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02/07/95 MARRIAGE JANET A. CARLSON v. CITY

February 7, 1995

IN RE THE MARRIAGE OF: JANET A. CARLSON, PETITIONER-APPELLEE, AND JOHN C. CARLSON, RESPONDENT,
v.
CITY OF GALESBURG FIREFIGHTERS' PENSION FUND, ADDED PARTY DEFENDANT-APPELLANT, AND CITY OF GALESBURG AS EMPLOYER UNDER AETNA LIFE AND CASUALTY SURETY COMPANY, ACCOUNT 990119, PARTICIPANT EMPLOYEE, JOHN C. CARLSON, ADDED PARTY DEFENDANTS, DEFENDANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. No. 86 D 326. Honorable Jay M. Hanson, Judge Presiding.

Released for Publication March 8, 1995.

Present - Honorable Peg Breslin, Justice, Honorable Michael P. MC Cuskey, Justice, Honorable William E. Holdridge, Justice

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The marriage of John Carlson (John) and Janet Carlson (Janet) was dissolved in the circuit court of Henry County. Thereafter, Janet became entitled to a share of the pension benefits (the pension) which John would receive as a result of his service to the City of Galesburg Fire Department. The City of Galesburg Firefighters' Pension Fund (the Fund) agreed to send Janet's share of the pension directly to her. The trial court incorporated this agreement into an order.

About three years later, the Fund filed a motion asking the court to vacate the agreed order. The Fund claimed that no statute or judicial opinion provided any authority for the payment of pension benefits directly to a nonemployee divorced spouse. The trial court denied the Fund's motion. The Fund appeals.

Following our careful review of the record and applicable law, we conclude that the trial court was correct when it denied the Fund's motion. We have found no statute or case law which prohibits a pension fund established under Article 4 of the Pension Code from agreeing to disburse pension benefits directly to nonemployee divorced spouses. Furthermore, the Fund agreed to the arrangement about which it now complains, despite the fact that the Fund was a party to the proceeding and was represented by counsel. As a result, we find that the agreed order was valid. Consequently, based on the facts of this case, we affirm.

FACTS

John and Janet were married in 1968. John is a firefighter for the City of Galesburg Fire Department. He makes regular payments into the Fund, which provides for his pension benefits. On December 1, 1988, the trial court entered an order dissolving the parties' marriage. Included in the order was a provision awarding Janet a share of John's pension. The court ordered John to execute all documents necessary to secure Janet's right to a portion of his pension. John was also ordered to begin paying to Janet her share of his pension on his sixtieth birthday, whether or not he had retired at that time.

John failed to sign any of the necessary documents. On November 2, 1989, Janet filed a petition seeking leave to add the Fund as a party defendant. Her petition was subsequently granted. Additionally, Janet filed a second petition asking the court to compel John to execute the documents. Janet also asked for an order directing the Fund to pay her share of the pension directly to her.

On May 1, 1991, Janet and the Fund consented to the entry of an order (the agreed order) in which Janet agreed to defer receipt of the pension until John's retirement. In return, the Fund agreed to mail Janet's share of the pension directly to her. The agreed order contains other directives, none of which are relevant to this appeal.

Some time later, the Illinois Department of Insurance (Department) conducted an audit of the Fund's assets and liabilities. When the Department discovered the agreed order, it informed the Fund of its opinion that the agreed order was invalid. Shortly thereafter, on April 8, 1994, the Fund filed a motion asking the trial court to vacate the portion of the agreed order directing the Fund to pay the pension to Janet. The Fund argued that the agreed order violated Illinois law and public policy. The Fund contended there was no legal basis for the entry of the agreed order. The trial court denied the Fund's motion on June 2, 1994. This timely appeal followed. The Illinois Police Pension Fund Association and the Illinois Professional Firefighters' Association (amici) have filed an amicus curiae brief.

The Fund and amici argue that the trial court committed error when it denied the Fund's motion to vacate the agreed order. First, amici argue that applicable Federal law prohibits the apportionment of pension benefits to nonemployee divorced spouses without the entry of a qualified domestic relations order. Second, the Fund contends that neither the Illinois Pension Code (Ill. Rev. Stat. 1991, ch. 108 1/2, par. 1-101 et seq.) (the Pension Code) nor applicable case law permit nonemployee divorced spouses to collect benefits directly from civil service pension funds. Finally, based on ...


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