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01/20/94 MARRIAGE MARTHA J. ALSHOUSE v. MERRILL A.

January 20, 1994

IN RE THE MARRIAGE OF: MARTHA J. ALSHOUSE, PETITIONER-APPELLEE,
v.
MERRILL A. ALSHOUSE, RESPONDENT-APPELLANT.



Appeal from the Circuit court of the Thirteenth Judicial Circuit, Bureau County, Illinois. Honorable C. Howard Wampler, Judge Presiding.

Released for Publication February 24, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

Merrill A. Alshouse appeals from an order of the circuit court of Bureau County awarding his former wife, Martha J. Alshouse, a portion of his pension benefits in the sum of $83,000. He asserts that the following rulings were erroneous: (1) the valuation of Martha's interest at $83,000, (2) the denial of his motion to vacate the trial court's order, and (3) the award of attorney fees to Martha in the sum of $2,600. We affirm.

PENSION BENEFITS

Martha J. Alshouse filed a petition for dissolution of marriage against her husband, Merrill A. Alshouse, in the circuit court of Bureau County in April of 1982, and a judgment of dissolution was entered on July 1, 1982. The parties' Phase II settlement agreement was incorporated into the judgment of dissolution on May 20, 1983, including a provision that the determination of the value of Martha's interest in Merrill's pension plan would be reserved until his retirement. That particular provision was as follows:

"The parties further agreed the value of [Martha's] interest in [Merrill's] pension plan at Northern Illinois Gas Company, if any, shall be reserved until [his] retirement based on his marital and non-marital contribution to said plan. Items to be considered in the formula to arrive at the value of the pension plan are the dates of employment of [Merrill] with his employer on February 9, 1958, the date of marriage of November 25, 1961, the date of dissolution of July 1, 1982, the total years of non-marital contributions and the date of retirement all to be considered in arriving at some type formula to be used in calculating the marital value of the pension, if any, at the time of retirement."

Merrill retired on July 1, 1990, at age 60 and elected to receive his retirement benefits in a lump sum payment of $220,875. Martha filed a motion on August 7, 1990, requesting the court to determine the value of her interest in the pension plan.

At the hearing on Martha's motion, Merrill's expert witness, John C. Whitney, a consulting actuary employed by the firm that prepared the pension plan in question, testified that at the time of the divorce in 1982, Merrill was entitled to a monthly benefit of $732 at age 65 which would require $57,075 to be fully funded by the company. He stated that the present value of the plan on July 1, 1982, was $33,000, while on July 1, 1990, the value of the $732 per month benefit was $57,000.

Whitney explained that the lump sum benefit of $220,000 was the present value of the $1,794 monthly benefit to which Merrill was entitled beginning July 1, 1990, at age 60. The increase in monthly benefit from 1982 to 1990 was attributable to additional years of service, increases in pay, and changes in the pension plan adopted by the employer in 1984.

Martha's expert witness, F.J. Martinaitis, a certified public accountant, also testified that, as of July 1, 1982, Merrill would be entitled to a monthly pension benefit of $732 when he reached age 65. Using a life expectancy of 16.9 years, the witness concluded that in 1990 the present value of that benefit was $57,000.

Martinaitis also testified to an alternative method of computation using the formula approved in In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511, where the court held that the marital portion of the pension is computed by multiplying the present value of the pension benefit by a fraction whose numerator is the number of months of marriage during which benefits were being accumulated and whose denominator is the total number of months of employment during which benefits were accumulated. This computation produces a marital portion of $145,483 to which the witness added interest of $19,009 to arrive at a total value of $164,492.

After the hearing, the court used the formula set forth in Hunt to find that Martha's 50 per cent share, including interest from the date of Merrill's retirement to October 31, 1992, was $82,246. Since Merrill had continued to earn interest on the pension benefit during the five months since the ...


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