Appeal from the Circuit Court of St. Clair County; the Hon.
Roger Scrivner, Judge, presiding.
PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The petitioner, Joyce Habermehl, appeals from a summary judgment rendered in favor of the respondent, Donald Habermehl, on petitioner's motion to modify the amended judgment for maintenance and division of marital and non-marital property of February 24, 1982.
The Habermehl marriage was dissolved on March 3, 1981, in a Missouri circuit court by default decree. The decree made no provision for maintenance or division of marital property due to lack of personal jurisdiction over the petitioner. On April 21, 1981, petitioner filed a petition for maintenance and division of marital and non-marital property in St. Clair County, Illinois, to have the court decide the issues of property and support.
On October 5, 1981, a judgment for maintenance and for division of marital and non-marital property was entered. At the time of this judgment petitioner was age 46 and respondent was age 47. Petitioner, being dissatisfied, then made timely appeal from the denial of her post-trial motion to this court. That appeal was voluntarily dismissed on February 22, 1982, because the parties had entered into a marital settlement agreement that was then made a part of an amended judgment entered on February 24, 1982.
At the time of entry of the judgment and the amended judgment the Supreme Court case of McCarty v. McCarty (1981), 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728, was effective law. It held that State courts could not make division of military pensions in dissolution of marriage proceedings. But, on February 1, 1983, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) (10 U.S.C. § 1408(c)(1) (1982)) and made it effective retroactively as of June 25, 1981. This act abrogated the effect of the Supreme Court's decision in the McCarty case.
The judgment for maintenance and division of marital and non-marital property of October 5, 1981, contained the following paragraph 10:
"The respondent currently receives $620.00 per month in military retirement pay as a result of his prior service in the United States Air Force. The court has not considered this income to be marital property but has considered it in making a determination regarding maintenance."
The "Marital Settlement Agreement" entered into by the parties provided, in part:
"c. Donald F. Habermehl shall have as his sole and exclusive property free and clear from any claims by Joyce J. Habermehl, the following items of marital property:
(2) All interest in his retirement pension through the Civil Service and his retirement pension through the Department of the Air Force."
The settlement agreement was otherwise a comprehensive agreement for the disposition of all the non-marital and marital property of the parties. The amended judgment of February 24, 1982, incorporated the settlement agreement, including the foregoing pension provisions.
On February 17, 1984, petitioner filed a motion to modify the judgment of October 25, 1981, and the amended judgment of February 24, 1982, alleging that because of the McCarty decision, in effect at the time of the agreement of the parties for settlement of the property division issues and the judgment reflecting such settlement, she and the court had not considered the military pension to be marital property. She alleged further that the act of Congress that retroactively abrogated the effect of the McCarty decision had the effect of overruling the judgment of the court and making possible a reallocation of the marital property of the parties, particularly including the respondent's military pension. Petitioner's motion was beset with two jurisdictional problems. Her motion was filed more than 30 days after the entry of the amended judgment, and the amended judgment incorporated and adopted an agreement of the parties for nonmodification of terms pursuant to section 502(f) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 502(f)).
Following a hearing, summary judgment was granted respondent by the trial court upon the grounds that its jurisdiction to consider petitioner's motion to modify was foreclosed by the above-mentioned impediments.
In this setting, petitioner contends on appeal that the trial court erred in granting summary judgment to respondent on her motion to modify. She asserts that because the McCarty decision effectively precluded the court from considering respondent's military pension as marital property, the circumstances were such that section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) should be utilized to permit opening of the judgment and amended judgment to award her a portion of respondent's military pension, even though her motion was filed more than 30 days after the amended judgment ...