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03/09/88 In Re Marriage of Frances Marcia Marshall

March 9, 1988

IN RE MARRIAGE OF FRANCES MARCIA MARSHALL,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellee, and WILLIAM EUGENE MARSHALL,

Respondent-Appellant

520 N.E.2d 1214, 166 Ill. App. 3d 954, 117 Ill. Dec. 863 1988.IL.334

Appeal from the Circuit Court of Vermilion County; the Hon. Joseph E. Moore, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On July 13, 1987, the circuit court of Vermilion County entered an order pursuant to a motion for summary judgment filed by petitioner Frances Marcia Marshall, directing respondent William Eugene Marshall to pay to petitioner a portion of the payments he receives from being placed by the military on the temporary disability retired list. Respondent appeals.

A judgment for dissolution of marriage was entered in the marriage of petitioner Frances Marshall and respondent William Marshall by the circuit court of Vermilion County on September 13, 1979. At the time, the parties had been married 17 years, and respondent had been in the Air Force the entire time. In 1984, respondent was diagnosed as having cancer, and on August 20, 1984, the military declared him 100% disabled and placed him on the temporary disability retired list, at which time he began receiving benefits.

On December 11, 1984, a petition for entry of an order nunc pro tunc was filed by petitioner. The purpose of the petition was to correct an alleged scrivener's error in the dissolution order. A review of the order indicates that in the findings of the order, paragraph No. 17 states it is the agreement of the parties that respondent would stay in the military for at least 20 years, and petitioner would receive one-half of any retirement benefits attributable to the 17 years of their marriage.

On September 30, 1986, the court entered a nunc pro tunc order adding the following language to the operative part of the 1979 judgment for dissolution:

"William Eugene Marshall will not voluntarily take any action to jeopardize the acquisition of his military pension benefits; that at such time as William Eugene Marshall is entitled to receive the military pension, that Frances Marcia Marshall will be entitled to receive from William Eugene Marshall one-half of the gross military pension received by William Eugene Marshall based upon a figure determined by dividing each gross monthly military pension payment by the total number of years of military service of William Eugene Marshall completed in determining that benefit, and by further multiplying the figure obtained by said division by 17 years.

William Eugene Marshall shall pay to Frances Marcia Marshall the sum as determined by the computations outlined in the preceding paragraph, in lieu of all maintenance, support or other marital rights which Frances Marcia Marshall may have in and to William Eugene Marshall's assets and estate. Payments shall commence upon William Eugene Marshall's receipt of the military pension, and payable from month to month thereafter so long as Frances Marcia Marshall shall live. No event, other than the death of Frances Marcia Marshall, shall terminate Frances Marcia Marshall's right to receipt of said payment from William Eugene Marshall or his estate."

On November 21, 1986, petitioner filed an amended petition for money judgment requesting, in part, that respondent be ordered to pay petitioner her share of the payments he received from being placed on the temporary disability retired list as required by that portion of the dissolution judgment dealing with military pensions. Respondent answered that the temporary disability retired list payments are disability payments and not pension benefits.

On March 2, 1987, petitioner filed a motion for summary judgment. On May 29, 1987, the court entered a memorandum opinion holding the temporary disability retired list payments were actually a retirement pension, and petitioner was entitled to her share of the whole amount. The court went on to find this pension is includable in marital property and that the Illinois courts have power to allocate the pension.

Prior to addressing the specific issues, we review the Federal statutory framework relating to the question of military benefits, as set forth in title 10 of the United States ...


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