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01/14/97 MARRIAGE THOMAS WISNIEWSKI

January 14, 1997

IN RE: THE MARRIAGE OF THOMAS WISNIEWSKI, PETITIONER-APPELLANT, AND VIRGINIA WISNIEWSKI, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Champaign County. No. 80C1170. Honorable George S. Miller, Judge Presiding.

As Corrected February 24, 1997.

Honorable Robert W. Cook, J., Honorable John T. McCullough, J. - Concur, Honorable Rita B. Garman, J. - Concur. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court.

Thomas and Virginia Wisniewski were divorced in an order entered on June 8, 1981. Thomas appealed the property distribution established in the order, and this court reversed and remanded. In re Marriage of Wisniewski, 107 Ill. App. 3d 711, 437 N.E.2d 1300, 63 Ill. Dec. 378 (1982). On April 26, 1983, on remand, the trial court entered a new judgment, which reserved jurisdiction, until Thomas retired, to apportion the marital interest in his pension payments. The benefits were apportioned in an order dated March 22, 1996. Thomas appeals, arguing that the award gave Virginia a share of his earnings after dissolution. Virginia argues that the method of division was determined in the 1983 order, and this appeal is untimely. We hold that the 1983 order did not determine a method of apportionment and that the trial court did not abuse its discretion in dividing the pension. Accordingly, we affirm.

FACTS

Thomas and Virginia were married 27 years. Three years prior to the marriage, Thomas became a participant in the Illinois Teacher's Retirement System (TRS). He remained a participant in TRS after the marriage, but he eventually switched to the Illinois State Universities Retirement System (SURS). Thomas continued to participate in SURS after the marriage was dissolved on June 8, 1981. Thomas is now entitled to a pension from each system.

Both the TRS and SURS plans are "defined benefit plans." Under the formula applicable to Thomas, the amount of benefits is the product of final average salary multiplied by a pension multiplier. Final average salary is the average of the salaries of 4 of the last 10 years in which the participant's salary was the highest. Under section 20-106 of the Retirement Systems Reciprocal Act (40 ILCS 5/20-106 (West 1994)), the same final average salary is used under both of Thomas' pension plans.

The pension multiplier starts at 1.67% and grows every year. It increases by 1.67% for each of the first 10 years of participation in each plan. It increases 1.9% for each of the next 10 years. 40 ILCS 5/15-136, 16-133(a)(B)(1) (West 1994). Thomas accrued a pension multiplier of 30% under the TRS plan. He accrued 5.01% of that multiplier prior to the marriage (3 x 1.67), and 24.99% during the marriage. By the time of dissolution, Thomas had accrued a pension multiplier under the SURS plan of 24.3%. Thomas' SURS multiplier continued to grow after the dissolution.

An early retirement penalty equal to one-half of 1% is assessed against final payments for every month before age 60 a participant retires. 40 ILCS 5/15-136(b), 16-133(a)(B) (West 1994).

On remand in 1983, the trial court did not make an allocation of Thomas' retirement interest. Instead it provided that:

"Jurisdiction is continued and retained to apportion between the parties according to marital share and supervise payments of the pension if, as, and when it becomes vested in and payable to Thomas. Thomas shall promptly notify this court and Virginia as soon as his retirement date is known so that the court can appropriately deal with the pension."

Thomas did not appeal that order.

Virginia had no pension in her own name at the time of dissolution. In the period between the dissolution and Thomas' retirement, she was employed by the University of Cincinnati, from which she is now retired. During that time she accrued, and now receives, a monthly pension benefit of $925.

As Thomas worked after dissolution, his pension increased for three reasons. First, he eliminated the early retirement penalty by working past age 60. Second, his salary continued to increase in this period, thereby increasing the "final average salary" for purposes of calculating his pension. 40 ILCS 5/20-106 ...


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