board (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 6-185) and judicial review of final administrative decisions is governed by the Administrative Review Act. (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 6-222; see ch. 110, pars. 264 through 279.) Respondent's first argument is that the court preempted the Board's express jurisdictional power, under section 6-185, to determine all claims involving the fund. We agree that the Board is primarily responsible for the fund's administration. We must distinguish, however, the circuit court's jurisdiction over dissolution actions. It is clearly established that Illinois circuit courts> have jurisdiction to hear all justiciable issues. (Ill. Const. 1970, art. VI, § 9; People v. Valdez (1980), 79 Ill.2d 74, 402 N.E.2d 187; In re Marriage of Peshek (1980), 89 Ill. App.3d 959, 412 N.E.2d 698.) In the instant dissolution action, the trial judge had the power to equitably divide the parties' property pursuant to section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503). Therefore, the trial court was within its discretion in determining that the money which petitioner paid into her spouse's retirement fund was property *fn2 that should be allocated to her upon the dissolution of the marriage. Nevertheless, we believe that the trial court was statutorily precluded from ordering the Board to pay petitioner $17,765.39 from the fund. We arrive at this conclusion after considering sections 6-213 and 6-158 of the Act, as well as pertinent case law.

Section 6-213 provides, in pertinent part:

"All pensions, annuities, refunds and disability benefits granted under this Article and every portion thereof, are exempt from attachment or garnishment process and shall not be seized, taken, subjected to, detained, or levied upon by virtue of any execution or any process or proceeding whatsoever issued out of or by any court in this State, for the payment and satisfaction in whole or in part of any debt, damage, claim, demand, or judgment against any pensioner, annuitant, applicant for a refund or other beneficiary hereunder.

The board, in its discretion, however, may pay to the wife of any aforesaid person, such proportion of her husband's annuity, pension, refund or disability benefit as any court of equity may order, or such an amount as the board may consider necessary for her support or for the support of herself and the children, in the event of his failure to provide such support."

The first paragraph of section 6-213 explicitly precludes creditors from reaching pensions, refunds, and other benefits under the Act. Our supreme court upheld the constitutionality of this provision against the challenge that it violated the equal protection clause of the constitution by denying to creditors the same rights they have against nonexempt private pensions. (Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill.2d 413, 367 N.E.2d 1325.) The court discussed several distinctions between public and private pension funds which justify the legislature's immunization of public pension funds from garnishment and attachment.

In the pending case, respondent urges us to apply the Friedman court's reasoning to bar petitioner's claim. If it is forced to comply with the trial court's order, respondent argues, the fund would become vulnerable to numerous similar claims. This would impair the fund's investment freedom because it would need to reserve money to satisfy judgments against it. Petitioner believes, however, that the anti-attachment provision is inapplicable to her because of her status as a divorced wife, as distinguished from a third-party creditor. To support her contention, she cites the language of section 6-213 which grants the Board discretion to make support payments to the wife of a recipient of pension benefits, "as any court of equity may order." She argues that since the Board is authorized to pay support to an employee's wife, it must also be authorized to repay money received from an ex-wife. She contends that the fund's freedom to invest money would be affected to the same extent whether the Board pays a wife or an ex-wife.

• 2 We find petitioner's argument unpersuasive. The language which empowers the Board to award support payments to a pensioner's wife and children is limited to "the event of his failure to provide such support." The logical interpretation of this exception to the anti-attachment language is to permit the Board, either in its discretion or pursuant to an equitable order from a court, to pay a portion of a pensioner's benefits directly to a spouse in such extraordinary circumstances that he fails to support her during an ongoing marriage. In such a situation, the legislature undoubtedly intended to forestall any attempts to insulate an employee's pension benefits from being used to satisfy his legal obligation to support his family. *fn3 We therefore decline petitioner's invitation to ...

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