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12/10/87 In Re Marriage of Dorothy M. Lipkin

December 10, 1987

IN RE MARRIAGE OF DOROTHY M. LIPKIN, PETITIONER AND


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Counterrespondent-Appellant, and ARCHIE LIPKIN,

Respondent and Counterpetitioner-Appellee

517 N.E.2d 41, 163 Ill. App. 3d 1033, 115 Ill. Dec. 76 1987.IL.1822

Appeal from the Circuit Court of Champaign County; the Hon. Harry E. Clem, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

The marriage between Dorothy M. Lipkin (petitioner) and Archie Lipkin (respondent) was dissolved on October 28, 1986. On February 18, 1987, the circuit court of Champaign County entered a supplemental judgment of dissolution as to ancillary matters. Petitioner appeals from this order, and her only contention is that the trial court erred in refusing to award her a part of respondent's military pension. We affirm.

In order to deal with the arguments raised by petitioner, we must explain the background litigation between the parties. Petitioner filed a petition for separate maintenance on June 12, 1978, and after litigation, an order for separate maintenance was entered on June 11, 1979. The order provided, in part, as follows:

"

Respondent was ordered to pay $300-per-month maintenance to petitioner. Although respondent was 65 years old and retired from the United States Air Force at the time of the order, no specific mention was made of respondent's pension.

On May 19, 1983, petitioner filed a petition for division of pension. The petition asked for an award of the pension based on the "Uniformed Services Former Spouses' Protection Act" (10 U.S.C.A § 1408 (West 1983)). On October 6, 1983, respondent filed a motion to dismiss which stated that the previous order of separate maintenance had approved a property settlement. The motion also suggested petitioner's cause of action was one for separate maintenance, and that division of property, in the absence of mutual agreement, could only be effected in a dissolution action. The court granted respondent's motion to dismiss on January 3, 1984.

The petitioner's motion to reconsider was unsuccessful; the trial court held that the order of June 1979 was a final and appealable order, and further consideration of the division of marital property was barred under the principles of res judicata. This order was by docket entry on June 25, 1984.

On July 10, 1985, petitioner filed a petition to modify her maintenance. Respondent filed a counterpetition for dissolution of marriage on August 22, 1986. The counterpetition alleged the property interests had been divided by the June 1979 ...


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