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In Re Marriage of Fairchild



Appeal from the Circuit Court of Bureau County; the Hon. C. Howard Wampler, Judge, presiding.


On November 24, 1981, the circuit court of Bureau County entered a judgment order dissolving the 18-year marriage of Larry A. Fairchild and Linda L. Fairchild. Mrs. Fairchild appeals from that order alleging that the lower court erred in dividing the marital property of the parties, in setting the amount of maintenance and child support, and in awarding attorney fees. In addition, by motion of the appellant, agreed to in oral argument by the appellee, we have been asked to correct certain mathematical errors appearing on the face of the judgment order. We consider the relief requested in the motion along with the issues raised by the notice of appeal.

Three children were born of the Fairchild marriage, Kelly, born September 30, 1963, and now of age, Allen, born December 22, 1965, and Jody, born July 10, 1967. The parties acquired certain non-marital property during their marriage, consisting primarily of the marital residence in Princeton, Illinois, two automobiles, and pension/savings benefits arising by reason of the appellee's employment. That employment is with Jones & Laughlin Steel Co., where appellee earns $39,852 annually. The appellant, also employed, earns $350 biweekly, or $9,100 annually.

In its judgment order, the circuit court added the cash value of the parties' marital assets, including the equity in the marital home, the vested value of the appellee's pension/savings employment benefits and the two automobiles. It then awarded to the appellee the pension/savings benefits and an automobile, and to the appellant the marital residence and an automobile. To equalize this division, the lower court entered a money judgment bearing interest at the statutory rate in favor of the appellee against the appellant in the sum of $25,930, providing, however, that the appellee was enjoined from enforcing the judgment until July 10, 1985. It is apparent that the circuit court intended to provide the appellant and the minor children placed by its order in her custody the use of the marital residence until the younger child reached the age of majority. Then, presumably, the residence would be sold to satisfy the judgment and complete the division of property. Further, the judgment order required the appellee to pay $530 monthly to the appellant as unallocated maintenance and child support as well as $750 to the appellant for attorney fees, the latter amount being less than half of the fees actually incurred.

• 1 In her brief, the appellant urges that the circuit court's division of the marital property was flawed for three reasons. First, it is suggested that the lower court failed to include as marital property certain health and life insurance benefits enjoyed by the appellant by reason of her husband's employment. Mr. Donald Rickard, an economist, testified that the value of these benefits as of the date of dissolution was $43,614. We find no authority, nor has appellant cited any authority, for treating employee benefits of this type as "property" within the meaning of that term as used in section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503). There is authority for labeling as "property" the contractual right to future payments by reason of past employment. (In re Marriage of Evans (1981), 85 Ill.2d 523, 426 N.E.2d 854; In re Marriage of Hunt (1979), 78 Ill. App.3d 653, 397 N.E.2d 511.) As we understand the health and life insurance benefits here in issue, they are a right to current payments by reason of current employment. Therefore, we conclude, as did the trial court, that these benefits are not "property" within the contemplation of section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503).

The appellant also contends that the division of marital property ordered below was flawed by reason of the trial court's use of the "vested value" of the pension/savings benefits rather than the "accrued value." The difference in these values was recently explained in a respected journal.

"Most retirement plans will express the participant's interest in two different ways, accrued and vested. The employee's accrued interest is the amount that he has earned and will receive if he works for a sufficient period of time to satisfy the vesting requirements. His vested benefit is that portion of his accrued benefit which is nonforfeitable, and is usually determined according to the number of his years of employment. When an employee terminates employment, he is entitled to receive only his vested benefit." Dickinson, Role of Retirement Plans, Real Property, 10 Probate & Trust J. 644.

In the instant case, Mr. Rickard established the accrued value of the pension/savings benefits as $24,642, while the vested value was only $6,069.

Illinois courts> have held that in valuing employment benefits of this nature, the benefits that have accrued should be considered marital property, regardless of whether the benefit is vested or non-vested. (In re Marriage of Hunt; In re Marriage of Donley (1980), 83 Ill. App.3d 367, 403 N.E.2d 1337.) The rationale for this position recognizes that

"[o]ne of the most valuable assets possessed by the average married couple may be the husband's right to retirement pay or pension benefits, often times earned while the wife has remained as a homemaker, mother and career-builder for her husband." Buser, Division of Pension Benefits in Dissolution of Marriage Proceedings Under Illinois Marital Property Law, 2 Ill. Trial Lawyers J. no. 3, at 21.

Indeed, one writer has suggested that these benefits may be a couple's "only significant asset." Dickinson, Role of Retirement Plans.

"The important expectations attached to this asset by both husband and wife cannot be overstated. They involve, after all, the fundamental belief by both spouses that their mutual security in later years will be protected by pension benefits. They also involve an assumption of interdependence and wealth sharing that has almost certainly been held jointly by both husband and wife during their years of marriage. As between the two spouses, it would seem unfair to deny to one of them the security and the sharing that both assumed would occur, at least where there are available adequate and fair judicial tools for measuring, valuing and allocating the interests involved." Bonavich, Allocation of Private Pension Benefits as Property in Illinois Divorce Proceedings, 29 DePaul L. Rev. 1, 16 (1979).

Yet, it is precisely the problem of measuring and valuing which recently received ...

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