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04/13/88 In Re Marriage of Ruby J. Prockish

April 13, 1988



and THOMAS H. PROCKISH, Respondent-Appellee

521 N.E.2d 1274, 168 Ill. App. 3d 739, 118 Ill. Dec. 581 1988.IL.528

Appeal from the Circuit Court of Lake County; the Hon. George W. Pease, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.


On October 15, 1986, the circuit court of Lake County entered a written judgment for dissolution of marriage of the parties which dissolved the marriage and resolved all other matters. It found, inter alia, that $11,000 of respondent's, Thomas H. Prockish's, yearly military pension was attributed to his disability and, therefore, was preempted from the State's jurisdiction pursuant to section 1408 of the Uniformed Services Former Spouse's Protection Act (10 U.S.C. § 1408 (1982)). Section 1408 was amended effective November 14, 1986, and, in pertinent part, allows the division and allocation of military disability pensions. (Act of Nov. 14, 1986, Pub. L. No. 99 -- 661, 1986 U.S. Code Cong. & Admin. News (100 Stat.) 3887.) Petitioner, Ruby J. Prockish, filed a post-trial motion contending that the amendment entitled her to share in respondent's entire pension, including his disability benefits. Following the denial of the motion, petitioner appeals.

The sole issue raised on appeal is whether the trial court erred when it failed to apply the amendment so as to include respondent's disability benefits as part of his entire military pension to be divided in the dissolution of marriage proceeding.

On October 25, 1984, petitioner filed a petition for dissolution of the parties' 24-year marriage. Subsequently, the parties submitted a pretrial memorandum to the court which stipulated the following facts.

At the time that petitioner filed her petition, both parties were 47 years old. Respondent, a retired Master Chief in the Navy with 28 years of service, worked as a sales associate with a realtor and earned approximately $26,900 in 1984. Petitioner worked as a warehouse manager and earned approximately $20,000 annually.

With regard to respondent's military pension, both parties acknowledged that "vested accruing military pension" is divisible in Illinois pursuant to the Uniformed Services Former Spouses' Protection Act (Act) (10 U.S.C. § 1408 (1982)), which authorizes State courts to divide that portion of a pension designated as "disposable retired or retainer pay." (10 U.S.C. § 1408(c)(1) (1982)). Section 1408(a)(4) of the Act, which was in effect at the time, defines "disposable retired or retainer pay" as the "total monthly retired or retainer pay to which a member is entitled (other than the retired pay of a member retired for disability under chapter 61 of this title)." (Emphasis added.) 10 U.S.C. 1408(a)(4) (1982).

The pretrial memorandum provided further that, in 1980, respondent suffered a stroke while on active duty and, in March 1981, he suffered a heart attack. On July 20, 1983, the military declared respondent unfit for duty, placed him on the temporary disability retired list, and determined that he was entitled to a 40% disability rating. While on the temporary duty retired list, respondent received $922 per month as nontaxable retired disability pay, $742.24 of which constituted disposable retired or retainer pay as defined at that time. The parties' marriage covered 23 out of 28, or 83%, of respondent's service years. This percentage applied against the disposable retired or retainer pay amounted to $7,390 annually, of which petitioner would be allocated 50% or $3,675.17. The remaining disability pension was nondivisible and non-marital pursuant to Federal law.

On January 21, 1986, respondent filed a motion in limine requesting that the court determine whether his nontaxable disability pension was divisible as marital property pursuant to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1985, ch. 40, par. 503) as well as section 1408 of the Federal Act. The court issued a letter memorandum which stated that, pursuant to section 1408 of the Act, the Marriage Act only applied to that portion of the pension not attributable to his disability benefit.

On July 21, 1986, upon consideration of the testimony, stipulations, and written arguments of the parties, the trial court issued a letter setting forth its findings and requesting ...

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