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In Re Marriage of Hackett

OPINION FILED SEPTEMBER 17, 1986.

IN RE MARRIAGE OF SANDRA J. HACKETT, APPELLEE, AND F. EUGENE HACKETT, APPELLANT.


Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Coles County, the Hon. Richard E. Scott, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Respondent, F. Eugene Hackett, appealed, and petitioner, Sandra J. Hackett, cross-appealed, from the judgment of the circuit court of Coles County entered upon dissolution of their marriage. In a Rule 23 order, the appellate court affirmed (103 Ill.2d R. 23; 135 Ill. App.3d 1157), and we allowed respondent's petition for leave to appeal (103 Ill.2d R. 315(a)).

The parties were married for 27 years. Respondent was a fireman, and petitioner was employed in the office of the circuit clerk of Coles County. The sole question presented by respondent's appeal is whether the provisions of section 4-135 of the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 4-135) precluded the circuit court's holding here that under the provisions of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503), the proceeds of respondent's vested interest in the Fireman's Pension Fund were properly classified as marital property.

Section 503, with certain exceptions enumerated in section 503(a), provides:

"(a) For purposes of this Act, `marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property':

(b) For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section." Ill. Rev. Stat. 1983, ch. 40, pars. 503(a), (b).

Section 4-135 of the Illinois Pension Code provided:

"Sec. 4-135. Benefits — Exempt. No portion of such pension fund shall, either before or after its order of distribution by the board, to any retired fireman, or to the widow or guardian of any minor child or children, or to a dependent parent or parents, be held, seized, taken subject to, or detained or levied on by virtue of any process, injunction interlocutory or other order or judgment, or any process or proceeding whatever issued out of or by any court of this State, for the payment or satisfaction in whole or in part of any debt, damages, claim, demand or judgment against any such fireman, surviving spouse, or the guardian of any of his or her minor child or children or dependent parent or parents, but the fund shall be sacredly held, kept, secured and distributed for the purposes of pensioning the persons named in this Article and the `Firemen's Pension Fund Act of 1919' and for no other purposes whatever." Ill. Rev. Stat. 1983, ch. 108 1/2, par. 4-135.

By enactment of Public Act 83-1440 (approved Sept. 16, 1984, eff. Jan. 1, 1985), section 4-135 was amended to provide:

"Sec. 4-135. Benefits — Exempt. No portion of the such pension fund shall, either before or after a board's its order of distribution by the board, to any retired firefighter or his or her beneficiaries fireman, or to the widow or guardian of any minor child or children, or to a dependent parent or parents, be held, seized, taken subject to, or detained or levied on by virtue of any process, injunction interlocutory or other order or judgment, or any process or proceeding whatever issued out of or by any court of this State, for the payment or satisfaction in whole or in part of any debt, damages, claim, demand or judgment against any firefighter or his or her beneficiaries such fireman, surviving spouse, or the guardian of any of his or her minor child or children or dependent parent or parents, but the fund shall be sacredly held, kept, secured and distributed for the purposes of pensioning such firefighter and beneficiaries the persons named in this Article and the `Firemen's Pension Fund Act of 1919' and for no other purposes whatever." 1984 Ill. Laws 3183-3184.

Respondent argues that the operative language of section 4-135, that "the fund shall be held, secured and distributed for the purposes of pensioning such firefighter and beneficiaries and for no other purposes whatever," shows a legislative intent that the pension fund be treated as "a personal entitlement." He cites decisions of the Supreme Court and of this court in which pensions provided for in similarly worded statutes have been held to be personal entitlements which could not be treated as marital property and made subject to equitable distribution. (See In re Marriage of Musser (1981), 87 Ill.2d 68; Hisquierdo v. Hisquierdo (1979), 439 U.S. 572, 59 L.Ed.2d 1, 99 S.Ct. 802; McCarty v. McCarty (1981), 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728.) Parenthetically, although he acknowledges that this court's decision in Musser turned on principles of Federal supremacy and preemption, respondent argues that these Federal cases, because they hold that pensions provided under similar statutes are personal entitlements, provide guidance here.

Petitioner asserts that respondent's argument fails to consider section 4-135 in conjunction with the provision of section 503(b) that all property acquired by either spouse during the marriage is presumed to be marital property. (See In re Marriage of Rogers (1981), 85 Ill.2d 217; In re Marriage of Komnick (1981), 84 Ill.2d 89.) Citing In re Marriage of Smith (1981), 86 Ill.2d 518, petitioner argues that section 503(a) "contains an exclusive list of non-marital property" (86 Ill.2d 518, 528) and that, in order to overcome the presumption of marital property contained in section 503(b), a spouse must prove that the property in question was acquired by a method listed in section 503(a). Echoing the analysis employed by the appellate court, she argues that section 4-135 contemplates levies by creditors, whereas a spouse's right to a pension is in the nature of ownership in the pension in contradistinction to a claim against the husband. Finally, petitioner cites appellate decisions from the first, fourth, and fifth districts, respectively, all of which have held that pensions under the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 1-101) are subject to division pursuant to a dissolution of marriage. In re Marriage of Wisniewski (1982), 107 Ill. App.3d 711 (teacher's pension); In re Marriage of Papeck (1981), 95 Ill. App.3d 624 (fireman's pension); In re Marriage of Uluhogian (1980), 86 Ill. App.3d 654 (State Employees' Retirement System).

Unlike the decision in In re Musser, which was compelled by the Supreme Court's holding in McCarty, the decision here rests upon the provisions of two acts of the General Assembly which, according to the parties, are in conflict. We note, parenthetically, that since McCarty and Musser, Congress has enacted the Uniformed Services Former Spouses' Protection Act (Pub. L. No. 97-252, 96 Stat. 718, 730-38 (1982)), which, as amended in response to McCarty, in pertinent part provides:

"(B)(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." (Section ...


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