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In Re Marriage of Wisniewski

OPINION FILED JULY 12, 1982.

IN RE MARRIAGE OF THOMAS WISNIEWSKI, PETITIONER AND COUNTERRESPONDENT-APPELLANT, AND VIRGINIA WISNIEWSKI, RESPONDENT AND COUNTERPETITIONER-APPELLEE.


APPEAL from the Circuit Court of Champaign County; the Hon. GEORGE S. MILLER, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Division of pension benefits in a dissolved marriage.

Expert testimony should be heard to assist the court.

None here.

We send it back.

Petitioner appeals from the apportionment of property and award of maintenance following dissolution of marriage. The main point of contention involves classification of his pension as marital property and the valuation of the pension. He also appeals an order finding him in contempt for failure to pay the maintenance and make other arrangements for settlement in compliance with the court order. We reverse and remand the property and maintenance awards. The contempt finding is affirmed.

Petitioner, Thomas Wisniewski, filed a petition for dissolution of marriage on November 26, 1980, in the Champaign County circuit court. Following hearings, judgment of dissolution was filed on June 8, 1981. Marital property other than petitioner's pension was awarded such that the wife had marital property valued at $97,156, and petitioner had marital property valued at $15,950. These values are not disputed. Petitioner was also awarded his pension. Respondent was to receive $600 maintenance per month until her remarriage or death. There are no minor dependents.

PENSION

Petitioner's pension derived from his service to and contributions into the Teachers' Retirement System of the State of Illinois (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 16-101 et seq.) and the State Universities Retirement System (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 15-101 et seq.). He asserts the pension is not properly classified as marital property because the benefits are too speculative and also because the Act creating the State Universities Retirement System reveals a legislative intent that the benefits not go to a divorced spouse. Even if the benefits are properly classified as marital property, petitioner argues the distribution was inequitable.

The contention that the pension cannot be marital property because it is too speculative is based upon In re Marriage of Pickell (1979), 76 Ill. App.3d 855, 395 N.E.2d 673. The Pickell court found that respondent's interest in the retirement fund under the Federal Railroad Retirement Act was not a present asset of the respondent since any present value was clearly speculative. However, that respondent was 38 years old at the time of the proceedings and he was not entitled to receive any benefits until he reached age 60. He could not withdraw the funds he had contributed. Furthermore, the court could not determine the amount of pension respondent would receive even assuming he continued working for the required time. For these reasons the pension was not considered a present asset of the respondent. The court also noted alternatively that the United States Supreme Court had determined that benefits payable under the Railroad Retirement Act were not subject to division because Congress intended to exclude divorced spouses from reaping those benefits. See Hisquierdo v. Hisquierdo (1979), 439 U.S. 572, 59 L.Ed.2d 1, 99 S.Ct. 802.

• 1 In the present case the trial court found that the petitioner could currently cash in his interest for a refund of his contributions in the amount of $35,013. The court further found that petitioner was 54 years of age at the time of the proceedings and would be entitled to monthly benefits of $864 if he worked to age 55 and monthly benefits of $1,235 if he worked to age 60. The present cash refund value of the pension, the ability to determine future benefits, and the proximity of this petitioner's present age to the age he would be entitled to receive benefits all distinguish this case from Pickell. Furthermore, although placing a present cash value on the non-vested pension benefits may be difficult, "difficulties in valuation are not an insurmountable barrier to including a pension or profit-sharing interest, whether matured, vested or non-vested, as marital property." (In re Marriage of Hunt (1979), 78 Ill. App.3d 653, 663, 397 N.E.2d 511, 519.) The benefits from petitioner's pension are not too speculative to be classified as marital property.

Petitioner bases his legislative-intent argument on Hisquierdo and McCarty v. McCarty (1981), 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728. Hisquierdo pitted the Federal Railroad Retirement Act against the California community property law. McCarty pitted military non-disability retirement pay against the California community property law. In both cases, the United States Supreme Court made a rather detailed analysis of the relevant statutory sections and legislative history to determine that it was the intent of Congress that the benefits under those systems be available to the retiree and that the conflict sufficiently injured the objectives of the Federal programs to require non-recognition of the community property law.

It is not necessary to recap the details of the McCarty analysis because we are not dealing with a Federal law potentially in conflict with a State law requiring consequent non-recognition due to the supremacy clause. Rather, we are dealing with two acts of the Illinois State legislature passed at different times. The only provision cited by petitioner as evidence of legislative intent is section 15-120 of the Illinois Pension Code. (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 15-120.) That section states that "[a] spouse whose marriage was dissolved shall be disqualified as beneficiary unless the spouse was designated as beneficiary after the effective date of the dissolution of marriage." We find the mere existence of this provision unpersuasive as evidence of legislative intent to absolutely exclude the pension benefits as marital property. Rather, it is ...


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