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In re Marriage of Carrier

July 22, 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.

PUBLISHED

Modified Upon Denial of Rehearing

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 an award of 9% postjudgment interest.

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 ...


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