APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
and RICHARD W. BINGHAM, Respondent-Appellee
537 N.E.2d 1158, 181 Ill. App. 3d 966, 130 Ill. Dec. 829 1989.IL.616
Appeal from the Circuit Court of Ogle County; the Hon. John L. Moore, Judge, presiding.
JUSTICE LINDBERG delivered the opinion of the court. REINHARD and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Petitioner, Vivianita Bingham, appeals the trial court's dismissal of her petition for modification which sought 50% of respondent's future military retirement benefits, as well as 50% of all such benefits received from February 1, 1983, to the present time. On appeal, petitioner contends that the trial court erroneously found that the judgment of dissolution, dated November 10, 1981, was not final and appealable as it reserved the issue of maintenance to a future date. Petitioner further argues that the trial court's finding that section 510.1 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510.1) was not applicable was error. We agree with petitioner's contentions, reverse the judgment of the trial court and remand the cause.
Respondent, Richard W. Bingham, joined the armed forces in 1951. The parties were married on December 5, 1953. In March 1974, respondent retired from the armed forces after approximately 23 years of service.
On May 28, 1981, petitioner filed a petition for dissolution of marriage which was granted on November 6, 1981. On November 10, 1981, the trial court entered its judgment of dissolution and ordered the distribution of the parties' property and the payment of the marital debts and attorney fees. The trial court further awarded custody of the couple's remaining minor child, Debra, to petitioner and ordered respondent to make monthly child support payments in the amount of $200. Petitioner was not awarded monthly maintenance payments at the time of the dissolution, and the order specifically reserved the issue "until the minor child reaches 18, or until he [ sic ] finishes high school, whichever is later." At the time of the dissolution, Debra was 16 years old.
Shortly before Debra graduated from high school, petitioner filed a petition for modification seeking maintenance. The trial court granted the petition on August 6, 1984, and ordered respondent to make monthly maintenance payments of $100 to petitioner for 18 months.
On March 5, 1986, petitioner filed a petition for modification seeking an award of 50% of respondent's future military retirement benefits as well as 50% of all such benefits received by respondent from February 1, 1983, to the filing of the petition herein. Respondent resisted the petitioner's request for modification on the ground that the dissolution order of November 10, 1981, was not "final" within the meaning of section 510.1 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510.1). This statute provides for the reopening of dissolution orders, judgments or agreements that became final between June 26, 1981, and February 1, 1983, for the purpose of reconsidering the distribution of military retirement benefits. (Ill. Rev. Stat. 1987, ch. 40, par. 510.1.) Respondent argued that the dissolution order did not become final until the trial court issued its modification order which awarded petitioner maintenance payments on August 6, 1984, a date which fell outside the window of opportunity provided by the statute.
In an order filed August 1, 1988, the trial court found that the dissolution judgment of November 1981 did not become final and appealable until August 6, 1984, with the entry of the court's maintenance order; thus, section 510.1 was not applicable, and petitioner's petition to modify filed March 5, 1986, was dismissed.
Some months prior to the dissolution of the parties' marriage, the United States Supreme Court issued its decision in McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, in which it declared that Federal law precluded State courts from dividing military non-disability retirement pay pursuant to State property distribution laws in a dissolution of marriage proceeding. We note that on the date of dissolution in the instant case, neither party presented any testimony whatsoever regarding respondent's receipt of military retirement benefits, nor did petitioner make any request for an award of a portion of such benefits.
On February 1, 1983, Congress enacted the Uniformed Services Former Spouses Protection Act (10 U.S.C.A. § ...