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11/22/94 MARRIAGE LINDA K. BURKHART

November 22, 1994

IN RE MARRIAGE OF LINDA K. BURKHART, PETITIONER-APPELLEE, AND TONY L. BURKHART, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lake County. No. 90-D-794. Honorable Jane D. Waller, Patrick N. Lawler, and Helen R. Franks, Judges, Presiding.

Released for Publication December 29, 1994.

PECCARELLI, Woodward, Quetsch

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

The circuit court of Lake County entered a judgment dissolving the marriage of petitioner, Linda Burkhart (Linda), and respondent, Tony L. Burkhart (Tony), on April 16, 1990. The judgment incorporated, in part, the parties' oral property settlement agreement. During the prove up, Linda testified to the oral property settlement agreement which provided that Tony's entire military pension would be his property. Tony was not present. The court did not approve the distribution of Tony's military retirement pay and attempted to reserve the issue. Three years later, on November 12, 1993, upon notice, and following argument and hearing, the court divided the military pension between the parties. On appeal, Tony argues that the trial court abused its discretion in dividing the military pension 40% to Linda and 60% to Tony. We reverse and remand.

The parties married on August 26, 1972. Two children were born to the marriage: Chad A. Burkhart, born February 20, 1973, and Kendra L. Burkhart, born July 26, 1974. The children, age 17 and 15 at the time of the dissolution of their parent's marriage, are now emancipated.

On April 16, 1990, Linda filed a verified petition for dissolution of her 17-year marriage to Tony. Linda also filed, on the same date: (1) a pro se appearance by Tony; (2) a stipulation for (a) entry of an order of default against Tony and (b) "that this matter may be heard and the facts proved up as a default case on April 16, 1990"; and (3) a judgment for dissolution incorporating the agreement of the parties, signed by both parties. Hearing proceeded instanter. Tony was neither present nor represented by counsel.

Linda testified that Tony was 40 years old, that he was retired from the Navy, currently receiving retirement pay, and that he had quit his trucking job. Her verified petition states that she was 35 years old and worked as a cashier for the Mutual True Value Hardware of Highland Park, Illinois. Linda testified as to the grounds of mental cruelty, custody and visitation, and other terms of an oral agreement, as set forth in a written judgment.

The court granted a dissolution of marriage, awarded custody, child support, and medical insurance for the children, and barred maintenance to either party. The court entered the written judgment tendered by Linda with one exception--the trial court did not approve the parties' agreement as to Tony's pension. The judgment entered on April 16, 1990, shows the award of pension to Tony scratched out, with the following handwritten addition: "The issue of the division of the Respondent's military retirement income will be reserved by this Court for future hearing upon notice." The court ordered Linda to send a copy of the revised judgment to Tony.

The April 16, 1990, testimony pertinent to this appeal is as follows:

"THE COURT: Mr. Burkhart was in the navy during most of your marriage; is that right?

THE PETITIONER: Yes.

THE COURT: And is there some reason why you're giving up your interest in his retirement pay?

THE PETITIONER: Well, he said he needed money to live off of, and he also knew that the 25 percent [presumably for child ...


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