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03/10/94 MARRIAGE PEGGY LEE FRAIN

March 10, 1994

IN RE MARRIAGE OF: PEGGY LEE FRAIN, PETITIONER-APPELLEE, AND ROBERT J. FRAIN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Madison County. No. 81-D-260. Honorable Ellar Duff, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Welch, Goldenhersh, Rarick

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Robert J. Frain ("respondent") appeals the trial court's grant of a petition by Peggy L. Frain ("petitioner") to enforce a marital settlement agreement provision relating to her one-half interest in the respondent's firefighter's pension. After approximately 20 years of marriage, the parties divorced in 1981. As part of a marital settlement agreement executed on February 20, 1981, it was agreed:

"The wife shall have a one-half interest in any pension * * * or other retirement benefits acquired by the husband during the time of his employment with the City of East St. Louis, Illinois until the date of the signing of this agreement. No benefits shall be payable to the wife until such time as any benefits are due and payable to the husband.

Any and all benefits accruing to the husband subsequent to the date of the signing of this agreement through his employment shall be the sole and separate property of the husband[,] and wife shall have no title or interest therein. Nothing in this paragraph is meant to conflict with or negate the wife's right to receive one-half of all pension * * * or other retirement benefits accruing to the husband through his employment with the City of East St. Louis, Illinois up to the date of the signing of this agreement when such payments based upon such accrued rights are due."

On October 1, 1988, the respondent retired after 26 years of service as a firefighter with the City of East St. Louis. Pursuant to section 4-109 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-109(a) (now see 40 ILCS 5/4-109(a) (West 1992))), the respondent began receiving his pension. On May 21, 1991, the petitioner filed in the circuit court of Madison County a petition for rule to show cause, claiming that the respondent had failed to pay her the pension benefits due under the marital settlement agreement. The petitioner argued that she was entitled to her share of the pension because the respondent was receiving his pension, and under the terms of the agreement, she was entitled to her share once the benefits were "due and payable to the husband." On August 21, 1991, the respondent filed his response, asserting that he did not owe the petitioner any pension benefits until he reached the age of 60 in 1997. The respondent argued that because he had less than 20 years of service at the time the marriage was dissolved, and because section 4-109(b) of the Code (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-109(b) (now see 40 ILCS 5/4-109(b) (West 1992))) provides that those with less than 20 years of service receive pension benefits at age 60, the petitioner was entitled to her share when respondent turned 60 in 1997.

On December 10, 1991, the circuit court found in favor of the petitioner and ordered the respondent pay the petitioner $370.86 per month, which represented one-half of the respondent's pension benefits had he retired in 1980. The court further ordered the respondent to pay the petitioner $14,092.68, which represented the amount owed from October 1988 to December 1991. On December 20, 1991, the respondent filed a motion to reconsider. After a premature appeal to this court by the respondent, the case went back to the circuitcourt. On September 9, 1992, the circuit court denied the respondent's motion to reconsider.

The respondent now appeals and we affirm. The issue in this case is whether the circuit court misconstrued the marital settlement agreement.

At the time the agreement was signed in 1981, the respondent had 18 years of service as a firefighter. Had respondent retired in 1981, he and the petitioner would not have received any pension benefits until he reached the age of 60 in 1997. (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-109(b) (now see 40 ILCS 5/4-109(b) (West 1992)) (firefighters who retire before obtaining 20 years of service are entitled to pension benefits at the age of 60).) However, when the respondent retired in 1988, he had 26 years service as a firefighter. Even though the respondent was only 51 years old when he retired in 1988, he was entitled to pension benefits in 1988. Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-109(a) (now see 40 ILCS 5/4-109(a) (West 1992)) (firefighters who are 50 years or older and have more than 20 years of service are entitled to pension benefits upon retirement).

The respondent relies on that provision in the agreement which reads: "Any and all benefits accruing to the husband subsequent to the date of the signing of this agreement through his employment shall be the sole and separate property of the husband[,] and wife shall have no title or interest therein." (Emphasis added.) Based on this provision, the respondent argues that by working more than 20 years, he accrued an additional benefit (i.e., the ability to retire and collect his pension in 1988), which was subsequent to the signing of the marital settlement agreement, and as a result, he alone is entitled to the benefit. Following this interpretation, the petitioner would have to wait until 1997 before getting her pension benefits.

The petitioner, however, relies on that provision in the agreement which reads: "No benefits shall be payable to the wife until such time as any benefits are due and payab1e to the husband. " (Emphasis added.) The petitioner argues that when the respondent began receiving pension benefits in 1988, this provision was triggered. Under this interpretation, the petitioner would be entitled to benefits starting in 1988.

At the outset, we reject the respondent's erroneous assertion that In re Marriage of Hackett (1986), 113 Ill. 2d 286, 497 N.E.2d 1152, 100 Ill. Dec. 790 (pensions are a form of deferred compensation and, if acquired during marriage, constitute marital property), and In re Marriage of Roehn (1991), 216 Ill. App. 3d 891, 576 N.E.2d 560, 159 Ill. Dec. 891 (same), "clearly require" reversal in this case. Those cases require no such result. In fact, those cases have no bearing on the resolution of this case because thepetitioner does ...


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