The opinion of the court was delivered by: Justice Burke
Appeal from the Circuit Court of Cook County. Honorable Robert V. Boharic, Judge Presiding.
MODIFIED OPINION UPON DENIAL OF REHEARING
The administrator of the Estate of William O'Leary (the Estate) appeals from an order of the circuit court granting the motion of plaintiff Nancy Robson, f/k/a Nancy O'Leary (Nancy), for summary judgment and denying the Estate's motion for summary judgment and for reconsideration in a declaratory judgment action brought by Nancy who sought a declaration pursuant to section 2--701 of the Illinois Code of Civil Procedure (735 ILCS 5/2-701 (West 1996)) that her interest as designated beneficiary in the death benefits under the pension trust of her former husband William O'Leary (William) had not been terminated upon her divorce from William. On appeal, the Estate contends that (1) pension trust benefits are considered property in the State of Illinois and, therefore, the trial court erred in finding that Nancy had not terminated her right to William's pension trust in the divorce proceeding between the parties notwithstanding the fact that Nancy had remained the designated beneficiary after her divorce from William; (2) the trial court erred in striking affidavits submitted by the Estate that allegedly evidenced William's intent that Nancy receive no more of his property than she had through the parties' divorce; and (3) the trial court erred in failing to do equity to the Estate, and thereby to William's children, by finding that Nancy, as designated beneficiary, was the rightful owner of the death benefits payable under William's pension trust. For the reasons set forth below, we reverse and remand for further proceedings.
Nancy and William were married on October 22, 1977. William was the owner of interests under a pension trust, Pension Plan No. 2 (Plan 2) and No. 5 (Plan 5), held by the Electrical Contractors Association Local 113 and Local 134, I.B.E.W. Joint Pension Trust of Chicago, Illinois, and administered by the Electrical Insurance Trustees (defendant trustees). On February 8, 1982, William executed a "Change of Beneficiary" form designating Nancy, his then wife, as his beneficiary under his pension trust in the event of his death. This form is included in the record, but it makes no reference to either Plan 2 or Plan 5. On November 15, 1982, William executed a "Designation of Beneficiary" form, once again naming Nancy, his then wife, as his beneficiary under Plan 5 in the event of his death.
On October 6, 1992, the trial court granted Nancy's petition for a dissolution of marriage. The dissolution judgment, prepared by Nancy's counsel and entered by the court, provides, inter alia, that Nancy is to resume her former surname Robson. The dissolution judgment also contains provisions awarding to Nancy and William enumerated items of personal and real property. Among these provisions are two paragraphs that divide and award the pension plans held by Nancy and William, respectively. Paragraph F provides that Nancy is awarded 100% of the interest she holds in any retirement funds with her employer. Paragraph G divides the marital portion of William's pension trust equally between Nancy and William.
This paragraph specifies:
"G.[William's] pension with the Electrical Contractors Association Local 113 and Local 134 Pension Plan numbers 2 & 5 shall be divided equally between the parties with regard to the marital portion of [William's] pension. ***"
The dissolution judgment does not provide Nancy with a right of survivorship in William's pension trust. The dissolution judgment does contain a provision, found at paragraph K, that terminates the present and future rights and claims that either Nancy or William may have against the marital property of the other or his or her estate. Specifically, this paragraph provides:
"K.Each of the parties' rights and claims with regard to dower, homestead and all other property rights and claims which they may have or hereafter have, as husband, wife, widower, widow, or otherwise, by reason of the marital relationship now existing between the parties hereto under any present or future law of any state or the United States of America *** in and to, or against the property of the other or his or her estate, whether now owned or hereafter acquired by such other party is hereby terminated."
In addition to dividing up the property between Nancy and William and terminating the rights and claims of Nancy and William to the divided property, the dissolution judgment directs, in paragraph G, that a Qualified Domestic Relations Order (QDRO) be entered to effectuate the division of the marital portion of Plan 2 and Plan 5 of William's pension trust. On June 1, 1995, the trial court entered a QDRO pursuant to, and within the meaning of, the Retirement Equity Act of 1984 (Pub. L. No. 98-397, 98 Stat. 1426 (1984)). The QDRO, which was drafted by Nancy's counsel, incorporates the provisions contained in the dissolution judgment and establishes Nancy's one-half interest in the marital portion of Plan 2 and Plan 5. The QDRO provides, inter alia:
"G. The Plan Administrator of PLAN NO. 2 shall direct the Trustee or Trustees of PLAN NO. 2 to allocate Fifty Percent (50%) of the marital portion of the benefit of [William] in PLAN NO. 2 to [Nancy].
J. The Plan Administrator of PLAN NO. 5 shall direct the Trustee or Trustees of PLAN NO. 5 to allocate Fifty Percent (50%) of the marital portion of the assets held for the benefit of [William] in PLAN ...