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In Re Marriage of Korper



Appeal from the Circuit Court of St. Clair County; the Hon. Dennis Jacobsen, Judge, presiding.


Rehearing denied April 10, 1985.

Respondent Christopher Korper appeals, and petitioner Margaret Korper cross-appeals, from the property disposition and maintenance provisions of an amended judgment of dissolution of marriage entered by the circuit court of St. Clair County on April 19, 1983. On appeal, respondent contends (1) the trial court erred in its choice of method of apportioning respondent's military pension, (2) the trial court erred in its finding that petitioner was entitled to maintenance, and (3) the trial court erred in ordering respondent to pay a portion of petitioner's legal fees. On cross-appeal, petitioner argues that the trial court failed to apportion the marital property justly. In addition, petitioner has sought an order requiring respondent to pay petitioner's legal fees in connection with the defense of this appeal.

The parties were married on April 18, 1961, and were separated on November 22, 1980. At the time the proceedings were commenced petitioner was 42 years old and respondent was 43 years old. During the course of their marriage two children were born and two children were adopted. At the time the proceedings were commenced the two children born to the marriage were still minors and were living with petitioner. Respondent was a lieutenant colonel in the United States Air Force stationed at Scott Air Force Base. Petitioner worked at home as a homemaker.

The judgment from which this appeal and cross-appeal are taken awarded custody of the two minor children born to the parties to respondent. There is no dispute with regard to that award. The disputed portions of the judgment, detailed below as necessary, disposed of the parties' marital property, awarded maintenance to petitioner and ordered respondent to pay a portion of petitioner's legal fees.

• 1 Respondent's first contention of error concerns the trial court's choice of method used to dispose of the retirement benefits to which respondent was entitled under his military pension. At the outset, we note that respondent is appealing the method of disposition used by the trial court, not the value placed on those benefits nor that the value of those benefits was subject to division as being marital property. Based upon a stipulation of the parties, the trial court found the present value of the retirement benefits respondent was entitled to under his military pension to be $296,000. The trial court then found respondent's rights to the retirement benefits acquired during the marriage of the parties to be marital property and awarded petitioner $145,000 as her interest therein. The trial court ordered respondent to pay the petitioner the entire $145,000 within 30 days of the date the judgment of dissolution became final. Until that payment was made, respondent was required to pay petitioner interest thereon in the form of additional maintenance.

Respondent contends that Federal law precludes any allocation of military retirement benefits prior to such time as the benefits are actually received by the retiree. Respondent's argument is based on the United States Supreme Court's ruling in McCarty v. McCarty (1981), 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728, wherein the court held that Federal law precluded the division of military pensions in dissolution proceedings held pursuant to State law. Respondent is cognizant of the subsequent enactment by Congress of the "Uniformed Services Former Spouses' Protection Act" (Pub. L. No. 97-252, 96 Stat. 718, 730-38 (1982)), and that the law was enacted by Congress as a response to the McCarty decision. Section 1002(a) of the Act (96 Stat. 718, 730-31) amends 10 U.S.C. § 1408(c)(1) to read as follows:

"(c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." (Emphasis added.)

Respondent argues that since "disposable retired or retainer pay" is subject to various payroll-related deductions, the amount thereof can only be finally determined once the payment is actually made to the retiree. Respondent maintains that by this use of the phrase "disposable retired or retainer pay," Congress "clearly" intended that the Federal law preemption of State laws that allow division of military retirement benefits remain in effect until those benefits are actually paid to the retiree. Thus, it is respondent's position that by enacting the law Congress intended to create only a narrow exception to the holding in McCarty. We disagree.

We find respondent's statutory interpretation to be unduly technical and contrary to the express intent of Congress as reflected in the following legislative history of the Act.

"The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision." (S. Rep. No. 502, 97th Cong., 2d Sess. 16 (1982), U.S. Code Cong. & Admin. News 1982, 1596, 1611.)

It is evident from this legislative history that Congress' intent in enacting the law was to abrogate all applications of the McCarty decision by placing the courts of the several States into a pre-McCarty position. (See, e.g., Walentowski v. Walentowski (1983), 100 N.M. 484, 672 P.2d 657; In re Marriage of Frederick (1983), 141 Cal.App.3d 876, 190 Cal.Rptr. 588; In re Marriage of Steczo (Ariz. App. 1983), 135 Ariz. 199, 659 P.2d 1344; In re Marriage of Buikema (1983), 139 Cal.App.3d 689, 188 Cal.Rptr. 856.) Respondent's argument, relying as it does on the continuing partial application of the McCarty decision, must therefore fail.

Our law prior to McCarty recognized a marital property interest in retirement benefits where the rights thereto were acquired during marriage. (In re Marriage of Coram (1980), 86 Ill. App.3d 845, 408 N.E.2d 418.) This is true regardless of whether the interest is matured, vested or non-vested, or contributory or noncontributory. In re Marriage of Pieper (1979), 79 Ill. App.3d 835, 398 N.E.2d 868; In re Marriage of Hunt (1979), 78 Ill. App.3d 653, 397 N.E.2d 511.

Our law prior to McCarty likewise recognized a marital property interest in retirement benefits from military pensions. (In re Marriage of Musser (1979), 70 Ill. App.3d 706, 388 N.E.2d 1289.) Following the McCarty decision our supreme court overruled the appellate court's decision in Musser, concluding that the "case [was] governed by McCarty." (In re Marriage of Musser (1981), 87 Ill.2d 68, 70, 429 N.E.2d 530, 531.) The effect of the Uniformed Services Former Spouses' Protection Act is, ...

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