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09/19/96 MARRIAGE JOHN G. DEROSSETT AND CYNTHIA L.

September 19, 1996

IN RE MARRIAGE OF JOHN G. DEROSSETT, APPELLANT, AND CYNTHIA L. DEROSSETT, APPELLEE.


The Honorable Justice Harrison delivered the opinion of the court:

The opinion of the court was delivered by: Harrison

Petitioner and respondent were married on April 15, 1987. On February 2, 1994, petitioner filed a petition for dissolution of marriage. At that time, petitioner had been working at Case IH Corporation for approximately 30 years. As a result of his employment, petitioner had developed bilateral carpal tunnel syndrome that affected both his arms and elbows. He had filed a workers' compensation claim in which he alleged that the date of injury was January 18, 1990. On July 21, 1994, the dissolution matter proceeded to a hearing on contested issues, including whether respondent was entitled to an interest in petitioner's pending workers' compensation claim. On September 7, 1994, the trial court entered an order determining, inter alia, that respondent was entitled to a portion of the claim, and reserving the amount of the award until the claim was settled. Later that same month, petitioner accepted a lump-sum settlement offer of his claim in the amount of $140,000, which, after deducting attorney fees and costs, yielded a net sum of $111,905. *fn1

The trial court entered a judgment of dissolution of marriage on October 19, 1994. On November 1, 1994, petitioner filed a "Motion to Determine Respondent's Interest in Petitioner's Workman's Compensation Claim" and a motion to reconsider, requesting, inter alia, that the trial court reverse that portion of its judgment awarding respondent an interest in the claim. After a motion hearing on December 7, the trial court issued its opinion and order on December 13, 1994, denying petitioner's motion to reconsider and awarding respondent 30% of the $111,905 workers' compensation settlement.

The appellate court affirmed, finding that under section 503 of the Act and the reasons set forth in In re Marriage of Dettore, 86 Ill. App. 3d 540, 42 Ill. Dec. 51, 408 N.E.2d 429 (1980), and In re Marriage of Thomas, 89 Ill. App. 3d 81, 44 Ill. Dec. 430, 411 N.E.2d 552 (1980), the trial court had properly determined that the workers' compensation claim was marital property because it accrued during the marriage. No. 3--95--0019 (unpublished order under Supreme Court Rule 23). In this appeal, petitioner argues that because the settlement is compensation for his diminished earning capacity, which, due to his retirement, will continue far beyond the date of dissolution, the settlement should be considered nonmarital property. Petitioner urges this court to adopt the so-called "analytical" approach employed by the Fifth District in In re Marriage of Waggoner, 261 Ill. App. 3d 787, 199 Ill. Dec. 844, 634 N.E.2d 1198 (1994). For the following reasons, we decline to do so.

In Waggoner, 261 Ill. App. 3d at 793-94, the appellate court held that the portions of a workers' compensation award which represent wage loss and medical payments incurred during the marriage should be classified as marital property, while the portion which replaces wages lost after dissolution should be classified as nonmarital. However, the problem with this approach is that it completely ignores section 503 of the Act, which mandates what constitutes marital and nonmarital property for purposes of disposition on dissolution of marriage.

Section 503(a) states:

"For purposes of this Act, 'marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as 'nonmarital property':

(1) property acquired by gift, legacy or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;

(6) property acquired before the marriage;

(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to ...


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