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In re Marriage of Carrier

June 3, 2002

IN RE MARRIAGE OF MARY PIXIE CARRIER, PETITIONER-APPELLEE AND CROSS-APPELLANT,
AND GREGORY F. CARRIER, RESPONDENT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 99-D-1193 Honorable John G. Radosevich, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

Pursuant to a judgment of dissolution entered on June 14, 2000, the respondent, Gregory Carrier, was to transfer $725,000 from his individual retirement account (IRA) to the petitioner, Mary Pixie Carrier. On November 27, 2000, Mary filed a rule to show cause and requested an award of postjudgment interest after Gregory failed to execute the necessary documents to effectuate the transfer. Following a hearing, the trial court awarded Mary postjudgment interest for the period of September 28, 2000, until the date that the transfer was finally accomplished. Additionally, because the market value of the IRA had decreased since the entry of the dissolution judgment, the trial court apportioned the loss between Gregory and Mary. Both parties have appealed from this order. Gregory argues that the trial court abused its discretion in awarding postjudgment interest. Mary argues that the trial erred in apportioning the loss in value of the IRA and in not awarding postjudgment interest from the date that the dissolution judgment was entered.

The facts relevant to the instant appeal are as follows. On June 14, 2000, pursuant to a marital settlement agreement, the trial court entered a judgment dissolving the parties' marriage. Section 11.2 of the dissolution judgment provided as follows:

"11.2. As a further division of property rights, the Wife shall retain as her sole and separate property, free and clear of any and all rights, claims or interest of the Husband, the following items:

d. The sum of $725,000 which shall be transferred to the Wife (or her directed retirement account) from the Husband's Fidelity Investments IRA/SEP account #143-140279/143-133736 pursuant to a Qualified Domestic Relations Order."

On June 14, 2000, prior to the entry of the dissolution judgment, the trial court conducted a prove-up of the settlement agreement. At the prove-up, Gregory testified that he understood that Mary would receive $725,000 from his IRA account regardless of whether the market value of the account rose or fell following the entry of the judgment.

On November 27, 2000, Mary filed a petition for a rule to show cause. In her petition, Mary alleged that, on three different occasions, her attorney had written to Gregory's attorney requesting his cooperation in effectuating the transfer of the $725,000. Mary alleged that, despite these efforts, Gregory failed to execute a letter of direction instructing Fidelity to transfer the funds. Mary requested the entry of an order requiring Gregory to execute all documents necessary to effectuate the transfer. Mary also requested the award of 9% postjudgment interest pursuant to section 2--1303 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1303 (West 2000)).

On February 23, 2001, the trial court conducted an evidentiary hearing on the petition for the rule to show cause. At the hearing, numerous correspondences between the parties were introduced into evidence. In a letter dated June 22, 2000, Mary's attorney advised Gregory's attorney that Mary's financial advisor would be "effectuating" the transfer. In another letter dated August 9, 2000, Mary's attorney wrote to Gregory's attorney and indicated that Fidelity was "dragging their feet." The letter requested that Gregory execute a letter of direction instructing Fidelity to transfer the funds.

On August 16, 2000, Gregory wrote to Mary's attorney and indicated that he had spoken to Fidelity that day and that Fidelity needed some direction as to how the "assets [would] be split." Gregory advised that Mary might want to speak with Fidelity prior to "firing off the letter you enclosed for my signature." Gregory testified that he had enclosed a letter of direction to Fidelity in this August 16, 2000, correspondence to Mary's attorney.

Mary's attorney, however, denied that the letter of direction was enclosed in Gregory's August 16, 2000, correspondence. Mary's attorney sent Gregory's attorney letters on August 21, 2000, and September 18, 2000, again requesting that he provide a letter of direction. As of the date of the hearing, Mary's attorney still had not received the requested letter of direction from Gregory.

Gregory testified that sometime after September 1, 2000, the market value of the account started to decrease. By the time of the hearing, the account was worth $120,000 less than it was at the time the dissolution judgment was entered. Gregory testified that his understanding of the settlement agreement was that the parties were to divide the IRA account on a percentage ratio, with Mary to receive 76% and him to receive 24%. At the time the dissolution judgment was entered, 76% of the IRA was worth approximately $725,000. However, because the value of the account had gone down, Gregory asserted that the value of Mary's share had also decreased.

Gregory further testified that he cooperated in the efforts to transfer the funds and provided the requested letter of direction. After receiving several letters from Mary's attorney in August 2000, he went to Fidelity's offices to attempt to effect the transfer in September 2000. Gregory testified that he wanted to liquidate the funds in order to preserve the principal. However, he was unable to accomplish any of these tasks because the account had been frozen as a result of the divorce proceedings. Gregory acknowledged that he had taken no further action to attempt to transfer the funds.

On March 12, 2001, the trial court entered its written order. The trial court found that Mary had initially undertaken the responsibility to effect the transfer and that all losses in the market value of the account between the date of the judgment and September 1, 2000, would be allocated to her. The trial court found that for the period between September 1, 2000, and September 28, 2000, each of the parties should assume a proportion of the loss in market value in accordance with his or her ratio of interest (Mary 76.32% and Gregory 23.68%). Finally, the trial court found that Gregory was responsible for all of the delay following September 28, 2000, and that all losses in the account's value during this time would be allocated to him. The trial court also awarded Mary 9% interest on the amount she was entitled to receive on September 28, 2000. Interest was to be calculated from the date of September 28, 2000, until the date that the transfer was finally accomplished. The trial court found that the total amount due to Mary through March 9, 2001, was $733,078. The trial court ordered Gregory to send a letter of direction to Fidelity within 48 hours instructing a transfer of this amount to Mary.

On May 11, 2001, Mary presented an emergency motion requesting that Gregory be ordered to sign certain transfer documents and requesting that an additional $10,875 in interest be added to the judgment amount. On May 21, 2001, the trial court ordered Gregory to execute a letter of direction instructing Fidelity to transfer an additional $10,875. Gregory ...


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